Burns v. Union Cnty. Bd. of Educ.

• Court: Court of Appeals of North Carolina
• Decided: January 21, 2014
• Docket: 13-616
• Status: Unpublished

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA13-616 NORTH CAROLINA COURT OF APPEALS

Filed: 21 January 2014

JOHN T. BURNS, Administrator of the Estate of JONATHAN BEEGLE, Deceased, Plaintiff,

v. North Carolina Industrial Commission I.C. File No. TA-22902 UNION COUNTY BOARD OF EDUCATION, Defendant.

Appeal by plaintiff from order entered 8 February 2013 by

the North Carolina Industrial Commission. Heard in the Court of

Appeals 23 October 2013.

Tin, Fulton, Walker & Owen, PLLC, by Sam McGee, for plaintiff-appellant.

Attorney General Roy Cooper, by Assistant Attorney General Alesia Balshakova, for defendant-appellee.

HUNTER, Robert C., Judge.

Plaintiff John Burns appeals the order issued by the North

Carolina Industrial Commission dismissing with prejudice his

complaint for lack of jurisdiction pursuant to N.C. Gen. Stat. §

143-300.1. On appeal, plaintiff argues that the Industrial -2- Commission erred by granting defendant’s motion to dismiss.

After careful review, we agree and reverse the Industrial

Commission’s order and remand for hearing.

Background

On 23 April 2010, a few minutes before 6:50 a.m., Jonathan

Beegle (“decedent”), who was seven years old, was waiting for

the Union County school bus to pick him up for school. Decedent

was waiting on the east side of Medlin Road in Union County

about six to ten feet from the roadway. Medlin Road is a two-

lane highway with a speed limit of 55 miles per hour. At

approximately 6:50 a.m., the bus, driven by Henry Collins (“Mr.

Collins”), was travelling southbound on Medlin Road. Mr.

Collins, with the caution lights flashing, brought the school

bus to a stop on the west side of Medlin Road directly across

from where decedent was standing. As decedent began to cross

the street, a vehicle driven by a third party, Dwayne Thomas,

was traveling northbound towards the stopped school bus. Before

decedent could reach the bus, he was struck by Dwayne Thomas’s

vehicle. Decedent died later that day as a result of the trauma

suffered in the accident.

On 8 February 2012, plaintiff filed a Tort Claim Affidavit

pursuant to N.C. Gen. Stat. § 143–300.1 with the Industrial -3- Commission. In the section of the affidavit where a claimant is

required to briefly give a statement of the events that led to

the injury, the affidavit alleged that:

The Defendant Union County Board of Education is directly liable for the negligence of its employees in the designing of a bus route that required a 7 year old boy to cross a 55mph highway in pre-dawn hours in order to board a school bus; and in locating a bus stop in a place where there could only be improper and insufficient warning for oncoming vehicles approaching the bus stop; and in failing to properly train and/or supervise the bus driver Henry C. Collins. The UCBOE is vicariously liable for any negligence of Henry C. Collins. As a result of this negligence, 7 Year old Jonathan Beegle was struck by an oncoming van while trying to board his school bus, while crossing Medlin Road at approximately 6:50 A.M.

Plaintiff identified the negligent employees in his affidavit as

Ed Davis, Superintendent of UCBOE; Denise Patterson, Assistant

Superintendent of UCBOE; and other unknown employees responsible

for the safe transportation of students.

On 12 March 2012, defendant filed a motion to dismiss

pursuant to North Carolina Rules of Civil Procedure 12(b)(1),

12(b)(2), and 12(b)(6). Following a hearing, Deputy

Commissioner J. Brad Donovan entered an order dismissing

plaintiff’s claim due to lack of jurisdiction. Plaintiff then

appealed to the Full Commission. After a hearing in front of -4- the Full Commission on 8 February 2013, the Full Commission

entered an order, with one Commissioner dissenting, denying

plaintiff’s motion to amend his affidavit and dismissing

plaintiff’s complaint for lack of jurisdiction. Specifically,

while acknowledging that N.C. Gen. Stat. § 143-297 does not

require strict adherence to formal rules of pleading, the Full

Commission concluded it lacked jurisdiction for two primary

reasons. First, it found that N.C. Gen. Stat. § 143-300.1(a)

limits liability of a county school board to negligent acts by

certain employees: maintenance personnel, the school bus driver,

the transportation safety assistant, and the monitor of a public

school bus. Because plaintiff’s claim did not allege negligence

by any of these specific employees, the Industrial Commission

lacked jurisdiction. Second, the Full Commission concluded that

the affidavit contained no allegations of an unsafe operation of

the bus due to mechanical reasons or other defects, another

requirement for jurisdiction; instead, it was limited to

allegations of negligence by the school in the planning and

design of the bus routes.

Plaintiff timely appealed to this Court on 4 March 2013.

Argument

Plaintiff argues that the Industrial Commission erred by -5- granting defendant’s motion to dismiss for lack of jurisdiction

because the Industrial Commission was the proper forum to bring

the claim. We agree.

“Our review of a motion to dismiss under Rule 12(b)(1) of

the North Carolina Rules of Civil Procedure is de novo. Under a

de novo review, the [C]ourt considers the matter anew and freely

substitutes its own judgment for that of the [trial court].”

Peninsula Prop. Owners Ass’n v. Crescent Res., LLC, 171 N.C.

App. 89, 92, 614 S.E.2d 351, 353 (2005) (internal citations and

quotation marks omitted). “The standard of review of the trial

court’s decision to grant a motion to dismiss under Rule

12(b)(2) is whether the record contains evidence that would

support the court’s determination that the exercise of

jurisdiction over defendants would be inappropriate.” Stacy v.

