Jane Doe v. Charlotte–Mecklenburg Bd. of Educ., No. COA11–1466.

• Docket Nº: No. COA11–1466.
• Citation: 283 Ed. Law Rep. 536, 731 S.E.2d 245
• Case Date: August 21, 2012
• Court: Court of Appeal of North Carolina (US)

731 S.E.2d 245
283 Ed. Law Rep. 536

Jane DOE, Plaintiff,
v.
The CHARLOTTE–MECKLENBURG BOARD OF EDUCATION and Richard Priode, individually and as an employee of the Charlotte–Mecklenburg Board of Education, Defendants.

No. COA11–1466.

Court of Appeals of North Carolina.

Aug. 21, 2012.

[731 S.E.2d 246]

Appeal by defendant Charlotte–Mecklenburg Board of Education from order entered 22 August 2011 by Judge F. Lane Williamson in Mecklenburg County Superior Court. Heard in the Court of Appeals 4 April 2012.

Essex Richards, P.A., Charlotte by Edward G. Connette and T. Patrick Matus and Karro, Sellers & Langson, Charlotte by Seth Langson, for plaintiff-appellee.

Parker, Poe, Adams & Bernstein L.L.P., Charlotte by Anthony Fox and Benjamin Sullivan, for defendant-appellant the Charlotte–Mecklenburg Board of Education.

North Carolina Advocates for Justice, by David C. Pishko, Winston–Salem and Lauren Weinstein, amicus curiae.

ERVIN, Judge.

Defendant Charlotte–Mecklenburg Board of Education appeals from an order denying its motion to dismiss Plaintiff's complaint for failing to state a claim upon which relief could be granted. In its brief, the Board contends that (1) its appeal, although interlocutory, is properly before this Court because the trial court's order amounted to a rejection of the Board's governmental immunity

[731 S.E.2d 247]

claim; (2) the Supreme Court did not hold in Craig v. New Hanover Cty. Bd. Of Educ., 363 N.C. 334, 338–42, 678 S.E.2d 351, 354–57 (2009), that state constitutional claims may rest solely upon allegations of negligence; and (3) Plaintiff had not asserted viable state constitutional claims against the Board in her complaint. After careful consideration of the Board's challenges to the trial court's order in light of the record and the applicable law, we conclude that the trial court's order should be reversed and that this case should be remanded to the Mecklenburg County Superior Court for further proceedings not inconsistent with this opinion.

I. Factual Background

On or about 13 May 2011, Plaintiff Jane Doe filed a complaint seeking to recover damages from Defendants stemming from sexual abuse that she suffered at the hands of Defendant Richard Priode, her band teacher at South Mecklenburg High School. According to Plaintiff's complaint, Defendant Priode made sexual advances towards her and eventually induced her to engage in various types of sexual activity, including oral sex and vaginal intercourse, with him both on and off school grounds. Defendant Priode was later arrested, charged, and entered a plea of guilty to taking indecent liberties with a child as a result of his involvement with Plaintiff.

In her complaint, Plaintiff asserted claims against Defendant Board for negligent hiring, supervision, and retention; negligent infliction of emotional distress; and violation of Plaintiff's rights to an education and to proper educational opportunities as guaranteed by N.C. Const. art. I, § 15 and N.C. Const. art. IX, § 1, and her right to obtain a safe education as guaranteed by N.C. Const. art. I, § 19. According to Plaintiff, the Board should have recognized the signs that Defendant Priode posed a threat to her and taken action to prevent the sexual abuse which she suffered at his hands. More specifically, Plaintiff alleged, with respect to her constitutional claims, that:

40. As a separate and distinct cause of action, Plaintiff sues the Defendants for violating her constitutional rights pursuant to North Carolina State Constitution in the following particulars:

a. Violation of Article I[,] Section 15 on the grounds that the Defendant allowed the conduct as alleged in this complaint and that this conduct deprived the Plaintiff of her right to an education that is free from harm:

b. Violation of Article IX[,] Section 1 in that the Plaintiff was denied educational opportunities free from physical harm or psychological abuse; and

c. Violation of Article I[,] Section 19 in that the Plaintiff has been deprived of her liberty, interest and privilege in an education free from abuse or psychological harm as alleged in this complaint.

41. This constitutional claim for damages is pled as an alternative remedy, should the court find that sovereign immunity or governmental immunity in any way of its various forms exists and, if it does exist, in that event Plaintiff has no adequate remedy at law and asserts the constitutional violations pursuant to the laws of North Carolina.

