Lindler v. Duplin County Bd. of Educ.

• Decision Date: 02 February 1993
• Docket Number: No. 924SC127,924SC127
• Citation: 425 S.E.2d 465,108 N.C.App. 757
• Court: North Carolina Court of Appeals
• Parties: , 80 Ed. Law Rep. 361 Frances LINDLER, Plaintiff, v. DUPLIN COUNTY BOARD OF EDUCATION.

Page 465

425 S.E.2d 465

108 N.C.App. 757, 80 Ed. Law Rep. 361

Frances LINDLER, Plaintiff, v. DUPLIN COUNTY BOARD OF EDUCATION.

No. 924SC127.

Court of Appeals of North Carolina.

Feb. 2, 1993.

Ferguson, Stein, Watt, Wallas, Adkins & Gresham, P.A., by John Gresham and S. Luke Largess, Charlotte, for plaintiff-appellant.

Richard Schwartz & Associates, by Richard A. Schwartz and Laura E. Crumpler, Raleigh, for defendant-appellee.

EAGLES, Judge.

Plaintiff argues that the trial court erred by granting the defendant's Rule 12(b)(6) motion. Specifically, plaintiff argues that the defendant, Duplin County Board of Education (Board), waived its sovereign immunity pursuant to G.S. § 115C-42 by purchasing liability insurance which allegedly covered the plaintiff's injuries. The defendant, on the other hand, argues that G.S. § 115C-524(b) and Plemmons v. City of Gastonia, 62 N.C.App. 470, 302 S.E.2d 905 disc. review denied, 309 N.C. 322, 307 S.E.2d 165, 166 (1983) prevent liability from attaching to the Board because the school was not being used for a school purpose at the time of the plaintiff's accident. We agree with the defendant.

G.S. § 115C-42 provides, in pertinent part:

Any local board of education, by securing liability insurance as hereinafter provided, is hereby authorized and empowered to waive its governmental immunity from liability for damage by reason of death or injury to person or property caused by the negligence or tort of any agent or employee of such board of education when acting within the scope of his authority or within the course of his employment. Such 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.

G.S. 115C-524(b) provides in pertinent part:

Notwithstanding the provisions of G.S. 115C-263 and 115C-264, local boards of education shall have the authority to adopt rules and regulations by which school buildings, including cafeterias and lunchrooms, may be used for other than school purposes so long as such use is consistent with the proper preservation and care of the public school property. No liability shall attach to any board of education, individually or collectively, for personal injury suffered by reason of the use of such school property.

(Emphasis ours.)

In Plemmons, a minor allegedly sustained serious and permanent brain damage as the result of a fall from gymnasium bleachers to the floor. The defendant Board of Education argued that because of the express language of G.S. § 115C-524(b) and the fact that the gymnasium was leased to the City of Gastonia at the time of the accident, the Board was immune from liability. The plaintiff, on the other hand, argued "as a policy matter, that G.S. § 115C-524 should be construed to include an active negligence caveat and that ... the statute's operation [should be limited] to circumstances in which liability is sought to be imposed on a Board of Education solely by reason of its status as landlord." Id. at 473, 302 S.E.2d at 907. Our court held that "the clear, specific mandate of the statute categorically bars liability[.]" Id. at 472, 302 S.E.2d at 906. The Court observed that although the construction proffered by the plaintiff "would be the more humane, we simply cannot read into a statute a requirement that is not there. G.S. § 115C-524 provides no chink in its armor of immunity, even for the sword of active negligence. To accept plaintiffs' argument would render the statute superfluous." Id. at 473, 302 S.E.2d at 907.

The plaintiff argues that Plemmons does not control the instant case because (1) the court did not directly address the effect of G.S. § 115C-42 on G.S. § 115C-524(b) and (2) that the language regarding active negligence was mere obiter dicta. We disagree and find that we are bound by Plemmons. But even assuming, arguendo, that the Plemmons decision does not control the instant case, we nevertheless believe that the Plemmons Court's analysis is equally valid here. The clear intent of the legislature was set out in the plain language of G.S. § 115C-524(b) which explicitly precludes liability from attaching to schools when the school facilities are being used for non-school purposes.

In any event, we also note that other well established principles of statutory construction support our holding. First, "[i]t is always presumed that the legislature acted with care and deliberation and with full knowledge of prior and existing law." State v. Benton, 276 N.C. 641, 658, 174 S.E.2d 793, 804 (1970) (citations omitted). The General Assembly originally adopted the statutes now codified as G.S. § 115C-42 (1955 N.C.Sess.Laws c. 1256) and G.S. § 115C-524(b) (1955 N.C.Sess.Laws c. 1372, art. 15, s. 9) in 1955. However, it was not until 1963 that our legislature enacted the portion of G.S. § 115C-524(b) which provides: "No liability shall attach to any board of education, individually or collectively, for personal injury suffered by reason of the use of such school property." 1963 N.C.Sess.Laws c. 253. If in 1963 the General Assembly had intended for sovereign immunity to be waived to the extent of liability insurance for personal injury resulting from non-school use of school property, they would not have added to G.S. § 115A-524(b) the unambiguous language quoted...