Stein v. Asheville City Bd. of Educ.

Decision Date03 March 2006
Docket NumberNo. 128A05.,128A05.
Citation626 S.E.2d 263
PartiesKathlyn Marie STEIN and Michael Hootstein v. ASHEVILLE CITY BOARD OF EDUCATION, Cooperative Learning Center (a/k/a Wolfe Creek School, now Buncombe Community School West, at the time administered jointly by Blue Ridge Human Services Facilities, Inc. and/or Blue Ridge Mental Health and/or Asheville City Board of Education and/or Buncombe County Board of Education), Buncombe County Board of Education, Blue Ridge Center for Mental Health, and Blue Ridge Area Authority.
CourtNorth Carolina Supreme Court

Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of the Court of Appeals, 168 N.C.App. 243, 608 S.E.2d 80 (2005), on orders entered 8 August 2003, 13 August 2003, and 8 September 2003 by Judge Zoro J. Guice, Jr. and an order signed by Judge James E. Lanning on 11 June 2001, all in Superior Court, Buncombe County. The Court of Appeals affirmed the 13 August 2003 order, reversed the 8 September 2003 order, and dismissed plaintiffs' appeal from the 11 June 2001 and 8 August 2003 orders. Heard in the Supreme Court 12 September 2005.

Orbock Ruark & Dillard, P.C., by Mark A. Leach, Winston-Salem, for plaintiffs-appellees.

Patrick, Harper & Dixon L.L.P., by David W. Hood and Michael J. Barnett, Hickory, for defendants-appellants Cooperative Learning Center, Blue Ridge Human Services Facilities, Inc., Blue Ridge Mental Health, Blue Ridge Center for Mental Health, and Blue Ridge Area Authority.

NEWBY, Justice.

The issue is whether plaintiffs have stated a claim for negligence against defendant Blue Ridge Area Authority1 ("defendant") for damages resulting from the off-campus shooting of plaintiff Stein by students who attended defendant's school. We hold plaintiffs have not stated a valid claim, and we reverse the Court of Appeals.


Plaintiff Kathlyn Marie Stein ("Stein") and husband plaintiff Michael Hootstein filed suit against defendant alleging the following facts.2 Defendant is a political subdivision of the State, organized under N.C.G.S. § 122C-101 through -200,3 that has waived sovereign immunity through the purchase of liability insurance. At the time of Stein's shooting, defendant operated the Cooperative Learning Center ("CLC"), a special school for behaviorally and emotionally handicapped children. The CLC adhered to an unwritten policy of not reporting violent or criminal student activities unless those activities were likely to expose offending students to substantial incarceration. CLC employees were instructed "to look the other way" when students engaged in, or made plans to engage in, violent or criminal acts.

In March 1998 J.B. (age thirteen) and C.N. (age fifteen) were behaviorally and emotionally handicapped CLC students. J.B. suffered from an "array of emotional problems" including violent outbursts, drug abuse, and fear of parental abuse. C.N. had threatened others openly and expressed homicidal thoughts. His mother and three uncles abused drugs, and C.N. had twice assaulted a CLC teacher.

Along with other CLC students, J.B. and C.N. traveled to and from the CLC on a public school bus driven by Nancy Patton and monitored by Gail Guzman, an unpaid volunteer. While on the bus the week before 17 March 1998, Guzman overheard two conversations between J.B. and C.N. ("the conversations"). During the first, C.N. told J.B. about a gun under his mattress at home. In the second, C.N. said, "Let's rob somebody," to which J.B. replied, "Okay." C.N. stated, "I have the gun." J.B. responded, "I'll kill them." Guzman repeated what she had heard to Patton, but neither adult informed school officials or law enforcement of the juveniles' comments.

On 17 March 1998, C.N. retrieved a gun from beneath his mattress. That same day, accompanied by eighteen-year-old Darryl Watkins and D.V. (age thirteen), J.B. and C.N. positioned themselves at an Asheville intersection. Between 7:00 p.m. and 8:15 p.m., the group approached three passing vehicles with the intent to rob and kill the drivers. At 8:15 p.m., using the gun C.N. had provided, J.B. neared Stein's car and shot Stein in the head. The bullet entered just under her left ear, struck her second cervical vertebra, pierced an artery, and lodged in her right jaw. As a result of the shooting, Stein suffers from vascular problems, a spinal fracture, nerve damage, and post-traumatic stress disorder. All four assailants pled guilty to charges stemming from the attack.

The allegations of fact summarized above were contained in plaintiffs' initial and subsequent complaints. Plaintiffs voluntarily dismissed their initial complaint without prejudice. Thereafter plaintiffs filed a new complaint and an amended complaint. The amended complaint asserts causes of action for negligence per se and common law negligence;4 as part of those claims, it alleges Patton worked for defendant and Guzman monitored the bus "within the course and scope of her duties" to defendant. The trial court dismissed plaintiffs' claims pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure. Plaintiffs sought review in the Court of Appeals.