On 27 June 2011, the Board filed a partial motion to dismiss pursuant to N.C. Gen.Stat. § 1A–1, Rule 12(b)(6), in which it sought the dismissal of Plaintiff's constitutional claims on the grounds that Plaintiff's complaint failed to allege facts which tended to establish the Board's liability to Plaintiff for violating the various constitutional provisions cited in her complaint. On the same date, the Board filed a second partial motion to dismiss pursuant to N.C. Gen.Stat. § 1A–1, Rules 12(b)(1) and (2), in which it sought the dismissal of Plaintiff's negligent hiring, supervision, and retention and negligent infliction of emotional distress claims on the grounds that the Board “enjoy[ed] full governmental immunity[.]”

On 22 August 2011, the trial court entered an order granting the Board's motion to dismiss Plaintiff's claims for negligent hiring, supervision, and retention and negligent infliction of emotional distress, “since the Board ha [d] not waived immunity by the purchase of liability insurance.” However, the trial court denied the Board's motion to

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dismiss Plaintiff's constitutional claims in reliance on Craig. After the trial court, at the Board's request, certified the order denying the Board's motion to dismiss Plaintiff's constitutional claims for immediate appeal pursuant to N.C. Gen.Stat. § 1A–1, Rule 54(b), the Board noted an appeal to this Court from the trial court's order.

II. Legal Analysis A. Appealability

As an initial matter, we must determine whether the Board's appeal is properly before us. Although the Board acknowledges that the trial court's order is interlocutory in nature and that the trial court's order did not constitute “a final judgment as to one or more but fewer than all of the claims or parties” that was immediately appealable pursuant to N.C. Gen.Stat. § 1A–1, Rule 54(b), it contends that the trial court's refusal to dismiss Plaintiff's constitutional claims affected the Board's substantial right to governmental immunity. We believe that the Board's argument has merit.

“An interlocutory order is one made during the pendency of an action, which does not dispose of the case, but leaves it for further action by the trial court in order to settle and determine the entire controversy.” Veazey v. Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381 (citation omitted), r'hrg denied,232 N.C. 744, 59 S.E.2d 429 (1950). As a general proposition, “there is no right of immediate appeal from interlocutory orders and judgments.” Travco Hotels v. Piedmont Natural Gas Co., 332 N.C. 288, 291, 420 S.E.2d 426, 428 (1992) (citation omitted).

Nonetheless, in two instances a party is permitted to appeal interlocutory orders. First, a party is permitted to appeal from an interlocutory order when the trial court enters a final judgment as to one or more but fewer than all of the claims or parties and the trial court certifies in the judgment that there is no just reason to delay the appeal. Second, a party is permitted to appeal from an interlocutory order when the order deprives the appellant of a substantial right which would be jeopardized absent a review prior to a final determination on the merits. Under either of these two circumstances, it is the appellant's burden to present appropriate grounds for this Court's acceptance of an interlocutory appeal and our Court's responsibility to review those grounds.

Bullard v. Tall House Bldg. Co., 196 N.C.App. 627, 637, 676 S.E.2d 96, 103 (2009) (citations and quotation marks omitted).

According to well-established North Carolina law, governmental immunity is an “ ‘immunity from suit rather than a mere defense to liability [.]’ ” Craig, 363 N.C. at 338, 678 S.E.2d at 354 (quoting Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 2815, 86 L.Ed.2d 411, 425 (1985)) (emphasis omitted). For that reason, “[t]his Court has held that denial of dispositive motions such as motions to dismiss ... that are grounded on governmental immunity affect a substantial right and are immediately appealable.” Mabrey v. Smith, 144 N.C.App. 119, 121, 548 S.E.2d 183, 185 (citation omitted), disc. review denied,354 N.C. 219, 554 S.E.2d 340 (2001); see also Craig, 363 N.C. at 337, 678 S.E.2d at 354 (stating that, although the “[d]enial of a summary judgment motion is interlocutory and ordinarily cannot be immediately appealed ... the appeal [before the Court] 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”); Meherrin Indian Tribe v. Lewis, 197 N.C.App. 380, 385, 677 S.E.2d 203, 207 (2009) (recognizing that the denial of a dismissal motion lodged pursuant to N.C. Gen.Stat. § 1A–1, Rule 12(b)(6), based on a claim of sovereign or governmental immunity is immediately appealable because it affects a substantial right), disc. review denied,363 N.C. 806, 690 S.E.2d 705 (2010). The decisions allowing the immediate appeal of decisions addressing the availability of sovereign or governmental immunity hinge upon the fact that, were “ ‘the case to be erroneously permitted to proceed to trial, immunity would be effectively lost.’ ” Christmas v. Cabarrus Cty., 192 N.C.App. 227, 231, 664 S.E.2d 649, 652 (2008) (quoting Slade v. Vernon, 110 N.C.App. 422, 425, 429 S.E.2d 744, 746 (1993), implicit overruling on other grounds

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recognized in Boyd v. Robeson Cty., 169 N.C.App. 460, 470, 621 S.E.2d 1, 7,disc. review denied,359 N.C. 629, 615 S.E.2d 866 (2005)), dis...