IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA24-603
Filed 2 July 2025
Mecklenburg County, No. 21 CVS 007227-590
JON AND ALICIA BRADY, individually and as the Natural Parents and Legal Guardians of V.B., a minor, Plaintiffs,
v.
CHARLOTTE-MECKLENBURG BOARD OF EDUCATION, PLAYSPANISH, LLC, RICARDO L. MATA, PEGGY H. HEY, in her individual capacity, PHILLIP GOODMAN, in his individual capacity, and CYNTHIA MARRERO, in her individual capacity, Defendants.
Appeal by Defendants from order entered 2 April 2024 by Judge Karen Eady-
Williams in Mecklenburg County Superior Court. Heard in the Court of Appeals 27
February 2025.
Wallace Law Firm PLLC, by Terry L. Wallace, for Defendants-Appellants Charlotte-Mecklenburg Board of Education, Peggy H. Hey, Phillip Goodman, and Cynthia Marrero.
Susan L. Sowell for Defendant-Appellant Phillip Goodman.
No brief filed for Defendant PlaySpanish, LLC.
James, McElroy, & Diehl, P.A., by Preston O. Odom, III, J. Alexander Heroy, and Jennifer M. Houti, for Plaintiffs-Appellees.
GRIFFIN, Judge.
Defendant Charlotte-Mecklenburg Board of Education (“Defendant CMS”) and
Defendants Peggy Hey, Phillip Goodman, and Cynthia Marrero appeal from the trial BRADY V. CHARLOTTE-MECKLENBURG BD. OF EDUC.
Opinion of the Court
court’s order denying their motion to dismiss. Defendants claim they are immune
from suit under the doctrines of governmental immunity and public official immunity.
We hold they are not entitled to either defense and affirm the trial court’s order.
I. Factual and Procedural Background
Because this appeal comes to us from the denial of a motion to dismiss based
on Rules 12(b)(1), 12(b)(2), and 12(b)(6) of the North Carolina Rules of Civil
Procedure, the following facts are taken from Plaintiffs’ amended complaint and
treated as true. Est. of Long by and through Long v. Fowler, 378 N.C. 138, 140–41,
861 S.E.2d 686, 690 (2021).
Defendant PlaySpanish is a limited liability company that has provided after-
school language programming to students in Mecklenburg County since 1997.
Defendant PlaySpanish ostensibly used public school facilities to conduct its business
through the Charlotte-Mecklenburg Community Use in Schools program (“CUS”);
however, Defendant CMS did not adhere to the CUS regulations and policies
governing the program when providing Defendant PlaySpanish access to its facilities.
CUS allows community organizations not affiliated with Defendant CMS to use its
facilities for various civic purposes. Defendants Marrero, Goodman, and Hey were
Defendant CMS’s manager of CUS, Director of Property Management within the
Facility Planning and Management section of the Operations Department, and
Executive Director of the Facility Planning, respectively. All served in their
respective positions during at least 2016, 2017, and 2018.
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Defendant Ricardo Mata and his wife are the sole owners and proprietors of
Defendant PlaySpanish. In October 2013, Defendant CMS received a report of
Defendant Mata sexually assaulting a child at an elementary school while he was
operating Defendant PlaySpanish. Defendant CMS requested its police division
conduct a criminal background check on Defendant Mata, which showed Defendant
Mata had been accused of multiple other assaults on both children and adult women
between 1993 and 2009. The background check also revealed Defendant Mata had
previously been extradited to Georgia because of an investigation for allegedly
sexually assaulting a child there.
Following the allegation in October 2013, Defendant Mata met with Defendant
CMS’s superintendent and denied the allegations via email. Defendant CMS then
closed its investigation of Defendant Mata and failed to inform its principals and
students’ parents about the results of their investigation and background check.
During the 2016–2017 and 2017–2018 school years, Plaintiffs enrolled their
daughter in Defendant PlaySpanish while she was a kindergarten and first grade
student. Defendant Mata sexually assaulted her numerous times during “lock-down
drills,” which he was not authorized to perform.
On 4 May 2021, Plaintiffs filed a complaint against Defendant PlaySpanish,
Defendant Mata, Defendant CMS, and Defendants Hey, Goodman, and Marrero
bringing numerous claims stemming from the assault on their daughter. On 29 July
2021, Plaintiffs amended their complaint. In part, Plaintiffs alleged Defendant CMS
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and Defendants Hey, Goodman, and Marrero were liable for intentional or reckless
infliction of emotional distress, negligent infliction of emotional distress, and
negligence or gross negligence.1 Plaintiffs also brought a claim against Defendant
CMS for premises liability and, in the alternative, under Article I, section 19 the
North Carolina State Constitution.
Defendant CMS and Defendants Hey, Goodman, and Marrero moved to
dismiss Plaintiffs’ amended complaint on 8 September 2021 pursuant to Rules
12(b)(1), (2), and (6), claiming Defendant CMS is entitled to governmental immunity
and Defendants Hey, Goodman, and Marrero are entitled to public official immunity.
Defendants attached affidavits and evidentiary exhibits in support of their motion.
Plaintiffs filed a memorandum of law opposing Defendants’ motion and also
submitted an affidavit and exhibits to the trial court.
On 23 June 2022, Defendants’ motion came on for hearing in Mecklenburg
County Superior Court. The trial court did not receive evidence during the hearing.
On 2 April 2024, the trial court dismissed Plaintiffs’ constitutional claim but denied
Defendants’ motion as to all other claims. Specifically, the trial court concluded
Plaintiffs’ allegations were sufficient to survive Defendants’ motion to dismiss, and
1 As this appeal only addresses Defendant CMS and Defendants Hey, Goodman, and
Marrero’s motion to dismiss, we do not list or discuss the remaining claims against Defendant PlaySpanish and Defendant Mata.
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the issue of whether Defendants were entitled to the respective immunities they
claimed required further factual development.
Defendants timely appeal.
II. Analysis
Defendants contend the trial court erred by denying their motion to dismiss on
Plaintiffs’ remaining claims. Specifically, Defendant CMS argues it is entitled to
governmental immunity because it was engaged in a governmental function when
allowing Defendant PlaySpanish to use its facilities and did not purchase liability
insurance waiving immunity. Taking the facts alleged in the amended complaint as
true, we hold Defendant CMS was engaged in a propriety function, thereby waiving
governmental immunity. Therefore, we do not reach the question of whether the
insurance policies at issue also had the same effect.
