Webb ex rel. Bumgarner v. Nicholson

• Decision Date: 05 July 2006
• Docket Number: No. COA05-961.,COA05-961.
• Citation: 634 S.E.2d 545
• Court: North Carolina Court of Appeals
• Parties: Michael Scott WEBB, by and through his Guardian Ad Litem, Randy BUMGARNER, and Jayne Maney, Plaintiffs, v. Kenneth NICHOLSON, in his individual capacity, and Jackson County Board of Education, Defendants.

Page 545

634 S.E.2d 545

Michael Scott WEBB, by and through his Guardian Ad Litem, Randy BUMGARNER, and Jayne Maney, Plaintiffs, v. Kenneth NICHOLSON, in his individual capacity, and Jackson County Board of Education, Defendants.

No. COA05-961.

Court of Appeals of North Carolina.

July 5, 2006.

Appeal by plaintiffs from order entered 7 March 2005 by Judge Ronald K. Payne in the Superior Court in Jackson County. Heard in the Court of Appeals 22 February 2006.

Cloninger, Lindsay, Hensley & Searson, P.L.L.C., by John C. Hensley, Jr., Asheville, for plaintiffs-appellants.

Cranfill, Sumner, & Hartzog, L.L.P., by Ann S. Estridge and Meredith T. Black, Raleigh, for defendant-appellee Kenneth Nicholson.

Tharrington Smith, L.L.P., by Deborah R. Stagner, Raleigh, and Allison B. Schafer, General Counsel, for North Carolina School Boards Association, amicus curiae.

HUDSON, Judge.

On 29 July 2004, plaintiffs Michael Scott Webb ("Webb") and Jayne Maney filed a complaint against defendants Kenneth Nicholson ("Nicholson"), individually, and the Jackson County Board of Education ("the Board"). On 28 September 2004, Nicholson moved to dismiss the claims against him, which motion the court denied. In his answer and amended answer, Nicholson asserted defenses of public official and sovereign immunity. On 5 January 2005, Nicholson moved to dismiss the complaint and for judgment on the pleadings pursuant to Rule 12(c). By order of 1 March 2005, the court granted the motion for judgment on the pleadings and dismissed the claims against Nicholson. Plaintiffs appeal. As discussed below, we affirm.

On 7 September 2001, the Yearbook Club of Smoky Mountain High School sponsored a dance in the school cafeteria in order to raise money to publish the yearbook. Defendant Nicholson, principal of the high school, attended the dance to provide supervision. Plaintiff Webb testified that he attended the dance with his brother, and that his brother entered the dance after paying for his own ticket, but without paying for Webb. When Webb was denied entry, he went to a cafeteria window and leaned inside, allegedly in order to attract his brother's attention. The assistant principal saw Webb and told him to get back outside. Nicholson pulled Webb back out through the window, and pushed him up against the exterior wall. Webb alleged that Nicholson and the Board negligently caused him injury. Webb suffered from osteonecrosis, a medical condition which had required several prior hip surgeries, and which left his hip in need of protection. Following the incident with Nicholson at the school dance, Webb required additional medical treatment including surgeries.

The court did not dismiss plaintiffs' claims against the Board in the order granting a dismissal to Nicholson. "[A]n appeal of an order denying [a] motion for judgment on the pleadings is an interlocutory appeal." Paquette v. County of Durham, 155 N.C.App. 415, 418, 573 S.E.2d 715, 717 (2002), disc. review denied, 357 N.C. 165, 580 S.E.2d 695 (2003). However, an interlocutory order raising issues of sovereign immunity affects a substantial right and warrants immediate appellate review. Id. Having concluded that this interlocutory appeal is properly before us, we turn to the substantive argument raised by plaintiffs.

Plaintiffs argue that the trial court erred in granting judgment on the pleadings pursuant to Rule 12(c) to Nicholson. We do not agree.

Rule 12 provides that:

(c) Motion for judgment on the pleadings. —After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings. If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.

N.C. Gen.Stat. § 1A-1, Rule 12(c) (2005).

Motions for judgment on the pleadings pursuant to Rule 12(c) are designed to `dispose of baseless claims or defenses when the formal pleadings reveal their lack of merit.' Ragsdale v. Kennedy, 286 N.C. 130, 137, 209 S.E.2d 494, 499 (1974). The movant bears the burden of proving that, after viewing the facts and permissible inferences in the light most favorable to the non-movant, he or she is entitled to judgment as a matter of law. DeTorre v. Shell Oil Co., 84 N.C.App. 501, 504, 353 S.E.2d 269, 271 (1987).

Vereen v. Holden, 121 N.C.App. 779, 782, 468 S.E.2d 471, 473 (1996), reh'ing granted, 345 N.C. 646, 483 S.E.2d 719, adhered to, 127 N.C.App. 205, 487 S.E.2d 822 (1997). We review such a grant by determining "whether the moving party has shown that no material issue of fact exists upon the pleadings and that he is clearly entitled to judgment." Affordable Care, Inc. v. N.C. State Bd. of Dental Exam'rs, 153 N.C.App. 527, 532, 571 S.E.2d 52, 57 (2002). "All factual allegations in the nonmovant's pleadings are deemed admitted except those that are legally impossible or not admissible in evidence." Id. Nicholson asserted the defense of public official immunity, arising from his position as principal of Smoky Mountain High School. Plaintiffs contend that the trial court erred in its grant of judgment on the pleadings because the pleadings did not show that Nicholson's supervision of the school dance was a governmental function nor was it evident that Nicholson was acting as a public official rather than a public employee during the incident. This argument is not persuasive.

Under the doctrine of public official immunity, `when a governmental worker is sued individually, or in his or her personal capacity, our courts distinguish between public employees and public officials in determining negligence liability.' Hare v. Butler, 99 N.C.App. 693, 699-700, 394 S.E.2d 231, 236 (1990) (citations omitted). `Officers exercise a certain amount of discretion, while employees perform ministerial duties.' Cherry v. Harris, 110 N.C.App. 478, 480, 429 S.E.2d 771, 773 (1993) (citation omitted). `Discretionary acts are those requiring personal deliberation, decision[,] and judgment. . . . Ministerial duties, on the other hand, are absolute and involve merely the execution of a specific duty arising from fixed and designated facts.' Isenhour v. Hutto, 350 N.C. 601, 610, 517 S.E.2d 121, 127 (1999) (citations and quotations omitted). Additionally, `to constitute an office, as distinguished from employment, it is essential that the position must have been created by the constitution or statutes of the sovereignty, or that the sovereign power shall have delegated to an inferior body the right to create the position in question.' State v. Hord, 264 N.C. 149, 155, 141 S.E.2d 241, 245 (1965).

Under these guidelines, this Court has recognized that school officials such as superintendents and principals perform discretionary acts requiring personal deliberation, decision, and judgment. Gunter v. Anders, 114 N.C.App. 61, 67-68, 441 S.E.2d 167, 171 (1994).

Farrell v. Transylvania County Bd. of Educ., ___ N.C.App. ___, ___, 625 S.E.2d 128, 133 (2006). Local school boards are designated by statute as having the responsibility for supervision and oversight of extracurricular activities, such a school dance to raise yearbook funds:

(4) To Regulate Extracurricular Activities. —Local boards of education shall make all rules and regulations necessary for the conducting of extracurricular activities in...