A Christmas parade ended in tragedy in 2011 when a 3-year-old child was struck and killed by a vehicle, driven by a 21-year-old. The children had participated in the parade, and when it ended ended, the young boy, his older brother and other family members and friends had exited the parade area and were passing in front of an alley near a privately-owned building on their way to a nearby restaurant.
Suddenly, the boys’ mother heard her older child scream at her 3-year-old to “Get out of the way!” Then she and the other group members saw the young child being struck with the front right bumper of a vehicle that was driving up the alley.
It was just after 8 p.m. The sun had set three hours earlier, and no public or private street lights illuminated the area. Witnesses alerted the driver the child was underneath the car and she backed up so he could be freed. He was conscious, crying and severely injured.
An apparent miscommunication resulted in it taking 14 minutes until EMS personnel arrived on site. By then, the boy was unresponsive. The emergency responders requested a trauma helicopter, but for reasons unexplained, one never came. He was taken by ambulance to a local hospital, where he died.
- Failure to ensure safe ingress and egress from the parking areas inside the parade route before, during and after the parade.
- Failure to provide pedestrians a safe exit from the parade route.
- Failure to test and ensure street lights inside, along and surrounding the parade route were properly functioning.
Although town asserted sovereign immunity, plaintiffs asserted that because it had purchased liability insurance, it waived this immunity defense. Alternatively, plaintiffs argued that because the government was engaging in proprietary or private activities (as opposed to this being a primarily government function), it could be held to account as a private entity. In support of the latter assertion, plaintiff noted the role town had made in sponsoring, organizing, publicizing and carrying out the logistics of the parade, as well as the commercial gain the town received.
After submission of extensive discoveries, the town filed a motion to dismiss on sovereign immunity grounds, and also asserting its role in the parade was governmental. It noted that it hadn’t made a profit off the parade, and it was solely for the enjoyment of the people.
Trial court denied these motions to dismiss.
However, the North Carolina Court of Appeals reversed. The court found first that the purchase of liability insurance did not mean the town had waived its sovereign immunity protection. Further, the court found the function of the town in this operation was governmental, not proprietary.
However, with respect to the issue of the town’s alleged failure to maintain safe street lighting and sidewalks, the case was remanded to trial court for consideration of the weight and sufficiency of evidence presented.
Contact the Carolina injury lawyers at the Lee Law Offices by calling 800-887-1965.
Parker v. Town of Erwin, et al., Sept. 15, 2015, North Carolina Court of Appeal
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21st Century Insurance v. Super. Ct. – Bad Faith Insurance Lawsuit, Sept. 17, 2015, Charlotte Child Injury Lawyer Blog