FREEMAN, Judge.

Plaintiff appeals from an order granting defendant’s motion for summary judgment on her claim that the decedent died as a result of defendant’s negligence.

On appeal, plaintiff argues that the trial court erred by granting defendant’s motion for summary judgment on the basis that defendant was entitled to governmental immunity. After careful review, we affirm the trial court’s order.

I. Factual and Procedural Background

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Defendant owns and operates the Wagram Recreation Center (“Wagram Center”) as part of its parks and recreation programs.^[1] Wagram Center consists of a gymnasium with a full-sized basketball court, a fitness room, and office and community spaces. In June 2021, Wagram Center was equipped with an air conditioning system. However, there was no air conditioning system in the gymnasium, which was equipped with ventilation fans. Defendant offered yearly memberships to use the Wagram Center gymnasium and fitness room. Membership rates for residents of Scotland County ranged from $4.00 per day to $325.00 per year “for family members [i]n one household.” Fees for out-of-county residents ranged from $7.00 per day to $500 per year for a family. In 2020, defendant spent $118,207.73 operating Wagram Center and earned $12,016.87 from all of Wagram Center’s recreation programs. In 2021, defendant spent $129,045.85 on Wagram Center’s operations and earned $6,000.73 in revenue. Defendant also offered recreation programs that did not require participants to purchase a Wagram Center membership. One of these was Adult Free Play basketball, which was held in the gymnasium. To participate in the Adult Free Play program, a participant “had to be a certain age, they had to have a physical photo ID,

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. . . they would have to sign a waiver, and it was a charge of $2[.00]. If they didn’t have the $2[.00], then [defendant] would waive it.” The decedent, twenty-four-year-old Tyrek Smith, often played Adult Free Play basketball and had signed a liability waiver to do so in November 2020. On 10 June 2021, Smith worked the third shift, 11:45 p.m. to 7:45 a.m., at a Purdue chicken processing plant. After work on 11 June, Smith went to Wagram Center for Adult Free Play basketball around 11:45 a.m. That day, the Adult Free Play session was scheduled for 11:00 a.m. to 2:00 p.m. There was no air conditioning in the gymnasium during this session. Smith started playing a pickup game of basketball with a few friends just after 11:45 am. Around 12:45 p.m., Smith laid down on the bleachers, as “it was his turn to sit down and wait[.]” Shortly after, one of his friends checked on Smith and “tried to get [Smith] to drink but he wouldn’t.” Thirty minutes later, Smith sat up “slumped over.” At some point after Smith sat down, he called his mother to tell her that he was coming home. Around 1:47 p.m., Smith fell to the floor. One of the free play participants went into the lobby and told the recreation assistant, “Somebody needs to call 911, somebody had passed out.” When the paramedics arrived around 2:00 p.m., they found Smith unconscious. Smith subsequently passed away. He died of hyperthermia, meaning his body temperature was greatly above normal. In November 2021, defendant installed an air conditioning system in the gymnasium. On 1 June 2023, plaintiff, in her capacity as the personal representative of

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Smith’s estate, sued defendant, alleging that Smith’s death was caused by defendant’s negligent operation and supervision of the gymnasium. On 22 July 2024, defendant moved for summary judgment, arguing that (1) it was entitled to governmental immunity; (2) Smith signed a liability waiver; (3) there was no evidence that it acted negligently to cause Smith’s death; and (4) if it were negligent, then Smith was contributorily negligent. On 12 August 2024, the trial court granted defendant’s motion, concluding that there were “no genuine issues of material fact, and that [defendant] is entitled to judgment as a matter of law on the issue of governmental immunity.” Plaintiff timely appealed. II. Jurisdiction “[A]ppeal lies of right directly to the Court of Appeals . . . [f]rom any final judgment of a superior court[.]” N.C.G.S. § 7A-27(b)(1) (2023). Accordingly, we have jurisdiction to review plaintiff’s appeal. III. Standard of Review “The standard of review for a trial court’s ruling on a motion for summary judgment is de novo.” Horne v. Town of Blowing Rock, 223 N.C. App. 26, 32 (2012) (cleaned up). IV. Discussion Plaintiff argues that the trial court erred by granting defendant’s motion for summary judgment because defendant “operated Wagram Recreation Center in a proprietary capacity,” so defendant did “not qualify for . . . governmental immunity[.]”

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Summary judgment “shall be rendered . . . if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to judgment as a matter of law.” N.C.G.S. § 1A-1, Rule 56(c) (2023). “All facts asserted by the adverse party are taken as true and their inferences must be viewed in the light most favorable to that party[.]” Dobson v. Harris, 352 N.C. 77, 83 (2000) (cleaned up). The showing required for summary judgment may be accomplished by proving an essential element of the opposing party’s claim does not exist, cannot be proven at trial, or would be barred by an affirmative defense, or by showing through discovery that the opposing party cannot produce evidence to support an essential element of her claim[.] Id. (cleaned up). “Under the doctrine of governmental immunity, a county is immune from suit for the negligence of its employees in the exercise of governmental functions absent a waiver of immunity.” Evans v. Hous. Auth. of City of Raleigh, 359 N.C. 50, 53 (2004) (citation omitted). In other words, “[g]overnmental immunity does not . . . apply when the municipality engages in a proprietary function.” Estate of Williams ex rel. Overton v. Pasquotank Cnty. Parks & Recreation Dept., 366 N.C. 195, 199 (2012) (citation omitted). A governmental function is one “which is discretionary, political, legislative, or public in nature and performed for the public good [o]n behalf of the State rather than

