Herring v. COUNTY BD. OF EDUC.

• Decision Date: 02 May 2000
• Docket Number: No. COA99-777.,COA99-777.
• Citation: 529 S.E.2d 458,137 NC App. 680
• Court: North Carolina Court of Appeals
• Parties: Loryn HERRING, a Minor by Raymond M. MARSHALL, Her Guardian Ad Litem and Bessie Herring, Plaintiffs, v. WINSTON-SALEM/FORSYTH COUNTY BOARD OF EDUCATION and Ronald Liner, Defendants.

529 S.E.2d 458

137 NC App. 680

Loryn HERRING, a Minor by Raymond M. MARSHALL, Her Guardian Ad Litem and Bessie Herring, Plaintiffs, v. WINSTON-SALEM/FORSYTH COUNTY BOARD OF EDUCATION and Ronald Liner, Defendants.

No. COA99-777.

Court of Appeals of North Carolina.

May 2, 2000.

Kennedy, Kennedy, Kennedy and Kennedy, L.L.P., by Harold L. Kennedy, III and Harvey L. Kennedy, Winston-Salem, for the plaintiffs.

Young, Moore and Henderson, P.A., by Brian O. Beverly, Raleigh, for the defendants.

WYNN, Judge.

Sovereign immunity is a common law theory or defense established by the courts to protect a sovereign or state and its agents from suit.¹ The defendants in this case contend that the trial court erred in denying their summary judgment motion based on the doctrine of sovereign immunity. Because we hold that (1) the doctrine of sovereign immunity applies in this case and (2) the defendants did not waive their immunity through the purchase of liability insurance under N.C. Gen.Stat. § 115C-42, we reverse the trial court's judgment denying the defendants' summary judgment motion.

In January 1995, Ronald Liner, the assistant principal of Lewisville Elementary School in Winston-Salem, North Carolina, changed nine-year-old Loryn Herring's bus stop in response to a complaint that she had been assaulted by several boys while on a school bus. Approximately five months later, a vehicle struck Loryn as she crossed East Fifth Street in route to that bus stop. Loryn suffered serious, painful and permanent bodily injuries, including permanent and severe brain damage.

Through her guardian ad litem, Loryn, along with her mother on her own behalf, brought actions against the Winston-Salem/Forsyth County Board of Education and Ronald Liner. Their complaint alleged that the defendants were negligent, breached fiduciary duties and committed constructive fraud by changing the location of Loryn's bus stop.

The defendants responded by asserting sovereign immunity and moving to dismiss the action under N.C. Gen.Stat. § 1A-1, Rule 12(b)(6) stating that:

... all conduct by these defendants, or any other employees or agents of the Winston-Salem/Forsyth County Board of Education, which relates in any way to the allegations of injury or damage in the Amended Complaint, was performed by such persons in their official capacity as employees and/or agents of the Winston-Salem/Forsyth County Board of Education and pursuant to its governmental authority.... and ... [the] defendants are immune from any liability or damages resulting from their conduct in pursuit of governmental functions.

The defendants' motion to dismiss was converted into a motion for summary judgment by the subsequent filing of an affidavit and supporting documents.

Additionally, the plaintiffs motioned the trial court to compel arbitration on the grounds that:

1. Insurance policies purchased for Defendant, Winston-Salem/Forsyth County Board of Education, which cover the allegations in Plaintiff's Amended Complaint allow Defendants to have the controversy submitted to arbitration.

2. As a third party beneficiary of those contracts, Plaintiffs are entitled to have this case submitted to arbitration.

Following a hearing, the trial court denied: (1) the defendants' motion for summary judgment based on the doctrine of sovereign immunity and (2) the plaintiffs' motion to compel arbitration. From this order, both the plaintiffs and defendants appeal; but, because we find that sovereign immunity bars the plaintiffs' claims, we do not reach the issue of whether this matter should have been submitted to arbitration.

I. EXCEPTIONS TO THE DOCTRINE OF SOVEREIGN IMMUNITY

The defendants contend that because sovereign immunity applies in this case, the trial court erred in denying their summary judgment motion. The plaintiffs, on the other hand, contend that the doctrine of sovereign immunity does not apply because the facts show three exceptions or exclusions to applying the doctrine of sovereign immunity: (1) the duty breached in this case was a ministerial or proprietary function; (2) the plaintiffs' claim for negligent supervision; and (3) the plaintiffs' claim for constructive fraud. We address each of the plaintiffs' contentions separately.

First, the plaintiffs argue that a school official's duty of disciplining students is a ministerial or proprietary duty. They contend that Ronald Liner's failure to impose the appropriate discipline upon the boys who allegedly attacked the minor plaintiff constituted a failure of this ministerial duty, thereby precluding the sovereign immunity defense.