Defendants Hey, Goodman, and Marrero argue they enjoy public official
immunity and are therefore also immune from liability. We similarly hold that
Defendants Hey, Goodman, and Marrero were not acting as public officials and are
therefore not entitled to its protections.
A. Jurisdiction
Defendants moved to dismiss Plaintiffs’ claims under Rules 12(b)(1), (2), and
(6) of the North Carolina Rules of Civil Procedure. Generally, a trial court’s decision
to deny a Rule 12 motion to dismiss is interlocutory and not immediately appealable.
Can Am S., LLC v. State, 234 N.C. App. 119, 122, 759 S.E.2d 304, 307 (2014) (citing
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Reid v. Cole, 187 N.C. App. 261, 263, 652 S.E.2d 718, 719 (2007)). However, an
immediate right of appeal exists where the order affects a substantial right or is an
adverse ruling on personal jurisdiction. Can Am S., 234 N.C. App. at 122, 759 S.E.2d
at 307.
Being so, an order denying a motion to dismiss made pursuant to Rule 12(b)(6)
because of governmental immunity is immediately appealable as it affects a
substantial right; governmental immunity “is an immunity from suit rather than a
mere defense to liability; and . . . it is effectively lost if a case is erroneously permitted
to go to trial.” Craig ex rel. Craig v. New Hanover Cnty. Bd. of Educ., 363 N.C. 334,
337–38, 678 S.E.2d 351, 354 (2009); see also State ex rel. Stein v. Kinston Charter
Acad., 379 N.C. 560, 571, 866 S.E.2d 647, 655 (2021) (“[A] municipal corporation may
assert governmental immunity[] as a complete defense to a civil lawsuit at the
pleading stage.”); Can Am, 234 N.C. at 122, 759 S.E.2d at 307 (“Had defendants
moved to dismiss based on the defense of sovereign immunity pursuant to Rule
12(b)(6), we would be bound by the longstanding rule that the denial of such a motion
affects a substantial right and is immediately appealable under section 1-277(a).”
(citations omitted)).
Similar to a Rule 12(b)(6) dismissal based on sovereign immunity, we have
consistently held “denial of a Rule 12(b)(2) motion premised on sovereign immunity
constitutes an adverse ruling on personal jurisdiction and is therefore immediately
appealable under section 1-277(b).” Green v. Howell, 274 N.C. App. 158, 164, 851
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S.E.2d 673, 678 (2020) (citation and internal marks omitted); see also Torres v. City
of Raleigh, 288 N.C. App. 617, 620, 887 S.E.2d 429, 433 (2023) (“This Court has
consistently stated that a denial of governmental immunity should be classified as an
issue of personal jurisdiction under Rule 12(b)(2).”); Can Am, 234 N.C. App. at 123–
24, 759 S.E.2d at 308 (“[T]his Court has consistently held that: (1) the defense of
sovereign immunity presents a question of personal, not subject matter, jurisdiction,
and (2) denial of Rule 12(b)(2) motions premised on sovereign immunity are sufficient
to trigger immediate appeal under section 1-277(b).”).
Like governmental and sovereign immunity, public official immunity “is more
than a mere affirmative defense to liability—it shields a defendant entirely from
having to answer for its conduct in a civil suit for damages.” Est. of Graham v.
Lambert, 385 N.C. 644, 651, 898 S.E.2d 888, 895 (2024) (citations omitted). Because
public official immunity provides a defendant a complete shield, a trial court’s ruling
denying a Rule 12(b)(6) motion to dismiss based upon public official immunity is also
immediately appealable as affecting a substantial right because “‘it is effectively lost
if a case is erroneously permitted to go to trial.’” Craig, 363 N.C. at 337–38, 678
S.E.2d at 354 (quoting Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S. Ct. 2806, 86 L.
Ed. 2d 411, 425 (1985)); see also Bartley v. City of High Point, 381 N.C. 287, 293, 873
S.E.2d 525, 532 (2022) (“The denial of summary judgment on the ground of public
official immunity is immediately appealable because it affects a substantial right.”).
We will not, however, review whether the trial court properly denied
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Defendants’ motion on the basis of Rule 12(b)(1) as “that motion does not support an
interlocutory appeal.” Murray v. Univ. of N.C. at Chapel Hill, 246 N.C. App. 86, 93,
782 S.E.2d 531, 536 (2016) (citation omitted); Green v. Kearney, 203 N.C. App. 260,
265–66, 690 S.E.2d 755, 760 (2010) (“Nevertheless, this Court has declined to address
interlocutory appeals of a lower court’s denial of a Rule 12(b)(1) motion to dismiss
despite the movant’s reliance upon the doctrine of sovereign immunity.”).
In sum, the issues of whether the trial court properly denied Defendants’
motion to dismiss because of governmental immunity and public official immunity
are properly before this Court as an adverse ruling on personal jurisdiction and as
affecting a substantial right.
B. Defendant CMS
Defendant CMS contends the trial court erred by denying its motion to dismiss
because it is protected by governmental immunity from lawsuits alleging tortious or
negligent conduct. Plaintiffs argue Defendant CMS does not benefit from the
protections provided by governmental immunity for two reasons: (1) Defendant CMS
was engaging in a proprietary function when it allowed Defendant PlaySpanish to
use its facilities; and (2) Defendant CMS waived governmental immunity by
purchasing insurance which covers Plaintiffs’ claims. Either ground provides an
adequate basis for affirming the trial court’s order because Defendant CMS is subject
to the court’s personal jurisdiction if not protected by governmental immunity. We
agree with Plaintiffs that Defendant CMS was engaged in a proprietary function
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when allowing Defendant PlaySpanish on school property and therefore do not reach
the issue of whether Defendant CMS waived governmental immunity through
purchasing insurance.
