Appeal by plaintiff from an order entered 9 August 2006 by
Judge Ronald E. Spivey in Guilford County Superior Court. Heard in
the Court of Appeals 28 March 2007.
Smith, James, Rowlett & Cohen, LLP, by Norman B. Smith, for
Hill Evans Jordan & Beatty, by Polly D. Sizemore, for
William R. Sisk (plaintiff) appeals from the dismissal of
his complaint for failure to state a claim upon which relief could
be granted. After careful consideration, we affirm the trial
court's dismissal of this action. Plaintiff was a passenger in a car that was participating in
a funeral procession. The car in which plaintiff was riding was
struck while it was going through an intersection. As a result of
the accident, plaintiff sustained a spinal cord contusion and a
Plaintiff alleges that the City of Greensboro (the City) had
been notified about the funeral and was escorting the procession.
Plaintiff claims that the City failed to follow standard operating
procedure by: (1) not altering the operation of the traffic light;
and/or (2) not stationing police officers and police vehicles in
such a manner as to prevent automobiles from entering the
intersection until the funeral procession had passed.
Plaintiff presents one issue for this Court's review: Whether
governmental immunity applies to the City when a traffic accident
occurs on a city street during a funeral procession.
When a party files a motion to dismiss
pursuant to N.C. Gen. Stat. § 1A-1, Rule
12(b)(6), '[t]he question for the court is
whether, as a matter of law, the allegations
of the complaint, treated as true, are
sufficient to state a claim upon which relief
may be granted under some legal theory,
whether properly labeled or not.'
Whitehurst v. Hurst Built, Inc., 156 N.C. App. 650, 653, 577 S.E.2d
168, 170 (2003) (citations omitted). The complaint must be
liberally construed and should not be dismissed 'unless it appears
beyond a doubt that the plaintiff could not prove any set of facts
to support his claim which would entitle him to relief.' Id.
(citation omitted). This Court reviews a ruling on a motion todismiss de novo to determine the legal sufficiency of the
A motion to dismiss is properly granted in three
circumstances: (1) where the complaint reveals that no law
supports the claim; (2) a fact essential to the claim is missing;
or (3) when a fact in the complaint defeats the plaintiff's claim.
Hare v. Butler, 99 N.C. App. 693, 696, 394 S.E.2d 231, 234 disc.
review denied, 327 N.C. 634, 399 S.E.2d 121 (1990).
 Plaintiff argues that the City was not protected by
governmental immunity because the safe streets exception to
immunity applies in this case. We disagree. Acts of
municipalities can be divided into two categories: (1)
governmental functions, that is, discretionary, political,
legislative, or those public in nature preformed for the public
good; and (2) proprietary functions, that is, activities which are
commercial or chiefly for the private advantage of the compact
community. Evans v. Housing Auth. of City of Raleigh
, 359 N.C. 50,
54, 602 S.E.2d 668, 671 (2004) (citing Millar v. Town of Wilson
222 N.C. 340, 341, 23 S.E.2d 42, 44 (1942)). If the activity
complained of is governmental, the municipality is entitled to
governmental immunity. Id
. Maintenance of a public road and
highway is generally considered a governmental function; however,
exception is made in respect to streets and sidewalks of a
, 222 N.C. at 342, 23 S.E.2d at 44. The exception is found in N.C. Gen. Stat. § 160A-296(a)(2)
(2005). Under this statute, a city is under a duty to keep the
public streets, sidewalks, alleys, and bridges open for travel and
free from unnecessary obstructions
. (emphasis added). In
certain circumstances, a city's failure to keep a street
unobstructed will result in the imposition of liability. Millar
222 N.C. at 342, 23 S.E.2d at 44.
The issue in the instant case is whether this statute applies.
If it does not, plaintiff concedes that this cause of action would
be barred by the doctrine of governmental immunity.
(See footnote 1)
that the statute does not apply and plaintiff's cause of action was
properly dismissed by the trial court.
This Court has previously stated that [a]n obstruction can be
anything . . . which renders the public passageway less convenient
or safe for use. Cooper v. Town of Southern Pines
, 58 N.C. App.
170, 174, 293 S.E.2d 235, 237 (1982). Plaintiff relies on this
statement to argue that traffic on a crossing street is another
type of obstruction against which the municipality has a duty to
protect its citizens. We disagree. In Cooper
, we held that
shrubbery growing up at a railroad crossing was an obstruction
under the statute for which a municipality could be held liable.
. In that case, the shrubbery was along a public road and there
was evidence that the town had failed to trim it back. Id
Additionally, there was evidence that the town had actually been
improving the area. Id
. In the instant case, there is no evidence
that the Town had any control over the car that struck plaintiff or
that it was a fixture alongside a public road. Plaintiff attempts
to analogize a shrub to a car, but we are unwilling to expand the
holding of Cooper
in that manner. To do so would lead to the
absurd result of subjecting a municipality to potential liability
every time there is a traffic accident on a city street. In short,
a moving car that is being operated, even if negligently, cannot be
considered an obstruction within the meaning of N.C. Gen. Stat.
§ 160A-296(a)(2). Therefore, we find that the City is immune from
suit and the trial court properly dismissed plaintiff's purported
cause of action.
 Plaintiff next argues that the City breached its standard
of care by not providing a green light to the funeral procession
and a red light to the crossing traffic. In other words, plaintiff
argues that the timing of the lights fell below the City's standard
of care. Our courts, however, have 'consistently held that
installation, maintenance and timing of traffic control signals
intersections are discretionary governmental functions.' Cucina
v. City of Jacksonville
, 138 N.C. App. 99, 107, 530 S.E.2d 353, 357
(2000) (emphasis omitted and emphasis added) (citation omitted).
Because the timing of the traffic signal is a discretionarygovernmental function, and thus within the doctrine of immunity,
plaintiff has failed to state a cause of action.
 Plaintiff's final argument is that the police had a duty
to prevent automobiles on the cross street from striking
plaintiff's vehicle. We disagree. It is well settled that law
enforcement is a governmental function. Jones v. Kearns
, 120 N.C.
App. 301, 305, 462 S.E.2d 245, 247, disc. review denied
, 342 N.C.
414, 465 S.E.2d 541 (1995). As we have already stated, if an
action is considered a governmental function that action is immune
from suit. Evans
, 359 N.C. at 53-54, 602 S.E.2d at 671.
Accordingly, any nonfeasance
by the City's police department in
guarding against the type of accident that occurred in this case is
immune from suit. Therefore, we reject plaintiff's argument on
In summary, we hold that the trial court correctly determined
that the City was protected by governmental immunity, and that
plaintiff has failed to state a cause of action.
Judges TYSON and JACKSON concur.