"As a general rule, the doctrine of governmental, or sovereign immunity bars actions against, inter alia, the state, its counties, and its public officials sued in their official capacity." Messick v. Catawba County, 110 N.C.App. 707, 714, 431 S.E.2d 489, 493 (1993). The doctrine applies when the entity is being sued for the performance of a governmental function. See id. But it does not apply when the entity is performing a ministerial or proprietary function. See id.; see also Broome v. City of Charlotte, 208 N.C. 729,182 S.E. 325 (1935).

Governmental functions are those which are "`discretionary, political, legislative, or public in nature and performed for the public good in behalf of the State.'" Hickman v. Fuqua, 108 N.C.App. 80, 83, 422 S.E.2d 449, 451 (1992) (quoting Britt v. City of Wilmington, 236 N.C. 446, 450, 73 S.E.2d 289, 293 (1952)). "By contrast, the proprietary activities undertaken by a municipality are those which are `commercial or chiefly for the private advantage of the compact community.'" Id. (quoting Britt, 236 N.C. at 450, 73 S.E.2d at 293). The test for distinguishing between governmental and proprietary functions is as follows:

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....

Britt, 236 N.C. at 451, 73 S.E.2d at 293.

The context of the imposition of discipline by the school official in this case was within the school's performance of its statutory duty of transporting students to school. This statutory duty, as our courts have previously determined, is an accepted governmental function. See Benton v. Board of Education, 201 N.C. 653, 657, 161 S.E. 96, 97 (1931) (holding that in performing the statutory duty of transporting students to school, the county school board is exercising a governmental function); see also Rowan County Board of Education v. United States Gypsum Co., 332 N.C. 1, 11, 418 S.E.2d 648, 655 (1992) (stating that "[e]ducation is a governmental function so fundamental in this state that our constitution contains a separate article entitled `Education.'"). Therefore, the instant case does not fall within the ministerial duty exception to the doctrine of sovereign immunity.

Next, the plaintiffs argue that because the amended complaint contained a claim for negligent supervision, the defendants were precluded from using the sovereign immunity defense. We disagree.

In Vester v. Nash/Rocky Mount Board of Education, 124 N.C.App. 400, 477 S.E.2d 246 (1996), the plaintiff-student brought a personal injury action against the board of education after he was struck by a fellow student while on the school bus. Id. Before that incident, the student who struck the plaintiff-student had other disciplinary problems and in many of those instances, no disciplinary action was taken against the student. Id. Under those facts, our Court held that the board of education did not waive sovereign immunity by purchasing liability insurance. Id. Thus, the facts in Vester did not present an exception to the doctrine of sovereign immunity.

Nonetheless, the plaintiffs in this case asserted during oral argument that Vester does not control under these facts because this case involves a matter of first impression since the issue presently before this Court— whether a claim for negligent supervision constitutes an exception to the sovereign immunity defense—was not raised in Vester.

Even if the present issue was not raised in Vester, we cannot agree with the plaintiffs' assertions that the doctrine of sovereign immunity would not apply to a claim for negligent supervision. See Collins v. North Carolina Parole Commission, 344 N.C. 179, 473 S.E.2d 1 (1996) (holding that the waiver of sovereign immunity under the Tort Claims Act was not limited to ordinary negligence, but applied for other degrees of negligence, including willful, wanton, and reckless conduct that does not rise to the level of intent). Rather, we find negligent supervision to be a viable tort claim subject to the doctrine of sovereign immunity.

Finally, the plaintiffs argue that because the amended complaint contained a claim for constructive fraud the defendants were precluded from using the sovereign immunity defense. Again, we disagree finding constructive fraud to be a viable tort claim subject to the doctrine of sovereign immunity.

Accordingly, we conclude that the instant case does not constitute an exception to the doctrine of sovereign immunity.

II. WAIVER OF SOVEREIGN IMMUNITY

Next, the plaintiffs argue that the trial court properly denied the defendants' motion for summary judgment because the Winston-Salem/Forsyth County Board of Education waived its sovereign immunity by purchasing liability insurance policies. The defendants, on the other hand, contend that those insurance policies precluded coverage for the minor plaintiff's injuries.

As a governmental agency, a county or city board of education is not liable in a tort or negligence action except to the extent that it has waived its governmental or sovereign immunity pursuant to statutory authority. See Overcash v. Statesville City Board of Education, 83 N.C.App. 21, 348 S.E.2d 524 (1986); see also Beatty v. Charlotte-Mecklenburg Board of...