Newgent v. Buncombe County Bd. of Educ.

• Decision Date: 19 April 1994
• Docket Number: No. 9310IC610,9310IC610
• Citation: 114 N.C.App. 407,442 S.E.2d 158
• Court: North Carolina Court of Appeals
• Parties: , 90 Ed. Law Rep. 474 Hadley NEWGENT, Administrator of the Estate of Joseph Levi Newgent, Deceased Minor, Plaintiff, v. BUNCOMBE COUNTY BOARD OF EDUCATION, Defendant.

Page 158

442 S.E.2d 158

114 N.C.App. 407, 90 Ed. Law Rep. 474

Hadley NEWGENT, Administrator of the Estate of Joseph Levi

Newgent, Deceased Minor, Plaintiff, v. BUNCOMBE COUNTY BOARD OF EDUCATION, Defendant.

No. 9310IC610.

Court of Appeals of North Carolina.

April 19, 1994.

Long, Parker, Hunt, Payne & Warren, P.A. by Ronald K. Payne, Asheville, for plaintiff-appellant.

Atty. Gen. Michael F. Easley by Asst. Atty. Gen. Richard L. Griffin, Asheville, for defendant-appellee.

WELLS, Judge.

Plaintiff assigns as error the Industrial Commission's finding and concluding that it lacked jurisdiction over this action and the dismissal of his claim. After examining the record before us, we must conclude that this assignment is without merit.

This action is governed by G.S. § 143-300.1, which provides in pertinent part:

The North Carolina Industrial Commission shall have jurisdiction to hear and determine tort claims against any county board of education ... which claims arise as a result of any alleged mechanical defects or other defects which may affect the safe operation of a public school bus ... resulting from an alleged negligent act of any maintenance personnel or as a result of any alleged negligent act or omission of the driver of a public school bus ... and which driver was at the time of the alleged negligent act or omission operating a public school bus ... in the course of his employment by or training for that administrative unit or board. (Emphasis added.)

The Commission found and concluded that the school bus driver "was not operating a public school bus in the course of her employment" at the time of the alleged negligent acts complained of; therefore, the Commission lacked jurisdiction under the statute.

Since the applicable statute is in derogation of sovereign immunity, it must be strictly construed and its terms strictly adhered to. Etheridge v. Graham, 14 N.C.App. 551, 188 S.E.2d 551 (1972). We can discern no way that defendant's employee could be considered to have been operating the bus at the time of the negligent acts complained of--not reporting to the principal that the stop had limited visibility and that she could stop the bus and pick up students on the west side of the highway, and not informing the principal or Joseph's parents that Joseph had previously crossed the highway by himself. In order to be held liable under this statute, the negligent acts or omissions complained of must have occurred while the employee was operating the bus in the course of her employment.

There is competent evidence to support the Commission's finding that the bus driver was not operating the vehicle in the course of her employment at the time of the alleged negligent acts; therefore, the findings are conclusive on appeal. See G.S. § 143-293; Mitchell v. Board of Education, 1 N.C.App. 373, 161 S.E.2d 645 (1968). For the reasons stated above, the order concluding that the Commission lacked jurisdiction over the claim is hereby

Affirmed.

ORR, J., dissents in a separate opinion.

WYNN, J., concurs.

ORR, Judge, dissenting.

Because the majority, in my opinion, construes the jurisdictional statute too narrowly, I respectfully dissent.

I do not believe that the Legislature intended for N.C.Gen.Stat. § 143-300.1 to preclude the Industrial Commission from hearing tort claims wherein certain alleged negligent acts or omissions arose out of, and were inseparably connected to, events occurring at the time a school bus driver was operating the bus in the course of her employment.

In the present case, in accordance with N.C.Gen.Stat. § 143-297, plaintiff filed an affidavit with the Commission that included a statement of facts and circumstances surrounding the injury giving rise to the claim. In this affidavit, plaintiff stated that her child, decedent, Joseph Levi Newgent, was a student at West Buncombe Elementary School assigned to bus number 463. Plaintiff stated that she and decedent lived on Cole Road, located on the West side of N.C. Hwy. 63, "a very busy highway currently under expansion by the North Carolina Department of Transportation to five lanes." Further, the affidavit stated The school bus driver, Jean Freeman, took the school bus (# 463) home with her on a daily basis. Ms. Freeman lived North of the point where Frisbee Road (off of which Cole Road is located) intersects with NC Highway 63. In the mornings, Mrs. Freeman would drive by Frisbee Road, the side on which the deceased child lived, traveling in a southerly direction. She would turn the school bus around and travel the same route in a Northerly direction. She would proceed to make one stop and then pick up Joseph Levi Newgent on the East side of NC Highway 63. Therefore, it was necessary for Joseph Levi Newgent to cross NC Highway 63 in order to board the school bus.

The bus stop where Joseph Levi Newgent was picked up was located on a[n] incline, in a curve to the right with very limited visibility. Ms. Freeman has stated ... that Joseph Levi Newgent had crossed the road twice before on his own. She further stated that she had not reported his crossing NC Highway 63 by himself to any person, including the principal of the elementary school nor to his parents. On the day of 10 December, 1990 at approximately 6:50 a.m., a period of time where there was very limited visibility, my son[, Joseph Levi Newgent,] was killed while crossing NC Highway 63 in order to await the arrival of the school bus.

Also in this affidavit, plaintiff stated that she "believe[d] Ms. Freeman was negligent by" failing to inform the principal and decedent's parents of facts Ms. Freeman observed and alternative routes...