“This Court has consistently stated that a denial of governmental immunity
should be classified as an issue of personal jurisdiction under Rule 12(b)(2).” Torres,
288 N.C. App. at 620, 887 S.E.2d at 433 (2023). “The standard of review to be applied
by a trial court in deciding a motion under Rule 12(b)(2) depends upon the procedural
context confronting the court.” Banc of Am. Sec. LLC v. Evergreen Int’l Aviation, Inc.,
169 N.C. App. 690, 693, 611 S.E.2d 179, 182 (2005). Three postures are typical: “(1)
the defendant makes a motion to dismiss without submitting any opposing evidence;
(2) the defendant supports its motion to dismiss with affidavits, but the plaintiff does
not file any opposing evidence; or (3) both the defendant and the plaintiff submit
affidavits addressing the personal jurisdiction issues.” Id; Torres, 288 N.C. App. at
620–21, 887 S.E.2d at 433 (stating the same).
In the third posture, such as here, “the court may hear the matter on affidavits
presented by the respective parties, or the court may direct that the matter be heard
wholly or partly on oral testimony or depositions.” Banc of Am. Sec., 169 N.C. App.
at 694, 611 S.E.2d at 183 (citation modified). Because the trial court here did not
receive evidence at the hearing but decided the motion based upon the pleadings and
affidavits alone, it acted much like a juror by “‘determin[ing] the weight and
sufficiency of the evidence[.]’” Id. (quoting Fungaroli v. Fungaroli, 51 N.C. App. 363,
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367, 276 S.E.2d 521, 524 (1981)). Our review in this context is to determine “only
‘whether the findings of fact by the trial court are supported by competent evidence
in the record; if so, this Court must affirm the order of the trial court.’” Banc of Am.
Sec., 169 N.C. App. at 694, 611 S.E.2d at 183 (quoting Replacements, Ltd. v.
MidweSterling, 133 N.C. App. 139, 140–41, 515 S.E.2d 46, 48 (1999)). But, a trial
court “is not required to make specific findings of fact unless a party so requests.”
McCullers v. Lewis, 265 N.C. App. 216, 220, 828 S.E.2d 524, 530–31 (2019) (citations
omitted). When the record does not indicate a party requested “the trial court make
specific findings of fact, and the order appealed from contains no findings, we
presume that the trial court made factual findings sufficient to support its ruling[,]”
and we determine from a review of the record whether there is evidence “that would
support the trial court’s legal conclusions[,]” which are reviewed de novo. Id.
(citations omitted).
Here, the trial court’s order did not contain findings of fact, nor did either party
request them, so we “presume that the trial court found facts sufficient to support its
ruling, if such findings may be made from the record evidence.” Torres, 288 N.C. App.
at 622–23, 887 S.E.2d at 434 (citing Cameron-Brown Co. v. Daves, 83 N.C. App. 281,
285, 350 S.E.2d 111, 114 (1986)). In sum, we review the record to determine whether
there was adequate evidence to support the trial court’s conclusions of law, which we
then review de novo. Id.
Sovereign immunity is a common law doctrine which “bars suits against the
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State ‘unless it has consented or waived its immunity.’” Graham, 385 N.C. at 651,
898 S.E.2d at 895 (quoting Kinston Charter Acad., 379 N.C. at 570, 866 S.E.2d at 655
(internal marks omitted)). Constituent units of the State—cities, counties, and other
localities such as school boards—are protected by governmental immunity, a “slice”
of sovereign immunity which “shields units of local government from suit for acts
committed in their governmental capacity.” Graham, 385 N.C. at 651, 898 S.E.2d at
895–96 (quoting Providence Volunteer Fire Dep’t, Inc. v. Town of Weddington, 382
N.C. 199, 211–12, 876 S.E.2d 453 (2022) (internal marks omitted) (emphasis added));
see also Willet v. Chatham Cnty. Bd. of Educ., 176 N.C. App. 268, 269, 625 S.E.2d
900, 901 (“School boards enjoy the right of governmental immunity absent waiver or
a statute to the contrary.”); Hallman v. Charlotte-Mecklenburg Bd. of Educ., 124 N.C.
App. 435, 437, 477 S.E.2d 179, 180 (1996) (“A local board of education is immune from
suit and may not be liable in a tort action unless the Board has duly waived its
governmental immunity.”).
Two ways a school board may waive governmental immunity are by purchasing
liability insurance, N.C. Gen. Stat. § 115C-42 (2023), or when engaging in a
proprietary¸ as opposed to governmental, function, Kinston Charter Acad., 379 N.C.
at 571, 866 S.E.2d at 655; see also Willett, 176 N.C. App. at 270, 625 S.E.2d at 902
(“Governmental immunity shields a state entity in the performance of governmental
functions, but not proprietary functions.” (citing Hickman v. Fuqua, 108 N.C. App.
80, 82–83, 422 S.E.2d 449, 451 (1992)).
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Our Supreme Court has explained the difference between governmental and
proprietary acts undertaken by localities as one in which the locality’s motivation,
and characteristics of the acts, are determinative:
[a]ny activity of a municipality which is discretionary, political, legislative, or public in nature and performed for the public good in behalf of the State rather than for itself comes within the class of governmental functions. When, however, the activity is commercial or chiefly for the private advantage of the compact community, it is private or proprietary.
Bynum v. Wilson Cnty., 367 N.C. 355, 358, 758 S.E.2d 643, 646 (2014) (quoting Britt
v. City of Wilmington, 236 N.C. 446, 450, 73 S.E.2d 289, 293 (1952)). Stated
differently, the protections of governmental immunity end where a unit of local
government “‘undertakes functions beyond its governmental and police powers and
engages in business in order to render a public service for the benefit of the
community for a profit, it [then] becomes subject to liability for contract and in tort
as in [the] case of private corporations.’” Providence, 382 N.C. at 212, 876 S.E.2d at
462 (quoting Kinston Charter Acad., 379 N.C. at 571, 866 S.E.2d at 655).
Our Supreme Court has “adopted a three-step method of analysis for use in
determining whether a [local unit of government’s] action was governmental or
proprietary in nature.” Providence 382 N.C. at 212–13, 876 S.E.2d at 462 (citing Est.
of Williams ex rel. Overton v. Pasoquotank Cnty. Parks & Recreation Dept., 366 N.C.