Merrill, 191 N.C. App. 131, 134, 664 S.E.2d 565, 567 (2008).

This action is governed by N.C. Gen. Stat. § 143-300.1(a)

(2013) which states, in pertinent part, that the Industrial

Commission has jurisdiction to adjudicate tort claims against a

county board of education which:

arise as a result of any alleged mechanical defects or other defects which may affect the safe operation of a public school bus or school transportation service vehicle resulting from an alleged negligent act of maintenance personnel or as a result of any -6- alleged negligent act or omission of the driver, transportation safety assistant, or monitor of a public school bus or school transportation service vehicle[.]

Procedurally, pursuant to N.C. Gen. Stat. § 143–297 (2013), a

claimant filing an action under N.C. Gen. Stat. § 143-300.1 must

file an affidavit with the Industrial Commission which includes,

among other things, “the name of the State employee upon whose

alleged negligence the claim is based” and “[a] brief statement

of the facts and circumstances surrounding the injury and giving

rise to the claim.” “Adherence to formal rules of pleading is

not required but the claim [made pursuant to N.C. Gen. Stat. §

143-297] should state facts sufficient to identify the agent or

employee and a brief statement of the negligent act that caused

the injury.” Turner v. Gastonia City Bd. of Ed., 250 N.C. 456,

460, 109 S.E.2d 211, 214 (1959).

In the present case, plaintiff filed this claim with both

the Industrial Commission and in Superior Court. However,

“there cannot be concurrent jurisdiction: if a plaintiff’s claim

against a Board of Education falls within the scope of N.C. Gen.

Stat. § 143–300.1, then N. C. Gen. Stat. § 115C–42 excludes the

claim from the waiver of immunity.” Stacy, 191 N.C. App. at

135, 664 S.E.2d at 567-68. Thus, the issue is whether

plaintiff’s affidavit demonstrated that the Industrial -7- Commission had jurisdiction over plaintiff’s action pursuant to

N.C. Gen. Stat. § 143-300.1 .

In interpreting the scope of N.C. Gen. Stat. § 143-300.1,

this Court, in a dissent adopted per curiam by our Supreme

Court, see Newgent v. Buncombe Bd. Of Ed., 340 N.C. 100, 455

S.E.2d 157 (1995), held that the Legislature did not intend 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.” Newgent

v. Buncombe Bd. Of Ed., 114 N.C. App. 407, 409, 442 S.E.2d 158,

159 (1994). There, the plaintiff alleged that the school bus

driver failed to inform the decedent’s parents and the school

principal that she had seen the decedent cross the road by

himself prior to the accident and that the driver altered her

route in a way that increased the risk of danger to the

decedent. Id. at 410, 442 S.E.2d at 160. Similarly, in Stacy,

191 N.C. App. at 135-36, 664 S.E.2d at 568, this Court concluded

that a plaintiff’s affidavit alleged facts that fell within the

scope of N.C. Gen. Stat. § 143-300.1 by claiming that the driver

was driving too fast and should have stopped the bus when he saw -8- children riding bicycles on the road.

Here, while plaintiff’s affidavit does not contain the same

amount of detail regarding Mr. Collins’s alleged negligence, the

facts averred identify Mr. Collins as one of the employees on

whose behalf defendant may be liable under § 143-300.1(a) in

plaintiff’s statement of the facts that led to the injury.

Moreover, the affidavit suggests that Mr. Collins’s own

negligence may have resulted in decedent’s death. Specifically,

the affidavit states that: “The UCBOE is vicariously liable for

any negligence of Henry C. Collins. As a result of this

negligence, 7 year old Jonathan Beegle was struck by an oncoming

van while trying to board his school bus[.]” While we agree

with defendant that a great deal of the affidavit focuses on

alleged negligence in the design and planning of school bus

routes, which plaintiff admitted at the hearing (plaintiff

stated that this case was “largely a negligent design case”),

plaintiff also argued at the hearing on defendant’s motion that

Mr. Collins own negligence may have included his failure to turn

on his flashers 300 feet before the stop, which is a requirement

for school bus drivers. Therefore, plaintiff’s alleged claims

arose out of and were connected to events at the time of the

accident. Since our Courts have stated that liberal rules of -9- pleading are allowed in this type of action, the affidavit’s

reference to Mr. Collins and his possible negligence along with

plaintiff’s argument at the hearing were sufficient to defeat

defendant’s motion to dismiss. Thus, the record contained

evidence that would support the Industrial Commission’s exercise

of jurisdiction over the action, and the Industrial Commission

erred in granting defendant’s motion to dismiss for lack of

jurisdiction.

While defendant argues on appeal that the motion to dismiss

was also properly granted based on Rule 12(b)(6), an issue which

it raised in its motion to dismiss, the Industrial Commission

did not rule on this issue; instead, it only addressed

defendant’s motion to dismiss based on lack of jurisdiction

under Rule 12(b)(1) and (2). Therefore, we will not consider

this argument on appeal. See Tohato, Inc. v. Pinewild Mgmt.,

Inc., 128 N.C. App. 386, 390, 496 S.E.2d 800, 803 (1998) (noting

that this Court “will not consider arguments based upon issues

which were not presented or adjudicated by the trial tribunal”).

Conclusion

Based on the foregoing reasons, we reverse the Industrial

Commission’s order dismissing plaintiff’s action and remand for

hearing. -10-

REVERSED AND REMANDED.

Judges CALABRIA and ROBERT N. HUNTER, JR. concur.

Report per Rule 30(e).