IN THE COURT OF APPEALS OF NORTH CAROLINA
2021-NCCOA-454 No. COA20-485
Filed 7 September 2021
Stokes County, No. 18 CVS 824
LAUREN OSBORNE, by and through her GUARDIAN, MICHELLE ANN POWELL and MICHELLE ANN POWELL, Plaintiffs,
v.
YADKIN VALLEY ECONOMIC DEVELOPMENT DISTRICT, INCORPORATED; STOKES COUNTY BOARD OF EDUCATION; STOKES COUNTY SCHOOLS; SONYA M. COX; PATRICIA M. MESSICK; REBECCA BOLES; WILLIAM HART; JAMIE YONTZ; BRAD LANKFORD; RONNIE MENDENHALL; JEFF COCKERHAM; Defendants.
Appeal by Plaintiffs from orders entered 26 August 2019 by Judge Stanley L.
Allen and 18 February 2020 by Judge Eric C. Morgan in Stokes County Superior
Court. Heard in the Court of Appeals 26 January 2021.
Hendrick Bryant Nerhood Sanders & Otis, LLP, by W. Kirk Sanders and Joshua P. Dearman, for Plaintiffs-Appellants.
Tharrington Smith, LLP, by Deborah R. Stagner, for Stokes County Board of Education, Defendant-Appellee.
WOOD, Judge.
¶1 Lauren Osborne (“Lauren”) and Michelle Ann Powell (“Ms. Powell”), Lauren’s
mother, (collectively, “Plaintiffs”) appeal from an order granting summary judgment
regarding Plaintiffs’ negligence claim and Title IX of the Education Amendments of
1972 (“Title IX”) claim in favor of the Stokes County Board of Education (the “Board”), OSBORNE V. YADKIN VALLEY ECON. DEV. DIST. INC.
2021-NCCOA-454
Opinion of the Court
and an order dismissing Plaintiffs’ claims under 42 U.S.C. § 1983 et seq. (“Section
1983”). After careful review of the record and applicable law, we affirm the order of
the trial court.
I. Background
¶2 Lauren was a twenty-year-old special-needs student who attended West Stokes
High School. Lauren is severely disabled with an IQ of forty-one and the functional
capacity of a first-grade student. Testimony from Lauren’s teacher, nurse, assistant,
principal, yellow bus driver, and the superintendent demonstrates Lauren was
vulnerable, immature, and susceptible to exploitation. In addition to her mental
disability, Lauren suffers from severe diabetes. Her condition requires her to have
an insulin pump, emergency medical plan, and monitoring by adults throughout the
day as she has needed transportation to the hospital for medical care on several
occasions. Lauren also required constant adult supervision at school to prevent
bullying by other students.
¶3 Every special-needs student has their own Individualized Education Plan
(“IEP”) prepared by an IEP team that outlines that student’s learning plan. Jane
Wettach, Parents’ Guide to Special Education in North Carolina 12 (2017).
https://law.duke.edu/childedlaw/docs/Parents%27_guide.pdf. The Board oversees
and administers public schools in Stokes County, North Carolina. Entities, like the
Board, are required to give parents advance notice of a student’s annual IEP OSBORNE V. YADKIN VALLEY ECON. DEV. DIST. INC.
development meeting. The Board is also required to encourage parents to participate
in the development of their student’s learning plans. Throughout her enrollment in
Stokes County Schools (“SCS”), Lauren had an IEP, and she received transportation
to her assigned school as a “related service” to her IEP, under the federal Individuals
with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq. Prior to November
2013, Lauren rode to West Stokes High School on a yellow school bus owned by SCS.
Lauren’s bus exclusively transported special-needs students and had an assigned bus
monitor1 because other students on the bus required a monitor as part of their IEPs.
This bus was known as an exceptional children’s (“EC”) bus.
