IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA23-487-2
Filed 17 June 2026
Guilford County, No. 22CVS007024-400
EMILY HAPPEL, individually, Tanner Smith, a minor, and EMILY HAPPEL on behalf of TANNER SMITH as his mother, Plaintiffs,
v.
GUILFORD COUNTY BOARD OF EDUCATION and OLD NORTH STATE MEDICAL SOCIETY, INC., Defendants.
On remand by majority opinion of the Supreme Court of North Carolina in
Happel v. Guilford Cnty. Bd. of Educ., 387 N.C. 186, 913 S.E.2d 174 (2025), affirming
in part, reversing in part, and remanding a published opinion by a unanimous panel
of the Court of Appeals in Happel v. Guilford Cnty. Bd. of Educ., 292 N.C. App. 563,
899 S.E.2d 387 (2024). The case originates from an appeal by plaintiff from an order
entered on 1 March 2023 by Judge Lora C. Cubbage in Superior Court, Guilford
County, granting defendant’s motion to dismiss. Originally heard in the Court of
Appeals on 28 November 2023.
Walker Kiger, PLLC, by David Steven Walker, for Plaintiffs-Appellants.
Tharrington Smith, LLP, by Stephen G. Rawson, for Guilford County Board of Education, Defendants-Appellees.
Rossabi Law Partners, by Gavin J. Reardon and Amiel J. Rossabi, for Old North State Medical Society, Inc., Defendants-Appellees.
WOOD, Judge.
This case returns on remand from the Supreme Court of North Carolina for HAPPEL V. GUILFORD CNTY. BD. OF EDUC.
Opinion of the Court
our consideration of whether Plaintiffs’ complaint sufficiently alleges constitutional
claims under the North Carolina Constitution. Specifically, our Supreme Court
remanded two questions for our consideration: (1) “whether plaintiffs’ complaint
sufficiently alleged that defendant [ONS Medical Society (“ONSMS”)] was a state
actor[;]” and (2) “whether plaintiffs have an adequate state remedy available for their
constitutional claims.” Happel v. Guilford Cnty. Bd. of Educ., 387 N.C. 186, 216, 913
S.E.2d 174, 198 (2025). We address these two issues as directed. After careful
consideration, we conclude Plaintiffs sufficiently alleged state constitutional claims
and remand this matter to the trial court for consideration of those claims.
I. Factual and Procedural History
On 14 August 2021, Tanner Smith (“Tanner”) was fourteen years old and a
football player at Western Guilford High School, a school within the Guilford County
Schools system. By letter dated 19 August 2021, Guilford County Schools informed
Emily Happel (“Emily”), Tanner’s mother, and Brett Happel (“Brett”), Tanner’s
stepfather, that Tanner may have been exposed to a “recent COVID-19 cluster”
involving football team members at his school and that the Guilford County Public
Health Department recommended and requested COVID-19 testing for individuals
potentially infected, regardless of vaccination status. The letter stated that unless
parents allowed their children to be tested, Guilford County Schools would not allow
the players “to return to practice until cleared by a public health professional.” The
letter further stated COVID-19 testing would be available on 20 August 2021 at no
-2- HAPPEL V. GUILFORD CNTY. BD. OF EDUC.
cost at Northwest Guilford High School, conducted by ONSMS and “consent for
testing is required.” In addition to COVID-19 testing, ONSMS also administered
COVID-19 Vaccinations at the Northwest Guilford High School site.
On 20 August 2021, Brett drove Tanner to the testing site at Northwest
Guilford High School. Brett remained inside his vehicle while Tanner went into the
testing facility. Once inside, clinic workers gave Tanner a form to fill out, which he
believed to be something related to the COVID-19 test. While Tanner sat in the
waiting area, a clinic worker tried unsuccessfully to contact Emily by phone to obtain
consent for ONSMS to administer a COVID-19 vaccine to him. Clinic workers did
not attempt to contact Brett, who waited outside in his car, to obtain permission to
administer the COVID-19 vaccine to Tanner. After failing to reach Tanner’s mother
by phone, one of the clinic workers instructed the other clinic worker to “give it to him
anyway.” Tanner stated he did not want a vaccine and was only there to be tested;
however, one of the clinic workers administered a Pfizer COVID-19 vaccine to him
over his objection and without parental consent.