195, 200, 732 S.E.2d 137, 141 (2014)). The first step, and threshold inquiry, requires
us to consider “whether, and to what degree, the legislature has addressed the issue.”
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Williams, 366 N.C. at 200, 732 S.E.2d at 141–42.
If the legislature has not designated a function as governmental, we then
ascertain whether the act is one that “can only be provided by a governmental agency
or instrumentality[,]” because, if it is, then the act is necessarily a governmental
function. Bynum, 367 N.C. at 358–59, 758 S.E.2d at 646. This factor “has limitations
in our changing world [because] many services once thought to be the sole purview of
the public sector have been privatized in full or in part. Consequently, it is
increasingly difficult to identify services that can only be rendered by a governmental
entity.” Providence, 382 N.C. at 213, 876 S.E.2d at 462 (quoting Williams, 366 N.C.
at 202–03, 732 S.E.2d at 137 (citation modified)).
In light of this increasingly difficult reality, if neither of the first two inquiries
is dispositive, we then look to “a number of additional factors, of which no single factor
is dispositive.” Williams, 366 N.C. at 202, 732 S.E.2d at 143. Those factors include
“whether the service is traditionally a service provided by a governmental entity,
whether a substantial fee is charged for the service provided, and whether the fee
does more than simply cover the operating costs of the service provider.” Id. at 202–
03, 732 S.E.2d at 143 (citation omitted). When analyzing these factors, we focus on
“the governmental act or service that was allegedly done in a negligent manner.”
Bynum, 367 N.C. at 359, 758 S.E.2d at 646 (citing Williams, 366 N.C. at 199, 732
S.E.2d at 141). Moreover, “the distinctions between proprietary and governmental
functions are fluid” and our Supreme Court has cautioned “against overreliance on”
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the factors. Providence, 382 N.C. at 213, 876 S.E.2d at 462–63 (quoting Williams,
366 N.C. at 202–03, 732 S.E.2d at 143)).
At bottom, this analysis “is a fact intensive inquiry, turning on the facts alleged
in the complaint, and may differ from case to case.” Williams, 366 N.C. at 203, 732
S.E.2d at 143.
Here, Defendant CMS contends the trial court erred by failing to address this
factor in its order dismissing their 12(b)(2) motion. Regardless, Defendant CMS
argues the first factor of Williams is dispositive because the Community Schools Act
authorized Defendant CMS to provide for-profit businesses use of school facilities and
therefore the General Assembly has designated that a governmental function.
Specifically, Defendant cites to Bynum v. Wilson County and Bellows v. Asheville City
Board of Education as analogs in favor of their argument.
In Bynum, the plaintiff sued Wilson County for various tort claims after he fell
down the steps of a building housing the county government’s offices. 367 N.C. at
359–60, 758 S.E.2d at 646. In determining whether maintenance of the building was
a proprietary or governmental function, our Supreme Court relied on section 153A-
169, which stated “[t]he board of commissioners shall supervise the maintenance,
repair, and use of all county property.” Id. at 360, 758 S.E.2d at 646–47. Specifically,
the Court held that because the General Assembly “specifically assigned to the county
government the responsibilities of locating, supervising, and maintaining” the
building where the plaintiff fell, and because the building housed the offices for the
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county’s “discretionary, legislative, and public functions[,]” which could only be
provided by the government, the General Assembly had designated maintenance of
the building as governmental. Id. at 360–61, 758 S.E.2d at 646–47.
In Bellows, the plaintiff and her husband brought claims against the Asheville
City Board of Education for negligence after the plaintiff fell out of her wheelchair
and sustained injuries while at Asheville High School. 243 N.C. App. 229, 230, 777
S.E.2d 522, 523 (2015). Relying on Bynum, we held sections 115C-40 and 115C-
521(c), which both directed that school boards shall maintain and repair their
property, indicated the “General Assembly’s assignment” of these responsibilities was
dispositive to the question of whether property maintenance was a governmental or
proprietary function. Id. at 232, 777 S.E.2d at 524.
Because the test for whether a function is governmental or proprietary
requires a fact-intensive inquiry, we do not find these cases persuasive here for the
reasons below. Additionally, it is a well settled principle of law “‘that where the
language of a statute is clear and unambiguous, there is no room for judicial
construction and [we] must construe the statute using its plain meaning.’” Kinston
Charter Acad., 379 N.C. at 572, 866 S.E.2d at 656 (quoting In re Est. of Lunsford, 359
N.C. 382, 391–92, 610 S.E.2d 366 (2005)).
Here, the Community Schools Use Act (“The Act”) encourages “greater
community involvement in the public schools and greater community use of public
school facilities” and requires school boards to “[d]evelop programs and plans for
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increased use of public school facilities based upon policies and guidelines adopted by
the State Board of Education.” N.C. Gen. Stat. §§ 115C-204; 207(2) (2023). The Act
also requires school boards to “[e]stablish rules governing the implementation of such
programs and plans in its public schools and submit these rules along with adopted
programs and plans to the State Board of Education for approval” by the same. N.C.
Gen. Stat. § 115C-207(3). Notably, the Act includes allowing use of school facilities
for programs “including tutoring[.]” N.C. Gen. Stat. § 115C-206(2) (2023).
Per record evidence, Defendant CMS, pursuant to this authority, adopted
regulations providing for “Commercial Group[s]” to use CMS facilities “to engage in
a profit-making enterprise[.]” The regulations also provided that non-profit
organizations would be preferred over for-profit organizations during the approval
process, and the fee chart required higher payments by for-profit groups as well.
Additionally, Defendant CMS discouraged the use of school facilities by for-profit
groups.
This being the statutory and subsequent regulatory context, we do not agree
the General Assembly has addressed whether a school board’s renting of school
properties to for-profit businesses is a governmental or proprietary function. The Act
is a broad grant of authority and empowers school boards to allow community
organizations within their schools. However, the Act is silent about the use of school
facilities by for-profit businesses. In contrast, in both Bynum and Bellows, the
statutory mandates relied upon directly addressed the function at issue: maintenance
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of government property. Moreover, we read the Act’s explicit authorization for “[t]he
use of public school facilities by governmental, charitable, or civic organizations” to
be consistent with Defendant CMS’s own policy of preferring non-profit organizations
to use school facilities over for-profit organizations. This weighs against
characterizing the use of school facilities by for-profit businesses as a governmental
function because that section seemingly promotes use by non-profit organizations.