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for itself[.]” Britt v. City of Wilmington, 236 N.C. 446, 450 (1952). Generally, “[w]hen a municipality is acting [o]n behalf of the State in promoting or protecting the health, safety, security or general welfare of its citizens, it is an agency of the sovereign.” Id. (cleaned up). However, when a municipality “engages in a public enterprise essentially for the benefit of the compact community, it is acting within its proprietary powers.” Id. at 451. “In determining whether an entity is entitled to governmental immunity, the result therefore turns on whether the alleged tortious conduct of the county or municipality arose from an activity that was governmental or proprietary in nature.” Estate of Williams, 366 N.C. at 199. Our Courts have applied a three-step analysis to determine whether an activity is governmental or proprietary in nature stating: First, a court must consider whether the legislature has designated the activity as governmental or proprietary. Second, 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 government agency or instrumentality. Finally, 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. Bynum v. Wilson Cnty., 367 N.C. 355, 358–59 (2014) (citing Estate of Williams, 366 N.C. at 200–03 (2012) (cleaned up)). Thus, “[w]hen the legislature has not directly

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resolved whether a specific activity is governmental or proprietary in nature, other factors are relevant.” Estate of Williams, 366 N.C. at 202. We address each factor in turn. A. Legislative Designation We first examine the “threshold inquiry”: “whether, and to what degree, the legislature has addressed the issue.” Meinck v. City of Gastonia, 371 N.C. 497, 503 (2018) (citation omitted). “The creation and operation of public . . . recreation programs are legitimate and traditional functions of the government.” Hickman ex rel. Womble v. Fuqua, 108 N.C. App. 80, 84 (1992) (cleaned up). Our General Assembly has declared that: [T]he public good and the general welfare of the citizens of this State require adequate recreation programs, that the creation, establishment, and operation of parks and recreation programs is a proper governmental function, and that it is the policy of North Carolina to forever encourage, foster, and provide these facilities and programs for all its citizens. N.C.G.S. § 160A-351 (2023); see also id. § 160A-353(4) (2023) (“each county . . . in this State shall have the authority to . . . [p]rovide, acquire, construct, equip, operate, and maintain . . . recreation centers, and recreation facilities[.]”). “ ‘Recreation’ means activities that are diversionary in character and aid in promoting entertainment, pleasure, relaxation, instruction, and other physical, mental, and cultural development and leisure time experiences.” Id. § 160A-352 (2023). However, “not every nuanced action that could occur in a park or other

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recreation facility has been designated as governmental or proprietary in nature by the legislature.” Estate of Williams, 366 N.C. at 202. Accordingly, we must determine whether the “nuanced activity” here has been designated as governmental by the legislature. Plaintiff argues that we should take a broad view of the “nuanced activities,” and asserts that they are: “operating a gymnasium; charging fees for the use of the gymnasium, including ‘free play’ activities; charging membership rates for its fitness room.” Defendant, on the other hand, maintains that we should only “look at the nuanced activity in which Mr. Smith was actually participating at the time of the incident to determine whether [defendant’s] operation of [Wagram Center] was governmental in nature.” Binding precedent supports that we view the “nuanced activity” narrowly. See Moffit v. City of Asheville, 9 S.E. 695, 697 (N.C. 1889) (“The liability of cities and towns for the negligence of their officers or agents depends upon the nature of the power that the corporation is exercising when the damage complained of is sustained.” (emphasis added)). For example, in Estate of Williams, the defendant-county’s alleged tortious conduct occurred in a swimming area of a public park, and the swimming area could be rented out for private purposes. 366 N.C. at 196–97. Our Supreme Court only examined the defendant-county’s maintenance and operation of that specific portion of the park, not the county’s operation of the park as a whole. Id. at 201. Further, the plaintiff’s complaint specifically identified the county’s operation

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of the swimming area as the alleged tortious conduct. Id. at 196–97. Here, plaintiff alleged in her complaint that defendant was negligent in “its operation, maintenance, supervision, and control of the Wagram Recreation Center, particularly in relationship to property upon which Tyrek Smith was harmed, injured, and died.” Plaintiff specifically alleged that the cause of Smith’s death was the lack of air conditioning in the gymnasium where Adult Free Play basketball took place. Additionally, there is no evidence in the record before us that Smith participated in any of the other recreation programs offered at Wagram Center. Because the alleged tortious conduct was defendant’s operation of the Adult Free Play basketball program, which included operating the gymnasium where Adult Free Play basketball took place, we focus our analysis on that “nuanced activity” and not defendant’s operation of Wagram Center as a whole. Offering access to an indoor gymnasium for adults to play pick-up basketball is an activity that fosters entertainment and physical development, so Adult Free Play basketball may be a recreation program that the legislature has declared as a proper governmental activity. See, e.g., Hickman, 108 N.C. App. at 84 (“[W]e hold that when a municipality provides free sports instruction . . . , it is acting in a governmental capacity. Our holding is made even clearer in light of the General Assembly’s pronouncement on the general subject [in N.C.G.S. § 160A-351].”). However, considering that the legislature has not expressly designated this activity

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as a governmental function, we will address the remaining factors.^[2] B. Governmental Exclusivity We next examine whether the nuanced activity, Adult Free Play basketball, could “only be provided by a government agency or instrumentality.” Bynum, 367 N.C. at 359 (citation omitted). If so, then the “activity is necessarily governmental[.]” Id. (citation omitted). Operating a gymnasium for pick-up basketball is not exclusively reserved for the government; it could be done by a public or private entity. Therefore, this factor is not dispositive of whether offering Adult Free Play basketball is a governmental function. But given that the distinction between exclusively governmental activities and activities that can be performed by public or private entities “lacks the utility it once had[,]” Estate of Williams, 366 N.C. at 204, as “it is increasingly difficult to identify services that can only be rendered by a governmental entity[,]” id. at 202, this factor has little weight in our analysis. C. Other Factors Finally, we examine “a number of additional factors,” such as “whether the