Plaintiffs initiated this lawsuit on 19 August 2022, alleging three causes of
action: (1) battery; (2) violations of Emily’s constitutional liberty and parental rights,
and of Tanner’s bodily autonomy rights under N.C. Const. art. I, §§ 1, 13, and 19; and
(3) violations of both Plaintiffs’ federal constitutional rights. On 21 November 2022,
the Guilford County Board of Education (“Board”) filed its answer, a motion to
dismiss pursuant to Rules 12(b)(1) and (6), and a cross-claim against ONSMS. On
-3- HAPPEL V. GUILFORD CNTY. BD. OF EDUC.
30 December 2022, ONSMS filed its answer and a motion to dismiss pursuant to
Rules 12(b)(1) and (6).
The trial court held a hearing on 30 January 2023. On 1 March 2023, the trial
court entered an order dismissing Plaintiffs’ complaints as to both Defendants. On 9
March 2023, Plaintiffs filed timely written notice of appeal pursuant to N.C. Gen.
Stat. § 7A-27(b). On appeal, Plaintiffs abandoned their federal constitutional claims,
appealing only their individual state constitution claims and the battery claim. This
Court affirmed the trial court’s ruling on both claims based on the broad scope of
immunity provided by the PREP Act. Happel v. Guilford Cnty. Bd. of Educ., 292 N.C.
App. 563, 571-72, 899 S.E.2d 387, 394 (2024).
Our Supreme Court granted discretionary review pursuant to N.C. Gen. Stat.
§ 7A-31 and issued an opinion on 21 March 2025. Happel v. Guilford Cnty. Bd. of
Educ., 387 N.C. 186, 913 S.E.2d 174 (2025). The Supreme Court affirmed this Court’s
holding as to the trial court’s dismissal of Plaintiffs’ tort claim for battery based on
the immunity provided by the PREP Act. Id. at 216, 913 S.E.2d at 198. However,
the Supreme Court reversed this Court’s holding as to the trial court’s dismissal of
the state constitutional claims stating, “[t]he PREP Act’s plain text leads us to
conclude that its immunity only covers tort injuries. Because tort injuries are not
constitutional violations, the PREP Act does not bar plaintiffs’ constitutional claims.”
Id. at 187-88, 913 S.E.2d at 180. The Supreme Court remanded the matter to this
Court for our consideration of whether Plaintiffs’ complaint sufficiently alleges
-4- HAPPEL V. GUILFORD CNTY. BD. OF EDUC.
constitutional claims under our state’s constitution.
II. Analysis
Where there is a right, there is a remedy. This is a foundational principle of every common law legal system, including ours. We have long called it a time-honored maxim. It is even enshrined in the North Carolina Constitution. To protect this principle—to ensure that every right does indeed have a remedy in our court system—this Court created what are known as ‘Corum claims.’
Washington v. Cline, 385 N.C. 824, 825, 898 S.E.2d 667, 668-69 (2024) (cleaned up)
(citing Corum v. Univ. of N.C., 330 N.C. 761, 413 S.E.2d 276 (1992)).
In order to allege a sufficient Corum claim three criteria must be met: (1) the
complaint must allege the defendant is a state actor who violated the claimant’s state
constitutional rights; (2) the claim must be a colorable claim that “present[s] facts
sufficient to support an alleged violation of a right protected by the State
Constitution;” and (3) there must be no other “adequate state remedy” for the alleged
constitutional violation. Kinsley v. Ace Speedway Racing, Ltd., 386 N.C. 418, 423, 904
S.E.2d 720, 726 (2024) (quoting Deminski on behalf of C.E.D. v. State Bd. of Educ.,
377 N.C. 406, 413, 858 S.E.2d 788, 794 (2021)) .
In Happel, the Supreme Court analyzed the second prong under Corum and
upheld Plaintiffs’ claims for violation of parental rights and bodily integrity as
colorable: “[T]he Law of the Land Clause protects both a parent’s right to control her
child’s upbringing and the right to bodily integrity[.]” Happel, 387 N.C. at 200, 913
-5- HAPPEL V. GUILFORD CNTY. BD. OF EDUC.