The Act does indicate that it is a policy of the State “[t]o assure maximum use
of public school facilities by the citizens of each community in this State[,]” which is
indicative of it being a governmental function for a school board to allow all kinds of
outside organizations to use school facilities. See Williams, 366 N.C. at 200, 732
S.E.2d at 141 (holding the following emphasized statutory language, “providing of
safe and sanitary dwelling accommodations for persons of low income are public uses
and purposes for which public money may be spent and private property acquired” to
be a “significant statutory indication” of a government function) (citation modified)).
Additionally, the Act requires that local school boards “[d]evelop policies and/or
procedures for approving the use of volunteer organizations and for approving the use
of individual volunteers[;]” and “[d]evelop programs and plans for increased
community use of public school facilities based upon policies and guidelines adopted
by the State Board of Education[;]” and “[e]stablish rules governing the
implementation of such programs and plans in its public schools[.]” N.C. Gen. Stat.
§ 115C-207(1)–(3).
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But, based on the record developed to this point, it is unclear whether
Defendant Mata was acting in the capacity of a volunteer under this authorization.
Our standard of review directs us to presume the trial court found sufficient facts to
support the conclusion that he was, and therefore Defendant CMS was negligent in
allowing him access to its facilities and young children. Regardless, these statutes
seemingly provide for the general conduct at issue and are indicative of a
governmental function—allowing outside organizations to operate in public school
facilities—but even if “the legislature has designated a general activity to be ‘a
governmental function by statute, the question remains whether the specific activity
at issue, in this case and under these circumstances, is a governmental function.”
Meinck v. City of Gastonia, 371 N.C. 497, 513–14, 819 S.E.2d 353, 364 (2018) (quoting
Williams, 366 N.C. at 201, 732 S.E.2d at 142). But we reiterate, in contrast to Bynum
and Bellows, these mandates do not directly address or require school boards to
engage in the specific activity and function at issue: allowing for-profit businesses to
use its facilities for profit making activities.
Defendant CMS also directs us to section 115C-524 of the North Carolina
General Statutes in support of it’s contention that the General Assembly has resolved
the question of whether allowing for-profit groups to use school facilities is a
governmental or proprietary function. Section 115C-524, “Repair of school property;
use of buildings for other than school purposes[,]” allows local school boards to enter
into agreements “permitting non-school groups to use school real and personal
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property [] for other than school purposes so long as such use is consistent with the
proper preservation and care of the public school property.” N.C. Gen. Stat. § 115C-
524(c) (2023). The statute then goes on to say, and Defendant emphasizes, “[n]o
liability shall attach to any board of education or to any individual board member for
personal injury suffered by reason of the use of such school property pursuant to such
agreements.” Id.
We do not read that language to be a legislative insulation of liability from
injury suffered by all uses of school facilities. Rather, reading the statute in totality,
the plain language of the statute refers to injuries caused by use of property; not
injuries caused by a business proprietor conducting their business on the property.
See Henderson v. Charlotte-Mecklenburg Bd. of Educ., 253 N.C. App. 416, 421, 801
S.E.2d 145, 149 (2017) (holding the defendant maintained statutory immunity
pursuant to section 115C-524(c) where an individual fell down because of a property
defect while present on the property pursuant to an agreement made under the
statute).
Additionally, section 115C-524(c) provides for school boards to enter into
agreements with businesses, and thus represents a legislative intent to have an
executed contract on file prior to facility use. This cuts against Defendant CMS’s
argument in that Defendant CMS did not require an executed contract before
allowing Defendant PlaySpanish to use school facilities. Moreover, had the General
Assembly intended what Defendant CMS argues, it would have an included a section
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to such effect in the Act pursuant to which Defendant PlaySpanish operated under.
Instead, the Act seemingly contemplates lawsuits of this kind. Specifically, in the
section discussing the maintenance of volunteer records, meaning “[a]n individual
who provides services to a local board of education without expectation of
compensation and with the understanding that the local board of education is under
no obligation to continue accepting those services or to compensate the volunteer for
them[,]” the Act states volunteer records should be kept confidential except for
inspection by “[a] party to a lawsuit, by authority of a subpoena or proper court
order[.]” N.C. Gen. Stat. § 115C-209.1(e)(1), (a)(5) (2023). This language, in contrast
to that above, is indicative of the General Assembly’s intent that activities provided
under the Act would not benefit from governmental immunity.
So, the General Assembly “has not directly resolved whether” the activity here
is a governmental function and we proceed to the second factor of the analysis.
Williams, 366 N.C. at 202, 732 S.E.2d at 142.
The second factor requires determination of whether the activity “is
necessarily governmental in nature [because] it can only be provided by a
governmental agency or instrumentality.” Id. “[T]his principle has limitations”
because many services that were traditionally provided by the government have been
privatized and can now be offered by commercial businesses. Id. at 202, 732 S.E.2d
at 143. This being the case, if a “particular service can be performed both privately
and publicly, the inquiry involves consideration” of additional factors, none of which
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are dispositive. Id.
Defendant contends the activity here is governmental in nature because only
the government can make school property available for public use. We disagree with
this characterization and hold that, in this context, public school facilities are a subset
of government owned real property placed into the commercial market by Defendant
CMS allowing businesses to use them for profit making activities.
In Kiddie Korner, the owners and operators of day care centers in Charlotte
filed suit bringing numerous claims against the Charlotte-Mecklenburg School Board
after the school board adopted a proposal made by its superintendent for an after-
school program at Dilworth Elementary School. 55 N.C. App. 134, 135–36, 285 S.E.2d
110, 112 (1981). There, the school board established a committee comprised of “a
representative from the Dilworth staff, parents, and the Dilworth Ministerial
Association,” which then implemented the proposal and administered the program.
Id. at 136, 285 S.E.2d at 112. We did not address the issue of governmental immunity
but characterized the program “in terms of an educational service operated by a school
sponsored committee.” Id. at 137, 285 S.E.2d at 113 (emphasis added).
