Irving v. Charlotte-Mecklenburg Bd. of Educ., COA12–1496.
| Decision Date | 05 November 2013 |
| Docket Number | No. COA12–1496.,COA12–1496. |
| Citation | 750 S.E.2d 1 |
| Parties | Tyki Sakwan IRVING, Plaintiff–Appellant, v. CHARLOTTE–MECKLENBURG BOARD OF EDUCATION, Defendant–Appellee. |
| Court | North Carolina Court of Appeals |
OPINION TEXT STARTS HERE
Appeal by Plaintiff from order entered 8 August 2012 by the North Carolina Industrial Commission. Heard in the Court of Appeals 13 August 2013.
Osborne Law Firm, P.C., Charlotte, by Curtis C. Osborne, for Plaintiff–Appellant.
Attorney General Roy Cooper, by Assistant Attorney General Christina S. Hayes, for Defendant–Appellee.
Randal Long (“Long”), the football coach for Providence High School (“the school”), was driving an activity bus (“the bus”) owned by the Charlotte–Mecklenburg Board of Education (“Defendant”), on 5 October 2007, when the bus collided with the rear of a vehicle driven by Tyki Sakwan Irving (“Plaintiff”). At the time of the collision, Long was transporting the school's football team to a game with another high school. Plaintiff was injured and alleges her injuries were the result of Long's negligence.
Plaintiff filed a form NCIC–T–1, Claim for Damages Under Tort Claims Act, initiating this tort claims action with the North Carolina Industrial Commission (“the Commission”) on 29 September 2010. Following multiple filings not relevant to this appeal, the Commission decided Defendant's motion for summary judgment by order entered 8 August 2012. In that order, the Commission stated:
The parties' disagreement primarily centers on whether the driver of the activity bus owned by [D]efendant in this case “was at the time of the alleged negligent act or omission operating a public school bus or school transportation service vehicle in accordance with [N.C. Gen.Stat. § ] 115C–242 in the course of his employment[.]” N.C. Gen.Stat. § 143–300.1 (2007) (emphasis added).
The Commission ruled that Long was not operating a public school bus or school transportation service vehicle in accordance with N.C.G.S. § 115C–242, because that statute did not
include or encompass transporting students in an activity bus owned by a county board of education to an extracurricular activity of the sort involved in Plaintiff's claim, namely the transportation of a high school football team to and from a football game at another high school on a Friday evening.
For this reason, the Commission granted Defendant's motion for summary judgment, based upon its ruling that the accident did not fall within the requirements of N.C.G.S. § 143–300.1 and therefore the Commission lacked subject matter jurisdiction. Plaintiff appeals.
Plaintiff argues on appeal that the Commission erred in ruling that it lacked jurisdiction over the claim and in granting Defendant's motion for summary judgment. We agree.
Collier v. Bryant, –––N.C.App. ––––, ––––, 719 S.E.2d 70, 75 (2011) (citation omitted). The Commission “shall have jurisdiction to hear and determine tort claims against any county board of education or any city board of education, which claims arise ... as a result of any alleged negligent act or omission of the driver ... of a public school bus or school transportation service vehicle when” certain criteria are met. N.C. Gen.Stat. § 143–300.1(a) (2011). If a negligent act by such a driver falls within the scope of the Tort Claims Act, the Commission has sole jurisdiction over the matter. Stein v. Asheville City Bd. of Educ., 168 N.C.App. 243, 250–251, 608 S.E.2d 80, 85–86 (2005), reversed in part not affecting this citation,360 N.C. 321, 626 S.E.2d 263 (2006).
Resolution of this matter depends on whether, as required by N.C.G.S. § 143–300.1(a), (A) the activity bus operated by Long can be considered a “public school bus” or a “school transportation service vehicle” and, if so, (B) whether Long was operating the activity bus in accord with N.C. Gen.Stat. § 115C–242 (2011). In light of sometimes inconsistent statutes and case law related to this question, we conduct an extended analysis.
The North Carolina State Board of Education (the State Board) formerly owned and operated school buses. Turner v. Board of Education, 250 N.C. 456, 463, 109 S.E.2d 211, 217 (1959). At that time, the State Board could be sued for torts involving school bus drivers serving local schools. Id. at 463, 109 S.E.2d at 216–17. Later, in the 1950's, the State Board transferred ownership of these buses to the local boards of education and, at that time, the General Assembly declared that the State Board would not be liable for negligent acts associated with the operation of these buses. Id. at 463–64, 109 S.E.2d at 217.
