Barry Smith will offer more details soon in this blog of the N.C. Supreme Court’s 5-2 vote on the Cabarrus County adequate public facilities ordinance case.

In the meantime, another significant ruling from the state’s highest court today threw out the N.C. Court of Appeals’ unanimous opinion in a case involving a 2007 drowning at a park owned by Pasquotank County.

Appellate judges had ruled that government immunity did not apply in the case because the drowning took place in a swimming hole at the park’s Fun Junktion, an amenity serving a “proprietary” rather than a “government” function.

But Justice Patricia Timmons-Goodson, writing for a unanimous Supreme Court, said the distinction between “proprietary” and “government” is not as clear as the Appeals Court had suggested.

We recognize that not every nuanced action that could occur in a park or other recreational facility has been designated as governmental or proprietary in nature by the legislature. We therefore offer the following guiding principles going forward. When the legislature has not directly resolved whether a specific activity is governmental or proprietary in nature, other factors are relevant. We have repeatedly held that if the undertaking is one in which only a governmental agency could engage, it is perforce governmental in nature. … This principle remains true. So, when an activity has not been designated as governmental or proprietary by the legislature, that activity is necessarily governmental in nature when it can only be provided by a governmental agency or instrumentality.

We concede that this principle has limitations in our changing world. Since we first declared in Britt, over half a century ago, that an activity is governmental in nature if it can only be provided by a governmental agency, many services once thought to be the sole purview of the public sector have been privatized in full or in part. Consequently, it is increasingly difficult to identify services that can only be rendered by a governmental entity.

Given this reality, when the particular service can be performed both privately and publicly, the inquiry involves consideration of a number of additional factors, of which no single factor is dispositive. Relevant to this inquiry is whether the service is traditionally a service provided by a governmental entity, whether a substantial fee is charged for the service provided, and whether that fee does more than simply cover the operating costs of the service provider. We conclude that consideration of these factors provides the guidance needed to identify the distinction between a governmental and proprietary activity.

The Supreme Court has ordered that the case head back to the trial court to address the issues further.