S.E.2d at 188. The Court thoroughly summarized the history of “perhaps the oldest
of the fundamental liberty interests” in North Carolina — “in this State, parents have
the natural and legal right to the custody, companionship, control, and bringing up
of their infant children” — and emphasized a family’s critical role in imparting moral
and cultural values on children. Id. at 195, 913 S.E.2d at 185 (emphasis in original).
Further, the Court clarified that a competent person has the constitutional right to
express their bodily integrity by “refus[ing] forced and nonmandatory medical
treatment.” Id. at 200, 913 S.E.2d at 188.
Concluding our Law of the Land Clause protects the constitutional claims
presented by Plaintiffs, the Court directed this court to evaluate the remaining
requisite elements of Corum claims, 1) “whether plaintiffs’ complaint sufficiently
alleged that defendant ONSMS was a state actor[,]” and 2) “whether plaintiffs have
an adequate state remedy available for their constitutional claims.” Id. at 216, 913
S.E.2d at 198. We address each in turn.
A. ONSMS as a State Actor
“When reviewing a motion to dismiss, an appellate court considers ‘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.’” Deminski, 377 N.C. 406, 412,
858 S.E.2d 788, 792-93 (2021) (quoting Coley v. State, 360 N.C. 493, 494-95, 631
S.E.2d 121, 123 (2006)).
In order to overcome such a motion, a plaintiff is not
-6- HAPPEL V. GUILFORD CNTY. BD. OF EDUC.
required to “conclusively establish” any factual issue in the case. Rather, the only question properly before a court reviewing a Rule 12(b)(6) motion is whether “the complaint states a claim for which relief can be granted under some legal theory when the complaint is liberally construed and all the allegations included therein are taken as true.”
Feltman v. City of Wilson, 238 N.C. App. 246, 256, 767 S.E.2d 615, 622 (2014) (citation
omitted). Therefore, to overcome Defendant’s motion to dismiss Plaintiff must have
alleged under “some legal theory” that Defendants were “state actors.” In their
complaint Plaintiffs state, in pertinent part:
17. Upon information and belief, that vaccination clinic was operated jointly by defendants.
18. Upon information and belief, the vaccination clinic was a joint venture between Guilford County Schools and Old North State Medical Society, Inc.
19. Tanner was shown to a seat, and the workers at the clinic attempted to contact Mrs. Happel, without success, to obtain consent to give Tanner a COVID-19 vaccine.
...
21. After their failed attempts to contact Mrs. Happel, one of the workers instructed the other worker to “give it to him anyway.”
23. Despite failing to get parental consent or the consent of the patient, Tanner Smith received a COVID-19 vaccine dose.
45. Guilford County Schools is a state actor.
-7- HAPPEL V. GUILFORD CNTY. BD. OF EDUC.
Our Supreme Court has stated, “[e]ncroachment by the State is, of course,
accomplished by the acts of individuals who are clothed with the authority of the
State” and thus, a Corum claim must be brought against “a state actor.” Deminski,
377 N.C. at 413, 858 S.E.2d at 793 (cleaned up). However, while the prongs of a
Corum claim, including the “state actor” requirement, are cited regularly by our
appellate courts, a thorough review of case law reveals a dearth of information
regarding what it means to be “clothed with the authority of the State” or whether a
private party can qualify as a “state actor” for the purposes of a Corum claim. See,
e.g, Deminski, 377 N.C. at 413, 858 S.E.2d at 793; Coastal Conservation Ass’n v. State,
285 N.C. App. 267, 279, 878 S.E.2d 288, 299 (2022); Proctor v. City of Jacksonville,
296 N.C. App. 665, 674, 910 S.E.2d 269, 277 (2024).
In Bailey v. Flue-Cured Tobacco Co-op. Stabilization Corp., 158 N.C. App. 449,
457, 581 S.E.2d 811, 816 (2003), this Court held that because the entity in Bailey was
“not a State actor” the claim failed. However, the plaintiffs in Bailey did not argue
that defendants were a state actor. Rather, plaintiffs merely argued that section 34
of the North Carolina Constitution applied to the litigation “even in the absence of a
State actor,” a contention with which this Court disagreed. However, this Court did
not analyze the qualifications for a “state actor.” Id.