¶4 In 2013, many special-needs students in Stokes County were assigned to
specialized classes offered at schools other than their districted schools, and their bus
rides could be exceptionally long. To address the long bus rides for students and to
promote the efficiency of its bus fleet, SCS Transportation Director Brad Lankford
(“Mr. Lankford”) recommended that the Board explore using contracted
transportation for exceptional students. Mr. Lankford investigated the cost of
contracting transportation services. In August 2013, the Board contracted with
Yadkin Valley Economic Development District, Inc. (“YVEDDI”) to provide
1 A bus monitor rides a school bus on assigned route(s) and schedule(s) to provide safe
and efficient transportation so that a student may enjoy the fullest possible advantage from the programs and offerings of the school system. We use “bus monitor” and “safety monitor” interchangeably throughout. OSBORNE V. YADKIN VALLEY ECON. DEV. DIST. INC.
transportation for some of the special-needs students enrolled in SCS.
¶5 YVEDDI is a non-profit corporation that has provided transportation services
for several neighboring school districts for decades. YVEDDI also provides
transportation services for Head Start2 and sheltered workshop programs for adults
with disabilities. Before recommending that YVEDDI provide transportation
services for SCS students, Mr. Lankford talked to transportation directors in
surrounding counties to get references and an idea of the cost and type of services
YVEDDI provided. Mr. Lankford also requested qualification and safety information
from YVEDDI’s transportation director, Jeff Cockerham (“Mr. Cockerham”).
YVEDDI had a safety plan in place which included driver hiring procedures and
qualifications, drug testing, vehicle maintenance, and security. Before the Board
entered into its initial contract with YVEDDI, Mr. Cockerham provided to Mr.
Lankford the following: YVEDDI’s safety plan; minimum qualifications for YVEDDI
drivers; training program for YVEDDI drivers; YVEDDI’s drug and alcohol
compliance documentation; preventative maintenance schedule; and certificate of
liability insurance. YVEDDI offered to quote its bid with safety monitors on board
the vehicles, but the Board declined to have YVEDDI include safety monitors in the
2 Head Start is a federally funded, comprehensive program designed to promote the
readiness of infants, toddlers, and preschool-aged children from low-income families through a variety of special services. OSBORNE V. YADKIN VALLEY ECON. DEV. DIST. INC.
bid. The State does not reimburse school systems for safety monitors.
¶6 The Board’s contract with YVEDDI required the transportation company to
comply with its approved safety plan, provide a well-trained driver, conduct pre-
employment criminal background checks and drug testing of drivers, and to conduct
random drug testing according to North Carolina Department of Transportation
(“NCDOT”) regulations. YVEDDI began transporting some SCS special-needs
students to and from school in August 2013, at the start of the 2013-2014 school year.
The Board entered into subsequent contracts with YVEDDI to transport special-
needs students to and from school in the 2014-2015 and 2015-2016 school years. The
YVEDDI vans that transported SCS students were equipped with safety equipment
including first aid kits, NCDOT-mandated video cameras, and “push to talk phones.”
¶7 Lauren was accustomed to riding a yellow school bus with other special-needs
students and a safety monitor for transportation to West Stokes High School.
Starting in November 2013, the Board changed Lauren’s transportation from an
exceptional students school bus with a safety monitor to a YVEDDI van that did not
have a safety monitor. The school notified Lauren’s mother of the change to Lauren’s
transportation service only after the arrangements were made. According to Mr.
Lankford’s deposition testimony, Lauren’s change from an exceptional students
school bus with a safety monitor to a YVEDDI van without one required an IEP team
meeting. Additionally, Lauren’s teacher testified that transportation was not OSBORNE V. YADKIN VALLEY ECON. DEV. DIST. INC.
discussed in Lauren’s annual IEP meeting, and furthermore, had it been discussed
during the meeting, he would have recommended a safety monitor for his special-
needs students like Lauren.
¶8 During the 2014-2015 and 2015-2016 school years, Lauren was transported in
a YVEDDI van driven by Robert King (“King”), a YVEDDI employee. King held a
valid North Carolina driver’s license that met YVEDDI’s license requirements. King
completed YVEDDI’s application, screening, and driver training required under
YVEDDI’s safety plan. King had no prior criminal record and received both pre-
employment and quarterly criminal background checks. King was drug tested and
received forty hours of classroom and on-the-job driver training that met NCDOT
standards. King was trained on interacting with disabled passengers; sensitivity and
sexual harassment; defensive driving; bloodborne pathogens; and first aid and CPR.
