Daniel v. City of Morganton

• Citation: 125 N.C.App. 47,479 S.E.2d 263
• Decision Date: 07 January 1997
• Docket Number: No. COA96-267,COA96-267
• Court: Court of Appeal of North Carolina (US)
• Parties: , 114 Ed. Law Rep. 1251 Kristen S. DANIEL, Plaintiff, v. The CITY OF MORGANTON, The Burke County Board of Education, and Deborah Gober, Defendants.

Page 263

479 S.E.2d 263

125 N.C.App. 47, 114 Ed. Law Rep. 1251

Kristen S. DANIEL, Plaintiff, v. The CITY OF MORGANTON, The Burke County Board of Education and Deborah Gober, Defendants.

No. COA96-267.

Court of Appeals of North Carolina.

Jan. 7, 1997.

Daniel & LeCroy, P.A. by M. Alan LeCroy, Morganton, for plaintiff-appellant.

Patrick, Harper & Dixon by Stephen M. Thomas, Hickory, for defendant-appellee City of Morganton.

Patton, Starnes, Thompson, Aycock, Teele & Ballew, P.A. by Larry A. Ballew, Morganton, for defendants-appellees Burke County Board of Education and Deborah Gober.

SMITH, Judge.

On 19 March 1990 plaintiff was participating in softball practice with the Freedom High School girls' varsity softball team. The softball field on which practice was being held was located on a portion of land owned by defendant, Burke County Board of Education (Board) and leased and maintained by defendant, City of Morganton (City). The softball field was in the course of being constructed by the City and the surface of the playing field was rough. Grass was in intermittent spots and there were a number of bare patches and numerous rocks in the outfield. The City recreation department was in charge of getting the softball fields ready for school teams use. The recreation department was not aware that Freedom High School was using the particular field. City personnel thought the high school was using another field, the Ralph Edwards Nursery Field for practices.

Defendant Gober was employed by defendant Board as a mathematics teacher and received compensation for being the assistant coach to the girls' softball team. On 19 March 1990, Coach Gober had the outfield players, including plaintiff, engaged in a drill to practice fielding "grounders." During the drill, Gober stood at the edge of the infield approximately 70 feet from the players and hit hard grounders into the roughly surfaced outfield to be fielded by the players. Defendant Gober hit a ground ball towards plaintiff's position. The ball hit either a clump of grass or a rock and took an erratic hop and hit plaintiff in the face. The force of the ball knocked out one of plaintiff's teeth and loosened another. Plaintiff's injuries will require her to undergo future dental treatment.

In her deposition plaintiff stated that other players had been struck by balls taking erratic hops on the field. Plaintiff also stated that in the past other players had complained to the coach about the dangerousness of the field. The record also indicates that some of the parents of the players may have complained to the principal and to the head coach about the field. When asked if she considered the field to be unsafe before she was hurt, plaintiff responded "yes." Additionally, plaintiff asserted that defendant Gober had remarked that practicing grounders on the rough field gave the players an advantage over other teams during games, because others would not be as familiar with balls taking erratic hops.

Through discovery, defendants Board and Gober produced a liability policy which provided coverage to defendants for certain accidents and injuries occurring on school grounds or at school sponsored events. The insurance policy contains an exclusion entitled "Athletic or Sports Participants." The exclusion states, "This insurance does not apply to ... 'Bodily injury' to any person while practicing for or participating in any sports or athletic contest or exhibition that you sponsor."

Also produced during discovery was a lease agreement between defendant/lessor Board and defendant/lessee City. The lease contains a mutual indemnification provision, whereby the Board and the City agree to indemnify each other. The lease also has a provision requiring the Board and City to each obtain liability insurance and for each to have the other designated as a named insured in their respective policies. The lease provided that the City could use the property for park purposes while the Board could use the same for school activities. Because none of the parties have argued or relied on the lease provisions regarding insurance as a basis for recovery, we need not address the effect of these provisions.

On 19 May 1995 defendant Board and defendant Gober moved for summary judgment. Defendant City moved for summary judgment on 26 October 1995. Both motions were heard on 13 November 1995 and were granted for all defendants. From these judgments plaintiff appeals.

Plaintiff first argues that the trial court erred in granting summary judgment in favor of all defendants as to plaintiff's claims of negligence. Plaintiff's second assignment of error is that all defendants waived governmental immunity. We will address the assignments of error together as to each defendant.

