Craig ex rel. Craig v. New Hanover County

• Decision Date: 18 June 2009
• Docket Number: No. 484PA07.,484PA07.
• Citation: 678 S.E.2d 351,363 N.C. 334
• Parties: Jon-Paul CRAIG, by his mother and next friend, Kimberly CRAIG v. NEW HANOVER COUNTY BOARD OF EDUCATION and Annette Register, in her official and individual capacity.
• Court: North Carolina Supreme Court

678 S.E.2d 351

363 N.C. 334

Jon-Paul CRAIG, by his mother and next friend, Kimberly CRAIG v. NEW HANOVER COUNTY BOARD OF EDUCATION and Annette Register, in her official and individual capacity.

No. 484PA07.

Supreme Court of North Carolina.

June 18, 2009.

On writ of certiorari pursuant to N.C.G.S. § 7A-32(b) to review the decision of a divided panel of the Court of Appeals, 185 N.C.App. 651, 648 S.E.2d 923 (2007), reversing an order denying summary judgment for defendant entered on 15 December 2006 by Judge Paul L. Jones in Superior Court, New Hanover County. Heard in the Supreme Court 9 September 2008.

Patterson Harkavy LLP, by Burton Craige, Raleigh, for plaintiff-appellant.

Hogue Hill Jones Nash & Lynch, LLP, by David A. Nash, Wilmington, for defendant-appellee New Hanover County Board of Education.

Allison Schafer, Legal Counsel, Raleigh, for North Carolina School Boards Association, amicus curiae.

HUDSON, Justice.

This case requires us to determine whether plaintiff's common law negligence claim, which will ultimately be defeated by governmental immunity because of its exclusion from defendant Board of Education's insurance coverage, provides an adequate remedy at state law. We hold that it does not and that plaintiff may therefore bring his colorable claims directly under the North Carolina Constitution. We reverse the Court of Appeals.

PROCEDURAL BACKGROUND

Jon-Paul Craig¹ (plaintiff) filed this action on 20 September 2006 to recover monetary damages from the New Hanover County Board of Education (the Board) and Annette Register, Principal at Roland Grise Middle School, in her official and individual capacity. He alleged that the defendants failed to adequately protect him from a sexual assault, and enumerated four claims. The first was based on common law negligence. His other claims asserted that the Board deprived him of an education free from harm and psychological abuse, thereby violating three separate provisions of the North Carolina State Constitution: Article I, Section 15 (right to the privilege of education); Article I, Section 19 (no deprivation of a liberty interest or privilege but by the law of the land); and Article IX, Section 1 (schools and means of education shall be encouraged).

The Board moved for summary judgment on 22 November 2006 on all claims, asserting the absence of any genuine issue of material fact and raising other defenses including governmental immunity. By an order entered 15 December 2006; the trial court denied the Board's motion for summary judgment,² and the Board appealed to the Court of Appeals on 20 December 2006.

At the Court of Appeals, a unanimous panel held that the doctrine of sovereign immunity³ defeats plaintiff's common law negligence claim because the Board does not carry insurance that would cover these claims and, thus, has never waived its immunity for the alleged injury. Craig ex rel. Craig v. New Hanover Cty. Bd. of Educ., 185 N.C.App. 651, 654-55, 648 S.E.2d 923, 925-26 (2007). Specifically, the Court of Appeals noted that the Board's excess liability insurance policy excluded coverage for any claims "arising out of or in connection with ... sexual acts, sexual molestation, sexual harassment, sexual assault, or sexual misconduct of any kind; ... [as well as] claims for negligent hiring, negligent retention, and/or negligent supervision." Id. at 654, 648 S.E.2d at 925. Thus, because the policy does not cover plaintiff's negligence claim, both statute and longstanding case law of this State establish that the Board has not waived immunity from suit. See N.C.G.S. § 115C-42 (2005) ("[S]uch immunity is waived only to the extent that said board of education is indemnified by insurance for such negligence or tort."); Ripellino v. N.C. School Bds. Ass'n, 158 N.C.App. 423, 428, 581 S.E.2d 88, 92 (2003) (holding that a school board's participation in the North Carolina School Boards Trust did not qualify as a purchase of liability insurance under the definition of N.C.G.S. § 115C-42), cert. denied, 358 N.C. 156, 592 S.E.2d 694-95 (2004).

However, the panel was divided regarding plaintiff's constitutional claims. While recognizing that direct claims under our State Constitution are allowed when a litigant possesses no adequate remedy at state law, the majority concluded that plaintiff's common law negligence claim is an adequate remedy at state law, and thus, the constitutional claims are barred. Craig, 185 N.C.App. at 655-57, 648 S.E.2d at 926-27. The dissenting opinion contended that plaintiff's negligence claim cannot be an "adequate" state remedy since governmental immunity completely defeats the claim. Id. at 657, 648 S.E.2d at 927 (Bryant, J., concurring in part, dissenting in part). By an order dated 6 March 2008, we granted certiorari to review the Court of Appeals decision only as to the issue raised in the dissenting opinion. Craig ex rel. Craig v. New Hanover Cty. Bd. of Educ., 362 N.C. 234, 659 S.E.2d 439 (2008); see N.C. R.App. P. 21(a)(2).

