Conundrums of government torts & immunity

I've always found it challenging to teach the unit on state tort law involving local governments.  That may be in part because: it's difficult to paint a national picture since the states do many different things; there have been changing standards of immunity from the courts over time; legislation doesn't always cure these problems; and facts vary widely.  At least it's useful to have some interesting fact patterns.  A new North Carolina Court of Appeals case, Willett v. Chatham County Board of Education, provides precisely that.

Plaintiff had been attending a public middle school basketball game when the bleachers folded beneath him, allegedly giving rise to injuries for which he sought redress.  The school had charged an admission fee to help support the program ($1 for students and $2 for adults).  The plaintiff argued that this charge should qualify the program as "proprietary" in character. He further argued that the school board's participation in a state-wide trust fund amounted to a waiver of immunity and that the obligation of the Board to maintain facilities in good repair gave rise to a duty that had been breached.

The appellate court found for the defendant school board on the ground that there had been no waiver of immunity by participation in the trust fund under prior precedent (North Carolina allows government entities to waive immunity to the extent of insurance coverage).  More notably, the court reiterated traditional law, explaining that "If the undertaking of the municipality is one in which only a governmental agency could engage, it is governmental in nature. It is proprietary and 'private' when any corporation, individual, or group of individuals could do the same thing." The court rejected the claim that the athletics program had become proprietary because a fee had been charged, citing the statute giving local boards of education the power to regulate programs "including a program of athletics, where desired, without assuming liability therefor."  The school board's statutory duty to maintain the school in good repair was focused on the obligation to protect public investment and did not give rise to a private cause of action against the board.