King was also informed he was not supposed to touch the students he was
transporting.
¶9 On two separate days in December 2015, while transporting Lauren and other
students, King stopped the YVEDDI van multiple times and sexually assaulted
Lauren. The YVEDDI van was equipped with video cameras, and video evidence
reveals King sexually assaulted Lauren twenty-one times by groping and digitally
penetrating her. Though Lauren was twenty years old, she only had the functional
capacity of a first-grade student and lacked the capability to comprehend and consent OSBORNE V. YADKIN VALLEY ECON. DEV. DIST. INC.
to the sexual acts committed against her. Specifically, Lauren lacked the
communication skills to tell Ms. Powell why she suffered from anal bleeding resulting
from the sexual assaults.
¶ 10 A Stokes County resident was concerned about the operation of the van and
reported King’s driving to YVEDDI, which prompted the company to review the video
footage on Lauren’s van. YVEDDI discovered King’s inappropriate actions against
Lauren and immediately reported King’s actions to law enforcement and terminated
his contract. YVEDDI did not notify the Board of the assaults, King’s arrest, or King’s
termination. School officials first learned about the sexual assaults from Lauren’s
mother, Ms. Powell, after she was contacted by law enforcement following King’s
arrest. When the Board’s superintendent, assistant superintendent, Exceptional
Childrens director, transportation director, and the West Stokes High School
principal all learned of the sexual assaults, they did not investigate for other potential
sexual assaults against students, draft a report on Lauren’s sexual abuse, or offer
post-abuse counseling. The Board’s policies require all verified sexual assault cases
to be investigated and reported to the State Board of Education. The Board also
requires written documentation of all reports of sexual assaults and requires the
school system’s responses to be maintained. The Board did not report Lauren’s sexual
assaults to the State Board of Education as required by its standard procedure, nor
did it offer an explanation as to why it did not follow its standard procedure. OSBORNE V. YADKIN VALLEY ECON. DEV. DIST. INC.
¶ 11 On December 4, 2018, Plaintiffs filed a complaint against the Board, the
Board’s individual school board members and staff, YVEDDI, Mr. Cockerham, and
SCS. Plaintiffs asserted claims for negligence; negligence per se; negligent infliction
of emotional distress; Section 1983 discrimination; Title IX damages; and negligent
supervision, retention, and common carrier stemming from the multiple sexual
assaults by the van driver.
¶ 12 On March 6, 2019, the Board filed its answer and motion to dismiss Plaintiffs’
Section 1983 and Title IX claims. On August 26, 2019, the trial court granted the
Board’s motion in part, dismissing all of Plaintiffs’ Section 1983 claims and Plaintiffs’
Title IX claims with respect to the individual school board members and staff. The
Title IX claims against the Board, however, remained intact. On August 22, 2019,
Plaintiffs voluntarily dismissed their claims against YVEDDI and Mr. Cockerham.
¶ 13 On November 13, 2019, Plaintiffs moved for partial summary judgment on
liability and causation of damages regarding Plaintiffs’ negligence per se claim. The
Board moved for summary judgment as to Plaintiffs’ remaining Title IX; negligence;
negligence per se; and negligent supervision, retention and common carrier claims on
November 14, 2019. On February 18, 2020, the trial court denied Plaintiffs’ motion
for partial summary judgment and granted the Board’s motion for summary
judgment on Plaintiffs’ negligence per se; negligence; negligent infliction of emotional
distress; Title IX; and negligent hiring, training, retention, and supervision claims. OSBORNE V. YADKIN VALLEY ECON. DEV. DIST. INC.
On March 2, 2020, Plaintiffs filed a notice of appeal.
II. Discussion
¶ 14 Plaintiffs raise several arguments on appeal. Each will be addressed in turn.