-8- HAPPEL V. GUILFORD CNTY. BD. OF EDUC.
The issue of who qualifies as a “state actor” appears to be a novel consideration
in regard to Corum claims. Therefore, we look to other areas of law where courts
have analyzed similar principles.
For example, under 42 U.S.C. § 1983,
Private persons, jointly engaged with state officials in the prohibited action, are acting ‘under color’ of law for purposes of the statute. To act ‘under color’ of law does not require that the accused be an officer of the State. It is enough that he is a willful participant in joint activity with the State or its agents.
United States v. Price, 383 U.S. 787, 794, 86 S. Ct. 1152, 1157, 16 L. Ed. 2d 267, 272
(1966) (emphasis added). Under this theory of “joint engagement,” the U.S. Supreme
Court held that a “private party’s joint participation with state officials in the seizure
of disputed property” makes the private party a “state actor for the purposes of the
Fourteenth Amendment.” Lugar v. Edmonson Oil Co., Inc., 457 U.S. 922, 941, 102 S.
Ct. 2744, 2756, 73 L. Ed. 2d 482, 498 (1982). More recently, the Court reiterated its
holding that “when a private actor operates as a ‘willful participant in joint activity
with the State or its agents,’” the private actor is a state actor. Brentwood Acad. v.
Tennessee Secondary Sch. Athletic Ass’n, 531 U.S. 288, 296, 121 S. Ct. 924, 930, 148
L.Ed.2d 807, 817 (2001) (quoting Lugar, 457 U.S. at 941, 102 S. Ct. at 2756, 73 L. Ed.
2d at 498). This Court recently summarized the analysis for qualification as a “state
actor” under 42 U.S.C. § 1983,
In the typical case raising a state-action issue, a private party has taken the decisive step that caused the harm to
-9- HAPPEL V. GUILFORD CNTY. BD. OF EDUC.
the plaintiff, and the question is whether the State was sufficiently involved to treat that decisive conduct as state action. This may occur if the State creates the legal framework governing the conduct, if it delegates its authority to the private actor, or sometimes if it knowingly accepts the benefits derived from unconstitutional behavior. Thus, in the usual case we ask whether the State provided a mantle of authority that enhanced the power of the harm-causing individual actor.
Hailey v. Tropic Leisure Corp., 275 N.C. App. 485, 495, 854 S.E.2d 132, 140 (2020)
(emphasis in original) (quoting Nat’l Collegiate Ath. Ass’n, 488 U.S. 179, 192, 109 S.
Ct. 454, 462, 102 L. Ed. 2d 469, 484-85 (1988)).
Similarly, when this Court has analyzed fourth amendment claims, it has
determined whether a private citizen qualifies as a state actor utilizing a “totality of
the circumstances approach.” State v. Weaver, 231 N.C. App. 473, 480, 752 S.E.2d
240, 245 (2013) (emphasis added). This approach “requires special consideration of
1.) the citizen’s motivation for the search or seizure, 2.) the degree of governmental
involvement, such as advice, encouragement, knowledge about the nature of the
citizen’s activities, and 3.) the legality of the conduct encouraged by the police.” Id.
(cleaned up); see also State v. Sanders, 327 N.C. 319, 334, 395 S.E.2d 412, 422 (1990).
This Court has held that private citizens acted as state actors based on the totality of
the circumstances when they were “actively recruited” by or acted at the “request of”
police and when a landlord and police conducted a search for “joint purposes.”
Sanders, 327 N.C. at 333, 395 S.E.2d at 422.
- 10 - HAPPEL V. GUILFORD CNTY. BD. OF EDUC.
Here, Plaintiffs clearly allege that Guilford County Schools was a state actor
and that ONSMS was working jointly with the state actor when its clinic worker
allegedly forcibly vaccinated a minor against his expressed wish and without the
consent of either the parent or the patient himself.