The provision was made by reason of the fact that the State Board of Education had previously operated the busses, and upon the transfer of ownership and operation the State was disclaiming responsibility for negligent operations after the transfer. As a corollary to the Act withdrawing liability of the State Board of Education for negligent acts of school bus drivers, the General Assembly placed the financial responsibility for such act squarely on the county and city boards of education. G.S. 143–300.1. The section, effective July 1, 1955, amended the State Tort Claims Act by prescribing that claims against county and city boards for such injuries shall be heard by the North Carolina Industrial Commission under rules of liability and procedure as provided with respect to tort claims against the State Board of Education.
Id. at 464, 109 S.E.2d at 217.N.C.G.S. § 143–300.1 provided not only for tort claims act coverage for the negligence of drivers of “public school buses,” but also for the negligence of drivers of public “school transportation service vehicles.” N.C.G.S. § 143–300.1(a). “School transportation service vehicles” are referred to as (1) “school transportation service vehicles” in N.C. Gen.Stat. § 115C–42 (2011), N.C. Gen.Stat. § 115C–255 (2011), and N.C.G.S. § 143–300.1, and as (2) “service vehicles” in N.C. Gen.Stat. § 115C–240 (2011) and N.C. Gen.Stat. § 115C–249 (2011).
By authority granted it by the General Assembly: “The State Board of Education shall promulgate rules and regulations for the operation of a public school transportation system.” N.C.G.S. § 115C–240(a) (2011). Pursuant to the State Board Policy Manual: “Local Education Agencies (LEAs) [ (local boards of education) ] shall adopt and keep on file in the office of the superintendent rules, regulations and policies to assure the safe, orderly and efficient operation of school buses, including: (1) the use of school buses under G.S. 115C–242(5)[.]” 16 N.C. Admin. Code 6B.0103 (2011). N.C.G.S. § 115C–242(5) states in relevant part: “Local boards of education, under rules adopted by the State Board of Education, may permit the use and operation of school buses for the transportation of pupils and instructional personnel as the board deems necessary to serve the instructional programs of the schools.” N.C. Gen.Stat. § 115C–242(5) (2011). Defendant's policy states:
EEAFA Extra Curricular Activity Buses Field Trips—Special Events Transportation
Special transportation by school buses or school activity vehicles will be provided for appropriate educational experiences in compliance with state law.
Activity buses and vans will be provided for activities and functions sponsored by the school system. These vehicles shall be maintained by the Transportation Department as provided for in the state law. Insurance for school activity vehicles will be provided for under the Board of Education policy.
Legal Reference: G.S. 115C–242, G.S. 115C248.
Charlotte–Mecklenburg Sch. Bd. of Educ., Policy Code: EEAFA, Charlotte–Mecklenburg School Board Policies, (http:// policy. microscribepub. com/ cgi- bin/ om_ isapi. dll? client ID= 307134909 & depth=2 & infobase=charmeck.nfo & record=|5A2Œ & softpage=PL_frame) (last revised May 27, 1986).
Defendant's “Regulation Code: EEAFA–R Bus Transportation for Special Occasions and Activity Buses/Vans” states in relevant part:
Bus Transportation for Special Occasions
2. Special transportation shall provide for the transportation of students, teachers, and approved supervisory personnel only to activities, performances, and events directly related to the school curriculum of the Charlotte Mecklenburg Schools.
3. Regular school buses shall not be used for transportation to destinations outside of Mecklenburg County, except for wheelchair lift equipped buses which may travel into an adjacent county but not out of state.
4. Drivers used for special transportation must have a valid commercial driver's license with a school bus or passenger endorsement.
....
6. It is the transportation specialist's responsibility to obtain approved, qualified drivers for field trips.....
operator's license or a school bus license.
3. The maximum permissible speed for an activity bus is 45 miles per hour. All other traffic laws governing the operation of public school buses apply to activity buses. The maximum permissible speed for an activity van is 55 miles per hour.
....
Legal Reference: G.S. 115C–242(5).
Charlotte–Mecklenburg Sch. Bd. of Educ., Regulation Code: EEAFA-R, Charlotte–Mecklenburg School Board Policies, (http:// policy. microscribepub. com/ cgi- bin/ om_ isapi. dll? client ID= 307135360 & depth=2 & infobase=charmeck.nfo & record=|5ABŒ & softpage=PL_frame) (last revised June 9, 1986).
N.C.G.S. § 115C–242(5), the “Legal Reference” given in support of the above policy, states in relevant part:
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Irving v. Charlotte-Mecklenburg Bd. of Educ.
...of Appeals unanimously reversed the Commission and remanded the matter for further proceedings. Irving v. Charlotte–Mecklenburg Bd. of Educ., 230 N.C.App. 265, 278–79, 750 S.E.2d 1, 9 (2013). Defendant filed a petition for discretionary review, which this Court allowed on 19 August 2014.In ......