A. The Board’s Motion to Dismiss
¶ 15 Plaintiffs contend the trial court erred in granting the Board’s motion to
dismiss Plaintiffs’ claims under Section 1983. Plaintiffs’ claims arise from alleged
violations of Lauren’s constitutional rights to equal protection and substantive due
process. Plaintiffs asserted an additional Section 1983 claim alleging failure to train
and supervise. Specifically, Plaintiffs argue the trial court erred in dismissing their
Section 1983 claims because their complaint “stated sufficient factual allegations” to
state a claim pursuant to N.C. R. Civ. P. 12(b)(6). We disagree.
¶ 16 In reviewing an order granting a motion to dismiss, “we review the pleadings
de novo to determine their legal sufficiency and . . . whether the trial court’s ruling
was proper.” Radcliffe v. Avenel Homeowners Ass’n, Inc., 248 N.C. App. 541, 552, 789
S.E.2d 893, 902 (2016) (citation omitted). “A motion to dismiss under Rule 12(b)(6)
tests the legal sufficiency of the complaint.” Raritan River Steel Co. v. Cherry, Bekaert
& Holland, 322 N.C. 200, 205, 367 S.E.2d 609, 612 (1988). “North Carolina is a notice
pleading state.” White v. Trew, 366 N.C. 360, 363, 736 S.E.2d 166, 168 (2013) (citation
omitted). “While the concept of notice pleading is liberal in nature, a complaint must
nonetheless state enough to give the substantive elements of a legally recognized OSBORNE V. YADKIN VALLEY ECON. DEV. DIST. INC.
claim or it may be dismissed under Rule 12(b)(6).” Raritan River Steel Co., 322 N.C.
at 205, 367 S.E.2d at 612.
¶ 17 “When the complaint on its face reveals the absence of fact sufficient to make
a good claim, dismissal of the claim pursuant to Rule 12(b)(6) is properly granted.”
Oberlin Capital, L.P. v. Slavin, 147 N.C. App. 52, 57, 554 S.E.2d 840, 845 (2001)
(internal quotations marks, citation, and alterations omitted). “On a motion to
dismiss, the complaint’s material factual allegations are taken as true. Legal
conclusions, however, are not entitled to a presumption of validity.” Wells Fargo
Bank, N.A. v. Corneal, 238 N.C. App. 192, 195, 767 S.E.2d 374, 377 (2014) (citation
omitted). Dismissal is appropriate when “(1) the complaint on its face reveals that
no law supports the plaintiff’s claim; (2) the complaint on its face reveals the absence
of facts sufficient to make a good claim; or (3) the complaint discloses some fact that
necessarily defeats the plaintiff’s claim.” Wood v. Guilford Cnty., 355 N.C. 161, 166,
558 S.E.2d 490, 494 (2002) (citation omitted).
1. Equal Protection
¶ 18 Plaintiffs allege the Board violated Lauren’s constitutional right to equal
protection. The Equal Protection Clause of the Fourteenth Amendment (the “Equal
Protection Clause”) to the United States Constitution (the “Constitution”) provides
that “[n]o State shall . . . deny to any person within its jurisdiction the equal
protection of the laws.” U.S. Const. amend. XIV, § 1. To state an equal protection OSBORNE V. YADKIN VALLEY ECON. DEV. DIST. INC.
claim, a plaintiff must plead sufficient facts to “demonstrate that he has been treated
differently from others with whom he is similarly situated and that the unequal
treatment was the result of intentional or purposeful discrimination.” Williams v.
Hansen, 326 F.3d 569, 576 (4th Cir. 2003) (citation and quotation marks omitted),
cert. denied, 540 U.S. 1089, 124 S. Ct. 958, 157 L. Ed. 2d 794 (2003); see also Gilreath
v. Cumberland Cnty. Bd. of Educ., No. COA16-927, 2017 N.C. App. LEXIS 307, at
*16-17 (N.C. Ct. App. April 18, 2017). The second element of an equal protection
claim requires factual allegations sufficient to show that any unequal treatment was
done intentionally or purposefully to discriminate against the plaintiff. Good Hope
Hosp., Inc. v. N.C. Dept. of Health and Human Servs., 174 N.C. App. 266, 274, 620
S.E.2d 873, 880 (2005)).
