James for James v. Charlotte-Mecklenburg Bd. of Educ.

• Decision Date: 15 February 1983
• Docket Number: No. 8226SC95,CHARLOTTE-MECKLENBURG,8226SC95
• Citation: 300 S.E.2d 21,60 N.C.App. 642
• Court: North Carolina Court of Appeals
• Parties: , 9 Ed. Law Rep. 401 Larry JAMES, Guardian ad Litem for Kristin Marie JAMES, a Minor v. TheBOARD OF EDUCATION and Susan Stewart.

Page 21

300 S.E.2d 21

60 N.C.App. 642, 9 Ed. Law Rep. 401

Larry JAMES, Guardian ad Litem for Kristin Marie JAMES, a Minor v. The CHARLOTTE-MECKLENBURG BOARD OF EDUCATION and Susan Stewart.

No. 8226SC95.

Court of Appeals of North Carolina.

Feb. 15, 1983.

Ervin, Kornfeld, MacNeill & Ervin by John C. MacNeill, Jr. and Winfred R. Ervin, Jr., Charlotte, for plaintiff-appellant.

Jones, Hewson & Woolard by Hunter M. Jones, Harry C. Hewson and R.G. Spratt, III, Charlotte, for defendants-appellees.

WELLS, Judge.

In their motion for directed verdict, defendants asserted two specific grounds: one, limited immunity, and two, an insufficient showing of negligence. Both grounds are, therefore, before us in this appeal, and we shall deal with them seriatim.

I. Immunity. The record shows that, pursuant to the provisions of G.S. 115-53, the Board was insured against tort liability. The purchase of such insurance constitutes a waiver of governmental immunity by defendant Board. See Clary v. Board of Education, 286 N.C. 525, 212 S.E.2d 160 (1975). We therefore assume that the trial court's granting of defendant Board's motion for directed verdict was not on its asserted immunity grounds. As to defendant Stewart, we assume, without deciding, that she was not entitled to a directed verdict in her asserted ground of limited immunity and that the trial court granted her motion on the alternative ground of lack of negligence. This appeal must be resolved, therefore, on the issue of whether there was a sufficient showing of negligence on the part of defendant Stewart to support a verdict for plaintiff, and we now move on to that issue.

II. Negligence. Within the general question of negligence, we must deal with each defendant discretely.

A. Defendant Board of Education.

Plaintiff produced no evidence whatsoever as to defendant Board's policies, practices, rules, regulations, or other requirements as to supervision of pupils in its elementary schools. This case was tried in the trial court and briefed and argued in this Court on the theory that defendant Stewart was negligent, and that Stewart's negligence must be imputed to defendant Board of Education under the principle of respondeat superior. Our decision that defendant Stewart was not negligent requires that we affirm the trial court's granting of defendant Board's motion for a directed verdict.

B. Defendant Stewart.

Plaintiff contends that defendant Stewart was negligent in leaving her class unsupervised or unmonitored by a person of suitable age and discretion; or, in failing to remain in the classroom when she knew or should have known that the unruly behavior of her students in her absence might result in one of them harming another. The dispositive question, therefore, as to defendant Stewart, is whether Stewart was under a duty to remain in her classroom at all times while her pupils were present in the class. We answer that question "no."

We are not aware of any previous decisions of our appellate courts involving the question we must now resolve. Decisions from other States reflect significantly differing standards of care required of public school teachers with respect to their duty to provide supervision of pupil conduct and activity. See Annot. 38 A.L.R.3d 830. We have found that our Supreme Court, in three analogous situations, has provided a standard of care applicable to this case.

In Toone v. Adams, 262 N.C. 403, 137 S.E.2d 132 (1964), the Court considered the duty of Raleigh Baseball, Inc. and the manager of a team operated by this corporation, to conduct themselves so as to not incite game fans against the plaintiff umpire and their duty to provide the plaintiff protection from incited fans. The facts in that case showed that Deal, the team's manager, had on a number of occasions during a game reacted with great hostility to calls made by the plaintiff umpire, one of these occasions being near the end of the game. When the game was over, incited Raleigh fans poured onto the field, followed the plaintiff from the field, cursing the plaintiff and challenging him to fight. One fan struck the plaintiff and injured him. Plaintiff umpire alleged that the defendant's club and its manager should have reasonably foreseen that Deal's conduct toward the plaintiff would incite the partisan crowd against plaintiff and result in an assault upon the plaintiff, and that the defendants breached their duty owed the plaintiff as an umpire to provide adequate protection for his personal safety. In sustaining the demurrer of both defendants, the Court, restating the general rule from the Restatement of Torts §§ 302 and 303, said that "an act is negligent if the actor intentionally creates a situation which he knows, or should realize, is likely to cause a third person to act in such a manner as to create an unreasonable risk of harm to another," but nevertheless held that it did not follow that Deal should have reasonably anticipated that the plaintiff would be assaulted. The Court quoted and relied on the following rule from the Court's decision in Hiatt v. Ritter, 223 N.C. 262, 25 S.E.2d 756 (1943):

"One is bound to anticipate and provide against what usually happens and what is likely to happen; but it would impose too heavy a responsibility to hold [defendants] bound in like manner to guard against what is unusual and unlikely to happen or what, as it is sometimes said, is only remotely and slightly probable."

Hiatt (cites omitted).

In Foster v. Winston-Salem Joint Venture, 303 N.C. 636, 281 S.E.2d 36 (1981), the Court considered the duty of the owners of a shopping mall to protect its patrons from harmful acts of other persons on its premises. In Foster, plaintiff, a female adult, was injured when two unidentified males assaulted her as she was attempting to place packages in her car parked in defendant mall's parking lot. On defendant's motion for summary judgment, the plaintiff's forecast of evidence showed that there had been 36 reported incidents of criminal activity at the mall during a period of one year prior to the assault on plaintiff. In overruling summary judgment for defendant, the Court established foreseeability as the test for determining the extent of a landowner's duty to safeguard his business invitees from the criminal acts of third persons, relying upon both the Restatement (Second) of Torts and previous decisions of the Court:

The plaintiff need only show that in the exercise of reasonable care the defendant should have foreseen that some injury would result from his act or omission or that consequences of a generally injurious nature might have been expected.

In resolving the issue against defendant, the Court stated:

We cannot hold as a matter of law that the 31 criminal incidents reported as occurring on the shopping mall premises within the year preceding the assault on plaintiff were insufficient to charge defendants with knowledge that such injuries were likely to occur.

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