Summary judgment should be granted when "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.Gen.Stat. § 1A-1, Rule 56(c) (1990). " '[I]ts purpose is to eliminate formal trials where only questions of law are involved.' " Medlin v. Bass, 327 N.C. 587, 590, 398 S.E.2d 460, 462 (1990) (quoting Kessing v. National Mortgage Corp., 278 N.C. 523, 534, 180 S.E.2d 823, 830 (1971)). In ruling on a motion for summary judgment, the trial court must view the evidence in the light most favorable to the non-moving party, who is entitled to the benefit of all favorable inferences that may reasonably be drawn from the facts proffered. Averitt v. Rozier, 119 N.C.App. 216, 218, 458 S.E.2d 26, 28 (1995).

In order for plaintiff to recover from defendants for her injuries, plaintiff must show that defendants breached the standard of care owed to her and that the governmental entities waived their immunity. The standard of care of defendants depends upon the status of plaintiff, whether she was an invitee, a licensee or a trespasser. See Hoots v. Pryor, 106 N.C.App. 397, 406, 417 S.E.2d 269, 275, disc. review denied, 332 N.C. 345, 421 S.E.2d 148 (1992).

I. The Burke County Board of Education

First, it has already been established that a plaintiff, while participating in team practice is an invitee as to a defendant school board. Clary v. Alexander County Bd. of Education, 19 N.C.App. 637, 638, 199 S.E.2d 738, 739 (1973), aff'd, 285 N.C. 188, 203 S.E.2d 820 (1974), opinion withdrawn and reversed on other grounds, 286 N.C. 525, 212 S.E.2d 160 (1975). "An owner of premises owes to an invitee the duty to exercise ordinary care to keep the premises in a reasonably safe condition and to warn the invitee of hidden perils or unsafe conditions that can be ascertained by reasonable inspection and supervision." Byrd v. Arrowood, 118 N.C.App. 418, 421, 455 S.E.2d 672, 674 (1995) (citing Roumillat v. Simplistic Enterprises, Inc., 331 N.C. 57, 64, 414 S.E.2d 339, 342 (1992)). However, "a premises owner does not have to warn an invitee of apparent hazards or circumstances of which the invitee has equal or superior knowledge. A reasonable person should be observant to avoid injury from a known and obvious danger." Farrelly v. Hamilton Square, 119 N.C.App. 541, 546, 459 S.E.2d 23, 27 (1995) (citing Roumillat, 331 N.C. 57, 67, 414 S.E.2d 339, 344).

Plaintiff's deposition shows that she knew of the danger of the rough playing field. Thus, defendant Board did not have a duty to warn plaintiff of the condition of the field, of which she was already aware. Defendant Board did not breach its duty to plaintiff.

As to immunity, a county board of education is a governmental agency, and therefore is not liable in a tort or negligence action except to the extent that it has waived its governmental immunity pursuant to statutory authority. Beatty v. Charlotte-Mecklenburg Board of Education, 99 N.C.App. 753, 755, 394 S.E.2d 242, 244 (1990).

Pursuant to N.C.Gen.Stat. § 115C-42 ... any local board of education is authorized to waive its governmental immunity from liability by securing liability insurance as provided for in the statute. The primary purpose of the statute is to encourage local school boards to waive immunity by obtaining insurance protection while, at the same time, giving such boards the discretion to determine whether and to what extent to waive immunity. The statute makes clear that unless the negligence or tort is covered by the insurance policy, sovereign immunity has not been waived by the Board or its agents.

Id. (emphasis added). In pertinent part N.C.Gen.Stat. § 115C-42 (1994) provides, "immunity shall be deemed to have been waived by the act of obtaining such insurance, but such immunity is waived only to the extent that said board of education is indemnified by insurance for such negligence or tort."

The meaning of language used in an insurance contract is a question of law for the Court, Guyther v. Nationwide Mut. Fire Ins. Co., 109 N.C.App. 506, 512, 428 S.E.2d 238, 241 (1993), as is the "construction and application of the policy provisions to the undisputed facts." Walsh v. National Indem. Co., 80 N.C.App. 643, 647, 343 S.E.2d 430, 432 (1986). If the language in an exclusionary clause contained in a policy is ambiguous, the clause is "to be strictly construed in favor of coverage." State Auto. Mut. Ins. Co. v. Hoyle, 106 N.C.App. 199, 201-02, 415 S.E.2d 764, 765, disc. review denied, 331 N.C. 557, 417 S.E.2d 803 (1992). If such an exclusion is plainly expressed, it is to be construed and enforced as expressed. Id. at 202, 415 S.E.2d at 765-66.

At the time of plaintiff's injury, the Board had a liability policy, which provided coverage to the Board and its employees for negligent acts causing injuries on school grounds and at school sponsored events. This policy contains the following exclusion, "Exclusion--Athletic or Sports Participants.... With respect to any operations shown in the Schedule, this insurance does not apply to 'bodily...