¶ 19 Here, the complaint alleges that “Lauren, as a female, is a member of a
protected class under the Equal Protection Clause of the Fourteenth Amendment to
the United States Constitution.” However, because the complaint is devoid of any
factual allegations sufficient to establish that Lauren was treated differently from
similarly situated male students, it fails to state the first element of an equal
protection violation based on Lauren’s gender. See Hanton v. Gilbert, 842 F. Supp.
845, 854 (M.D.N.C.), aff’d, 36 F.3d 4 (4th Cir. 1994) (“Plaintiff must show that she
was treated differently from other similarly situated individuals and that but for her
sex she would not have been so treated.”); see also Gilreath, 2017 N.C. App. LEXIS OSBORNE V. YADKIN VALLEY ECON. DEV. DIST. INC.
307, at *16-17.
¶ 20 Plaintiffs also allege in the complaint that Lauren was denied equal protection
on the basis of her disability, because she was isolated and segregated from the
general student population in transportation. However, the Supreme Court has held
that the disabled are not a suspect or quasi-suspect class entitled to special protection
under the Equal Protection Clause. See Brown v. N.C. Dep’t of Motor Vehicles, 166
F.3d 698, 706 (4th Cir. 1999); see also City of Cleburne v. Cleburne Living Ctr., 473
U.S. 432, 445-46, 105 S. Ct. 3249, 3257-58, 87 L. Ed. 2d 313, 324 (1985).
¶ 21 Therefore, we conclude Plaintiffs’ claim under Section 1983 for violation of the
Equal Protection Clause was properly dismissed under Rule 12(b)(6).
2. Substantive Due Process
¶ 22 Plaintiffs also allege the Board deprived Lauren of her right to substantive due
process. “Section 1983 imposes liability on state actors who cause the deprivation of
any rights, privileges, or immunities secured by the Constitution. Under established
precedent, these constitutional rights include a Fourteenth Amendment substantive
due process right against state actor conduct that deprives an individual of bodily
integrity.” Doe v. Durham Pub. Sch. Bd. of Educ., No. 1:17-CV-773, 2019 WL 331143,
at *8 (M.D.N.C. Jan. 25, 2019); see also Farrell v. Transylvania Cnty. Bd. of Educ.,
199 N.C. App. 173, 180, 682 S.E.2d 224, 230 (2009) (recognizing the “right to ultimate
bodily security . . . is unmistakably established in our constitutional decisions as an OSBORNE V. YADKIN VALLEY ECON. DEV. DIST. INC.
attribute of the ordered liberty that is the concern of substantive due process”
(citation omitted)). Sexual molestation of a student by a state actor may be a
constitutional injury for purposes of Section 1983. Durham Pub. Sch. Bd. of Educ.,
2019 WL 331143 at * 8 (citations omitted). However, “a state’s failure to protect an
individual against private violence simply does not constitute a violation of the Due
Process Clause.” Stevenson ex rel. Stevenson v. Martin Cnty. Bd. of Educ., 3 Fed.
App’x 25, 32 (4th Cir. 2001) (citing DeShaney v. Winnebago County Dep’t of Social
Servs., 489 U.S. 189, 198, 109 S. Ct. 998, 1004, 103 L. Ed. 2d 249, 260 (1989)).
¶ 23 Here, Plaintiffs allege the Board “created a dangerous environment for
Lauren” by contracting with YVEDDI to transport disabled students, failing to
require YVEDDI to have a monitor on the bus, and by not verifying that YVEDDI
was monitoring the video camera. However, “to establish [Section] 1983 liability
based on a state-created danger theory, a plaintiff must show that the state actor
created or increased the risk of private danger, and did so directly through affirmative
acts, not merely through inaction or omission.” Doe v. Rosa, 795 F.3d 429, 439 (4th
Cir. 2015) (emphasis added); see also DeShaney, 489 U.S. at 201, 109 S. Ct. at1006,
103 L. Ed. 2d at 262-63 (observing that “[w]hile the State may have been aware of
the dangers that [the child] faced in the free world, it played no part in their creation,
nor did it do anything to render him any more vulnerable to them . . . . Under th[o]se
circumstances, the State had no constitutional duty to protect [the child.]”). Plaintiffs’ OSBORNE V. YADKIN VALLEY ECON. DEV. DIST. INC.
complaint does not contain factual allegations that would establish conduct by the
Board that was so intentional or affirmative that it shocks the conscience.