In Schmidt, we relied upon Kiddie Korner in adjudicating a dispute where the
plaintiffs’ minor son suffered a head injury while attending an “after-school
enrichment program operated and controlled by Charlotte-Mecklenburg Board of
Education at the Idlewild Elementary School.” 134 N.C. App. 248, 250, 517 S.E.2d
171, 173 (1999) (citation modified). Plaintiffs claimed the school board was negligent
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in its operation of the after-school program and waived governmental immunity, in
part, by engaging in a proprietary function. Id. at 250–51, 517 S.E.2d at 173. We
determined the program in Kiddie Korner was indistinguishable from the program
there and held the Idlewild program was “an undertaking traditionally provided by
the local governmental units . . . and correctly classified as a supplemental
educational experience.” Id. at 254, 517 S.E.2d at 175 (citation modified).
Unlike the programs offered in Kiddie Korner and Schmidt, here record
evidence shows the educational service was operated by a private, for-profit
corporation—not by the school board or a constituent committee. This distinction
necessarily leads us to the conclusion that this “particular service[, providing
facilities to a for-profit tutoring business,] can be performed both privately and
publicly.” Williams, 366 N.C. at 202, 732 S.E.2d at 143. Because of this, we proceed
to analyze the remaining factors of whether: (1) “the service is traditionally a service
provided by a governmental entity[;]” (2) “a substantial fee is charged for the service
provided[;]” and (3) “the fee does more than simply cover the operating costs of the
service provider.” Id. at 202–03, 732 S.E.2d at 143. But, we remain cognizant that
our Supreme Court has cautioned against overreliance on these factors because the
distinction “between proprietary and governmental functions [is] fluid” and we
remain “advertent to changes in practice.” Id. at 203, 732 S.E.2d at 143. Additionally,
our Supreme Court has emphasized the following two principles important here:
First, although an activity may be classified in general as
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a governmental function, liability in tort may exist as to certain of its phases; and conversely, although classified in general as proprietary, certain phases may be considered exempt from liability. Second, it does not follow that a particular activity will be denoted a governmental function even though previous cases have held the identical activity to be of such a public necessity that the expenditure of funds in connection with it was for a public purpose.
Id. (quoting Sides v. Cabarrus Mem’l Hosp., Inc., 287 N.C. 14, 21–22, 213 S.E.2d 297,
302 (1975)).
Here, providing educational opportunities has traditionally been a service
provided by local government entities. Schmidt, 134 N.C. App. at 250, 517 S.E.2d at
173. However, in compliance with our duty to heed changes in practice, we also
recognize Defendant CMS still allows use of its properties for programs similar to
those at issue in Schmidt and Kiddie Korner through its After-School Enrichment
Program. See Before and After School Programs, https://www.cmsk12.org/asep (last
visited 8 May 2025); see also Williams, 366 N.C. at 203, 732 S.E.2d at 143 (“First,
although an activity may be classified in general as a governmental function, liability
in tort may exist as to certain of its phases[.]” (citation omitted)). The record indicates
Defendant PlaySpanish did not operate pursuant to such. Because of this reality, the
characterization we made over twenty years ago in Kiddie Korner holds significantly
less, if any, weight here.
Moreover, record evidence received by the trial court indicates Defendant CMS
generally charged higher fees when allowing for-profit entities to use its facilities.
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Defendant CMS’s policies state that the reason it charges for-profit applicants higher
fees is to “avoid unfair competition with other commercial enterprises.” Thus, by its
own characterization, Defendant CMS’s activity here was in the commercial, not
governmental, sphere because it was providing a service which could compete with
other commercial enterprises. See Britt, 236 N.C. 446, 451, 73 S.E.2d at 293
(describing a proprietary function as one that “any corporation, individual, or group
of individuals could do”). As such, Defendant CMS essentially stepped into the shoes
of a landlord renting property to a company when it allowed Defendant PlaySpanish
to operate its business on school property.
While Defendant CMS, as the Plaintiffs allege and the record indicates, waived
fees in excess of $35,000 for Defendant PlaySpanish during multiple years that
Defendant PlaySpanish operated on their property, this was because Defendant CMS
violated its own policies. This fact, and the argument Defendant CMS makes upon
it, misses the forest for the trees. Specifically, emails from Defendant Marrero reflect
Defendant CMS allowed Defendant PlaySpanish and other organizations to operate
within its facilities without a contract for years and, after the Community Use of
Schools Committee discovered this discrepancy, waived fees for subsequent years
until changes in their policies were approved.
Essentially, Defendant PlaySpanish should not have been allowed to operate
in the facilities during those years without a contract had Defendant CMS adhered
to its own policies. Like a business that offers a refund to a customer after making
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an error, the fee waiver came about from Defendant CMS’s own erroneous conduct.
Moreover, Defendant CMS planned on requiring Defendant PlaySpanish to obtain
approval and begin paying the fees moving forward despite Defendant PlaySpanish
not costing the district any additional expense. See Evans v. Housing Authority of
City of Raleigh, 359 N.C. 50, 54, 602 S.E.2d 668, 671 (“A fee suggests that an activity
is proprietary, particularly if a profit results.” (citation modified)). Had Defendant
CMS abided by its own policies, Defendant PlaySpanish would have been paying fees
for years despite Defendant CMS incurring no expense, thus making a profit. In
consequence, we do not consider the absence of profit here to be of significance.
We do note, however, the fact that Defendant CMS was not motivated by
making a profit, even though it would have had it abided by its policies, favors
characterizing the activity as a governmental function. See Meinck, 371 N.C. at 515,
819 S.E.2d at 365 (acknowledging the City of Gastonia did not seek to make a profit
when analyzing this factor).
In totality, Defendant CMS would have charged Defendant PlaySpanish a
substantial fee in relation to its expense had it not strayed from its own policies.
Moreover, the contrast between the programs operating pursuant to the After-School
Enrichment Program, which fit squarely within the holdings of Schmidt and Kiddie
Korner, and the program here operating for a profit without an executed contract also
show this was not the kind of activity that has been traditionally provided by
government entities. We hold Defendant CMS, based upon the facts developed and
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evidence received upon Defendants’ 12(b) motions, was engaged in a proprietary
function when it allowed a for-profit tutoring company to use its facilities when
conducting its business.