FACTUAL BACKGROUND

Plaintiff, a mentally disabled student with below average communication and social skills, began attending Roland Grise Middle School in New Hanover County in the sixth grade. On 6 January 2004, when plaintiff was fourteen years old and in the eighth grade, an assistant principal from Roland Grise called his mother to inform her of "some sexual experimentation" that occurred in class between plaintiff and another boy. Plaintiff alleges that he did not consent to the incident and that defendants are liable for failing to adequately protect him from sexual assault.

STANDARD OF REVIEW

Summary judgment is appropriate "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 a judgment as a matter of law." N.C.G.S. § 1A-1, Rule 56(c) (2007). Furthermore, when considering a summary judgment motion, "`all inferences of fact ... must be drawn against the movant and in favor of the party opposing the motion.'" Caldwell v. Deese, 288 N.C. 375, 378, 218 S.E.2d 379, 381 (1975) (quoting 6 James Wm. Moore, Moore's Federal Practice § 56.15[3], at 2337 (2d ed.1971)). We review a trial court's order granting or denying summary judgment de novo. See Builders Mut. Ins. Co. v. N. Main Constr., 361 N.C. 85, 88, 637 S.E.2d 528, 530 (2006) (citing Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 470, 597 S.E.2d 674, 693 (2004)). "Under a de novo review, the court considers the matter anew and freely substitutes its own judgment" for that of the lower tribunal. In re Appeal of The Greens of Pine Glen Ltd. P'ship, 356 N.C. 642, 647, 576 S.E.2d 316, 319 (2003) (citing Mann Media, Inc. v. Randolph Cty. Planning Bd., 356 N.C. 1, 13, 565 S.E.2d 9, 17 (2002)). "The showing required for summary judgment may be accomplished by proving an essential element of the opposing party's claim ... would be barred by an affirmative defense...." Dobson v. Harris, 352 N.C. 77, 83, 530 S.E.2d 829, 835 (2000) (citing Goodman v. Wenco Foods, Inc., 333 N.C. 1, 21, 423 S.E.2d 444, 454 (1992)).

Denial of a summary judgment motion is interlocutory and ordinarily cannot be immediately appealed. However, the appeal here is proper because the Board raises the complete defense of governmental immunity, and as such, denial of its summary judgment motion affects a substantial right. N.C.G.S. § 7A-27(d)(1) (2007); see Bailey v. Gooding, 301 N.C. 205, 209, 270 S.E.2d 431, 433 (1980) (explaining that "interlocutory decrees are immediately appealable only when they affect some substantial right" (citing Veazey v. City of Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381 (1950)).

As noted by the United States Supreme Court, such immunity is more than a mere affirmative defense, as it shields a defendant entirely from having to answer for its conduct at all in a civil suit for damages. See Mitchell v. Forsyth, 472 U.S. 511, 525, 105 S.Ct. 2806, 86 L.Ed.2d 411, 424 (1985). Thus, unlike affirmative defenses explicitly listed in our Rules of Civil Procedure, see N.C.G.S. § 1A-1, Rule 8(c) (2007), the denial of summary judgment on grounds of sovereign immunity is immediately appealable, though interlocutory, because it represents a substantial right, as "[t]he entitlement is an immunity from suit rather than a mere defense to liability; and ... it is effectively lost if a case is erroneously permitted to go to trial." Mitchell, 472 U.S. at 526, 105 S.Ct. at 2815, 86 L.Ed.2d at 425.

ANALYSIS

Plaintiff argues that his common law negligence claim is not an adequate remedy at state law because the doctrine of governmental immunity prevails against it. Consequently, he asserts that per this Court's decision in Corum v. University of North Carolina, 330 N.C. 761, 413 S.E.2d 276, cert. denied, 506 U.S. 985, 113 S.Ct. 493, 121 L.Ed.2d 431 (1992), he should be allowed to bring claims directly under our State Constitution that will not be susceptible to an immunity defense. We agree.

The practical effect of the Court of Appeals' holding otherwise would be to allow the doctrine of sovereign immunity to "stand as a barrier to North Carolina citizens who seek to remedy violations of their rights guaranteed by the Declaration of Rights," exactly contrary to our prior holding in Corum. Id. at 785-86, 413 S.E.2d at 291. Indeed, the application of sovereign immunity to plaintiff's common law negligence claim is integral to our assessment here of the "adequacy" of plaintiff's state law remedy. Allowing sovereign immunity to defeat plaintiff's colorable constitutional claim here would defeat the purpose of the holding of Corum.

This Court could hardly have been clearer in its holding in Corum: "[I]n the absence of an adequate state remedy, one whose state constitutional rights have been abridged has a direct claim against the State under our Constitution." Id. at 782, 413 S.E.2d at 289. In outlining the...