Although our Courts have not explicitly addressed whether private parties
working jointly with the state qualify as “state actors” for purposes of Corum claims,
our Courts have consistently held that “a complaint should not be dismissed for
insufficiency unless it appears to a certainty that plaintiff is entitled to no relief under
any state of facts which could be proved in support of the claim. Pleadings are to be
liberally construed.” Benton v. W. H. Weaver Const. Co., 28 N.C. App. 91, 94, 220
S.E.2d 417, 419 (1975) (citation and other emphasis omitted). Furthermore, when
“the statement of [Plaintiff’s] claim in the complaint is sufficient to enable the adverse
party to answer and prepare for trial, to allow for the application of the doctrine of
res judicata, and to show the type of case brought[,]” it is an adequate pleading. Id.
at 95, 220 S.E.2d. at 420.
Because there are legal theories under which ONSMS could be viewed as a
state actor such as “joint engagement” used in § 1983 claims and the “totality of the
circumstances” used in fourth amendment claims, we hold Plaintiffs sufficiently
alleged ONSMS was a state actor.
B. Adequate State Remedy
- 11 - HAPPEL V. GUILFORD CNTY. BD. OF EDUC.
“When the plaintiff has a cognizable state constitutional claim and cannot
access the courts to obtain any form of relief, Corum is available.” Washington, 385
N.C. at 830, 898 S.E.2d at 671. “[T]o be considered adequate in redressing a
constitutional wrong, a plaintiff must have at least the opportunity to enter the
courthouse doors and present his claim.” Craig v. New Hanover Cty. Bd. of Educ.,
363 N.C. 334, 339-40, 678 S.E.2d 351, 355 (2009). Direct constitutional claims are
not available where there are claims and or remedies under state law that provide an
alternative to “the extraordinary exercise of [ ] inherent constitutional power.”
Corum, 330 N.C. at 784, 413 S.E.2d at 291.
Our Supreme Court has clearly stated that the federal PREP Act provides
immunity to both entities and individuals against “any type of tortious injury:
physical injury, property damage, loss of use, and so on.” Happel, 387 N.C. at 211,
913 S.E.2d at 194. Thus, the PREP Act bars Plaintiffs’ battery claims, or any other
tort claim, whether brought against a party in their official capacity or individually,
completely foreclosing any opportunity to obtain relief apart from a Corum claim.
The PREP Act provides Plaintiffs with no remedy under state law that would serve
as an alternative to the exceptional use of constitutional authority.
Our courts have long held that a state law claim “barred by sovereign or
governmental immunity is not an adequate remedy” under the third element of a
Corum claim. Deminski, 377 N.C. at 413, 858 S.E.2d at 794. An adequate state
remedy in “redressing a constitutional wrong” must provide the plaintiff an
- 12 - HAPPEL V. GUILFORD CNTY. BD. OF EDUC.
opportunity to “enter the courthouse doors and present his claim,” and “must provide
the possibility of relief under the circumstances.” Craig, 363 N.C. at 339-340, 678
S.E.2d at 355.
A tort claim cannot stand as an “adequate remedy” if PREP Act immunity
ensures the plaintiff has neither the opportunity to enter the courthouse nor the
possibility of relief. Therefore, we hold, under the facts of this case, Plaintiffs have
no other “adequate state remedy” for their alleged constitutional violations.
Plaintiff’s complaint withstands the motion to dismiss. Deminski, 377 N.C.
at 412, 858 S.E.2d at 792–93; Price, 383 U.S. at 794, 86 S. Ct. at 1157, 16 L. Ed. 2d
at 272; State v. Weaver, 231 N.C. App. at 480, 752 S.E.2d at 245. Therefore, we
remand this case to the trial court for a hearing on Plaintiff’s claims. Upon remand
the trial court must determine whether, under the facts of this case, Defendants were
“clothed with the authority of the State” for the purposes of a Corum claim and if so
whether any claim is meritorious.
III. Conclusion
The PREP Act does not bar Plaintiffs’ colorable constitutional claims. Taking
all of Plaintiffs’ allegations as true, we conclude there are sufficient legal theories
under which ONSMS could be deemed a state actor and there is no other “adequate
state remedy” for the alleged constitutional violations. Therefore, we reverse the trial
court’s order to dismiss and remand this matter to the trial court to determine if
- 13 - HAPPEL V. GUILFORD CNTY. BD. OF EDUC.
Defendants were “clothed with the authority of the State” for the purposes of a Corum
claim and if so whether any claim is meritorious.
REVERSED AND REMANDED.
Judges COLLINS and CARPENTER concur.
- 14 -