In this context, the protections provided by governmental immunity do not
deprive the trial court of personal jurisdiction over Defendant CMS. See Providence,
382 N.C. at 231, 876 S.E.2d at 474 (“When a governmental entity exercises
proprietary functions without the requisite integrity, shielding it in immunity
produces a serious injustice.” (Barringer, J., concurring in part and dissenting in
part)). Accordingly, we affirm the trial court’s order denying Defendant CMS’s
12(b)(2) motion to dismiss. Because Defendant CMS waiving the protections of
governmental immunity through engaging in a proprietary function is sufficient to
uphold the trial court’s order on Defendants’ 12(b) motion, we do not reach the
question of whether governmental immunity was also waived through the purchasing
of insurance.
C. Defendants Hey, Goodman, and Marrero
Defendants Hey, Goodman, and Marrero contend the trial court erred by
failing to grant their motion to dismiss because they are public officials immune from
liability for acts of negligence. Plaintiffs argue Defendants Hey, Goodman, and
Marrero are merely public employees and therefore not entitled to immunity. We
agree with Plaintiffs and affirm the trial court’s order denying Defendant Hey,
Goodman, and Marrero’s 12(b)(6) motion to dismiss.
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We review a trial court’s decision on a Rule 12(b)(6) motion de novo to
determine “whether the allegations of the complaint, if treated as true, are sufficient
to state a claim upon which relief can be granted under some legal theory.” Kinston
Charter Acad., 379 N.C. at 572, 866 S.E.2d at 656 (citation and internal marks
omitted). “‘Rule 12(b)(6) generally precludes dismissal except in those instances
where the face of the complaint discloses some insurmountable bar to recovery.’” Id.
(quoting Newberne v. Dep’t of Crime Control & Pub. Safety, 359 N.C. 782, 784, 618
S.E.2d 201, 203–04 (2005)). Public official immunity is one such insurmountable bar
because “it shields a defendant entirely from having to answer for its conduct in a
civil suit for damages.” Est. of Graham, 385 N.C. at 651, 898 S.E.2d at 895 (citations
omitted). Pursuant to de novo review, we “consider the matter anew and freely
substitute our judgment for that of the trial court.” Matter of K.S., 380 N.C. 60, 64,
868 S.E.2d 1, 4 (2022) (citation modified).
Plaintiffs sued Defendants Goodman, Hey, and Marrero in their individual
capacity because the complaint names them in their individual capacity and
Plaintiffs are seeking a monetary remedy. See Fowler, 378 N.C. at 144–45, 861 S.E.2d
at 692 (explaining the implication of these two factors when determining whether a
person has been sued in their individual or official capacity). Being so, Defendants
Hey, Goodman, and Marrero do not enjoy the protection of governmental immunity.
Graham, 385 N.C. at 654, 898 S.E.2d at 897. But, defendants sued in their individual
capacity “are not left unshielded—they may assert ‘personal immunity defenses.’” Id.
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(quoting Moore v. City of Greensboro, 345 N.C. 356, 368, 481 S.E.2d 14, 14 (1997)).
Public official “immunity is one such personal defense.” Id. Public official
immunity is a judicially created doctrine which “shields public officials from personal
liability for claims arising from discretionary acts or acts constituting mere
negligence, by virtue of their office, and within the scope of their governmental
duties.” Bartley, 381 N.C. at 294, 873 S.E.2d at 533 (2022). This immunity is founded
upon two societal concerns: first, it allows for “fearless, vigorous, and effective
administration of government policies[,]” and second, it encourages competent
individuals to assume the responsibilities of public office without fear of incurring
liability for actions taken when executing those duties. Id. (citations and internal
marks omitted). This doctrine does not, however, “immunize conduct at odds with
the protections afforded by it and that underlie its utility.” Graham, 385 N.C. at 654,
898 S.E.2d at 897–98 (citation modified). To this end, public officials are not immune
from liability if their “action was (1) outside the scope of official authority, (2) done
with malice, or (3) corrupt.” Bartley, at 294, 873 S.E.2d at 533 (citation and internal
marks omitted). But, we presume a public official discharges their duties in good
faith. Id. at 295, 873 S.E.2d at 533 (citation omitted).
In contrast to public officials, public employees may be held liable for
negligence. Meyer v. Walls, 347 N.C. 97, 112, 489 S.E.2d 880, 887 (1997). Our State
recognizes three “basic distinctions between a public official and a public employee,
including: (1) a public office is a position created by the constitution or statutes; (2) a
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public official exercises a portion of the sovereign power; and (3) a public official
exercises discretion, while public employees perform ministerial duties.” Isenhour v.
Hutto, 350 N.C. 601, 610, 517 S.E.2d 121, 127 (1999).
“A position is considered created by statute when the officer’s position has a
clear statutory basis or the officer has been delegated a statutory duty by a person or
organization created by statute or the Constitution.” Baker v. Smith, 224 N.C. App.
423, 428, 737 S.E.2d 144, 148 (2012) (citation modified). “[W]here a statute expressly
creates the authority to delegate a duty, a person or organization who is delegated
and performs the duty on behalf of the person or organization in whom the statute
vest the authority to delegate passes the first Isenhour factor.” McCullers, 265 N.C.
App. at 223, 828 S.E.2d at 532 (citing Baker, 224 N.C. App. at 428–30, 737 S.E.2d at
148–49). But, the delegation must be of “some portion of the sovereign power to the
position holder.” Hwang v. Cairns, __ N.C. __, __ S.E.2d __, 2025 WL 1479020, *4
(2025).
Ministerial duties “are absolute and involve merely the execution of a specific
duty arising from fixed and designated facts[,]” while discretionary duties “are those
requiring personal deliberation, decision and judgment.” Isenhour, 350 N.C. at 610,
517 S.E.2d at 127 (citation modified). “Courts applying this framework have recently
held that a defendant seeking to establish public official immunity must demonstrate
that all three of the Isenhour factors are present.” McCullers, 265 N.C. App. at 222–
23, 828 S.E.2d at 532 (citing Leonard v. Bell, 254 N.C. App. 694, 705, 803 S.E.2d 445,
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453 (2017)).