A divided Court of Appeals reversed the trial court's order granting defendant's motion to dismiss. Stein v. Asheville City Bd. of Educ., 168 N.C.App. 243, 608 S.E.2d 80 (2005). The majority determined plaintiffs stated a claim for negligence by sufficiently alleging: (1) defendant had a legal duty to protect others from J.B. and C.N.; (2) defendant breached its duty when Patton and Guzman did not report the conversations as required by N.C.G.S. § 115C-245; and (3) defendant's breach proximately caused the injuries to Stein. Id. at 252-56, 608 S.E.2d at 86-89. The dissent maintained plaintiffs failed to allege a duty of care because their allegations conclusively show defendant lacked "any ability or right to control [J.B. and C.N. at the time] plaintiffs were injured." Id. at 260, 608 S.E.2d at 91 (Tyson, J., concurring in part and dissenting in part). Noting the conversations were "not specific to any time, place, or intended victim," the dissent also argued the majority's holding would impermissibly render defendant "liable to any victim, at any time or place, whom [J.B. and C.N.] might eventually `rob' or `kill.'" Id. at 262, 608 S.E.2d at 92.

Defendant filed a notice of appeal to this Court. As this is an appeal of right based solely on the dissent in the Court of Appeals, our review is limited to the legal sufficiency of plaintiffs' allegations against defendant. N.C. R.App. P. 16(b).


When reviewing a complaint dismissed under Rule 12(b)(6), we treat a plaintiff's factual allegations as true. Wood v. Guilford Cty., 355 N.C. 161, 166, 558 S.E.2d 490, 494 (2002). Taken as true, plaintiffs' allegations cause concern. Our society remains in the shadow of the Columbine High School massacre and subsequent school shootings. The educators, staff members, and volunteers who accept the challenge of working with behaviorally and emotionally handicapped juveniles undoubtedly deserve praise; nonetheless, public school personnel who overhear students discussing robbery or homicide have a moral and civic obligation to respond appropriately. The power of the judiciary does not extend to purely moral or civic shortcomings, however. Absent legal grounds for visiting civil liability on defendant, our courts cannot offer plaintiffs the requested remedy.

In their amended complaint, plaintiffs assert statutory and common law imposed a legal duty on defendant to forestall the shooting of Stein. See generally Estate of Mullis v. Monroe Oil Co., 349 N.C. 196, 204, 505 S.E.2d 131, 136 (1998) (defining a legal duty as "`"an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward another"'"). Plaintiffs submit defendant's breach of this duty exposed defendant to civil liability under two theories: (1) negligence per se for a violation of N.C.G.S. § 115C-245 (detailing the responsibilities of public school bus drivers and monitors), and (2) common law negligence. See id. at 200, 505 S.E.2d at 134. We consider the legal sufficiency of each cause of action in turn.


"[T]he general rule in North Carolina is that the violation of a [public safety statute] constitutes negligence per se." Byers v. Standard Concrete Prods. Co., 268 N.C. 518, 521, 151 S.E.2d 38, 40 (1966). A public safety statute is one "impos[ing] upon [the defendant] a specific duty for the protection of others." Lutz Indus., Inc. v. Dixie Home Stores, 242 N.C. 332, 341, 88 S.E.2d 333, 339 (1955). Significantly, even when a defendant violates a public safety statute, the plaintiff is not entitled to damages unless the plaintiff belongs to "the class [of persons] intended to be protected by [the] statute," Baldwin v. GTE S., Inc., 335 N.C. 544, 546, 439 S.E.2d 108, 109 (1994), and the statutory violation is "a proximate cause of [the plaintiff's] injury," Hart v. Ivey, 332 N.C. 299, 303, 420 S.E.2d 174, 177 (1992).

In the case sub judice, plaintiffs allege N.C.G.S. § 115C-245 obligated Patton and Guzman to report the conversations at issue to school officials. Plaintiffs contend that, had Patton or Guzman performed her statutory duty, the attack on Stein could have been thwarted. Plaintiffs further allege the acts and omissions of Patton and Guzman should be imputed to defendant. Although the Court of Appeals majority cited defendant's purported violation of N.C.G.S. § 115C-245 as an adequate allegation of breach when discussing plaintiffs' common law negligence claim, it did not directly address whether plaintiffs have successfully stated a claim for negligence per se.

Section 115C-245 of our General Statutes reads in pertinent part:

(b) The driver of a school bus ... shall have complete authority over and responsibility for the operation of the bus and the maintaining of good order and conduct upon such bus, and shall...

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