Defendants Hey, Goodman, and Marrero contend they are entitled to public
official immunity because their positions have “a clear statutory basis.” They cite to
the Act in support of their argument that they are “Community Schools
Coordinators.”
The Act defines a “Community Schools Coordinator” as “an employee of a local
board of education whose responsibility it is to promote and direct maximum use of
the public schools and public school facilities as centers for community
development[,]” and states that local school boards “may provide for the . . .
employment of one or more [C]ommunity [S]chools [C]oordinators.” N.C. Gen. Stat.
§ 115C-205(2); 207 (2023). The Act also provides the duties of Community Schools
Coordinators:
Every local board of education may employ one or more [C]ommunity [S]chools [C]oordinators and shall establish the terms and conditions of their employment. Community [S]chools [C]oordinators shall be responsible for:
(1) Providing support to the [C]ommunity [S]chools [A]dvisory [C]ouncils and public school officials.
(2) Fostering cooperation between the local board of education and appropriate community agencies.
(3) Encouraging maximum use of community volunteers in the public schools.
(4) Performing any other duties as may be assigned by the local superintendent and the local board of education, consistent with the purposes of this Article.
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N.C. Gen. Stat. § 115C-209 (2023).
Here, whether Defendants Hey, Goodman, and Marrero were Community
Schools Coordinators as contemplated by the Act in their respective positions as
manager of Defendant CMS’s CUS program, Director of Property Management
within the Facility Planning and Management section of Defendant CMS’s
Operations Department, and Executive Director of the Facility Planning and
Management section of Defendant CMS’s Operations Department is unclear. See
McCullers, 265 N.C. App. at 223, 828 S.E.2d at 532 (“Defendants argue that their
positions are ‘created by’ [statute], but point to no language in our Constitution or
any statute expressly creating their positions.”). Their positions are not provided for
within the Act and the only references to their respective involvement with CUS are
the following allegations from Plaintiffs’ amended complaint:
31. From at least 2011 through 2017, [Defendant] Marrero was the manager of [Defendant] CMS’s CUS program. Upon information and belief, [Defendant] Marrero’s duties as an employee of CMS were to follow [Defendant] CMS policies, regulations, and procedures for the review and approval of applications from CUS participants, including [Defendant] PlaySpanish. [Defendant] Marrero did not have discretion to vary from those policies, regulations, and procedures.
32. Upon information and belief, in at least 2016, 2017, and 2018, [Defendant] Goodman was the Director of Property Management within the Facility Planning and Management section of [Defendant] CMS’s Operations Department, and [Defendant] Marrero’s direct boss. Upon further information and belief, [Defendant] Goodman provided oversight for the CUS program, but did not have
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discretion to vary from [Defendant] CMS’s policies, regulations, and procedures for the review and approval of applications from CUS participants.
33. Upon information and belief, in at least 2016, 2017, and 2018, [Defendant] Hey was the Executive Director of the Facility Planning and Management section of [Defendant] CMS’s Operations Department, and [Defendant] Goodman’s direct boss. Upon further information and belief, [Defendant] Hey was ultimately responsible for the CUS program, but did not have discretion to vary from [Defendant] CMS’s policies, regulations, and procedures for the review and approval of applications from CUS participants.
We cannot hold upon the record developed to this point that Defendants Hey,
Goodman, and Marrero are entitled to public official immunity solely because their
positions were created by statute. Even if their positions were created by statute, the
Act does not expressly provide for delegating power of the approval process to
Community Schools Coordinators. It does require school boards to develop policies
for approving organizations and volunteers, but then allows Community Schools
Advisory Councils—“a committee of citizens organized to advise community school
coordinators, administrators, and local boards of education in the involvement of
citizens in the educational process and in the use of public school facilities”— to assist
in the implementation of those procedures. N.C. Gen. Stat. § § 115C-205(1); -207–08
(2023). Community Schools Coordinators may provide support to Community Schools
Advisory Councils pursuant to section 115C-209(1), but it is unclear whether that
includes creating approval processes.
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Regardless, based on our reading, the Act delegates to school boards and
Community Schools Advisory Councils the power to develop and implement an
approval process for outside organizations; it does not “expressly create[] the
authority to delegate [the] duty” to Defendants Hey, Goodman, or Marrero as needed
to satisfy the first Isenhour factor. McCullers, 265 N.C. App. at 223, 828 S.E.2d at
532. Even if Defendants Hey, Goodman, and Marrero’s positions were created by
statute, or if they were entitled to exercise a portion of the sovereign power through
delegation, they have failed to show their duties are anything more than ministerial.
Plaintiffs adequately pled that Defendants Hey, Goodman, and Marrero are
not entitled “to vary from [Defendant] CMS’s policies, regulations, and procedures for
the review and approval of applications from CUS participants.” Defendants have
failed to rebut this through the evidence they provided. Specifically, Defendant
CMS’s regulations for the approval process provide that the Community Use
Assistant may deny an application for reasons such as: (1) being incomplete or
inaccurate; (2) failing to send an accompanying contract; (3) failing to provide a
certificate of insurance if needed; (4) prior violation of rules; (5) unavailability of the
requested facilities; or (6) the requested activity, in the opinion of school officials,
could cause damage to the facility. We consider these ministerial acts as they are
primarily binary decisions based upon the presence of a necessary condition. Thus,
we cannot say Defendants Goodman, Hey, and Marrero were required to exercise
their “personal deliberation, decision and judgment” in approving CUS applications.
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Isenhour, 350 N.C. at 610, 517 S.E.2d at 127.
Accordingly, because the record reflects that Defendants Hey, Goodman, and
Marrero are public employees and not public officers, they are not entitled to public
official immunity. Therefore, we hold the trial court properly denied their 12(b)(6)
motion to dismiss Plaintiffs’ amended complaint.
III. Conclusion
For the aforementioned reasons, we affirm the trial court’s order denying
Defendant CMS’s Rule 12(b)(2) motion to dismiss because of governmental immunity
and Defendants Hey, Goodman, and Marrero’s 12(b)(6) motion to dismiss because of
public official immunity.
AFFIRMED.
Judges STROUD and FLOOD concur.
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