¶ 24 Thus, we conclude Plaintiffs’ claim under Section 1983 for violation of
substantive due process was properly dismissed under Rule 12(b)(6).
3. Failure to Train and Supervise
¶ 25 Plaintiffs also allege the Board failed to properly train and supervise its
employees, including YVEDDI and King, which led to violations of Lauren’s
constitutional rights to equal protection. As a preliminary matter, we note our courts
have not yet decided a failure to train claim arising under Section 1983. Therefore,
we look to decisions of federal jurisdictions for persuasive guidance.
A municipality’s failure to train its officials can result in liability under [S]ection 1983 only when such failure reflects a deliberate indifference to the rights of its citizens and the identified deficiency in a city’s training program [is] closely related to the ultimate injury. Additionally, a plaintiff must show a direct causal link between a specific deficiency in training and the particular violation alleged.
Hill v. Robeson Cnty., N.C., 733 F. Supp. 2d 676, 686-87 (E.D.N.C. 2010) (internal
citations and quotation marks omitted). However, “[a] municipality’s culpability for
a deprivation of rights is at its most tenuous where a claim turns on a failure to train.”
Connick v. Thompson, 563 U.S. 51, 61, 131 S. Ct. 1350, 1359, 179 L. Ed. 2d 417, 426-
27 (2011). “[D]eliberate indifference is a stringent standard of fault, requiring proof
that a municipal actor disregarded a known or obvious consequence of his action. . . . OSBORNE V. YADKIN VALLEY ECON. DEV. DIST. INC.
A pattern of similar constitutional violations by untrained employees is ordinarily
necessary to demonstrate deliberate indifference for purposes of failure to train.” Id.
at 61-62 (internal quotation marks omitted). The deficiency in training must also
“make the occurrence of the specific violation a ‘reasonable probability rather than a
mere possibility.’ ” Hatley v. Bowden, No. 5:13-CV-765-FL, 2014 WL 860538, at *3-4
(E.D.N.C. Mar. 5, 2014) (quoting Semple v. City of Moundsville, 195 F.3d 708, 713
(4th Cir. 1999)).
¶ 26 Here, Plaintiffs fail to allege sufficient factual allegations to support a liability
claim under Section 1983 for failure to train the Board, school officials, YVEDDI, and
King. Plaintiffs do not allege there were prior incidents of this kind, nor are there
any factual allegations showing that the Board or school officials demonstrated a
deliberate indifference that was likely to lead to a contracted bus driver’s sexual
abuse of a student. The failure to train municipal personnel may rise to the level of
an unconstitutional custom or policy, where there is a history of widespread abuse.
City of Canton v. Harris, 489 U.S. 378, 389, 109 S. Ct. 1197, 1204, 103 L. Ed. 2d 412,
426-27 (1989); see also Wellington v. Daniels, 717 F.2d 932, 936 (4th Cir. 1983).
Plaintiffs further fail to identify any specific deficiency in training that led to a
violation of Lauren’s constitutional rights. Instead, the complaint contains general
contentions that the Board failed to provide training or supervision regarding the
duty to “[m]onitor, perceive, and stop sexual assault and abuse.” However, OSBORNE V. YADKIN VALLEY ECON. DEV. DIST. INC.
allegations of mere negligence with regard to training are insufficient to state a claim
for municipal liability. See Spell v. McDaniel, 824 F.2d 1380, 1390 (4th Cir. 1987));
see also City of Canton, 489 U.S. at 389, 109 S. Ct. at 1205, 103 L. Ed. 2d at 427
(finding that mere allegations regarding a city policy or custom cannot confer
municipal liability for failure to train (citations omitted)).
¶ 27 Plaintiffs also asserted Section 1983 liability based on a failure to supervise.
[T]o establish supervisory liability under [Section] 1983[, a plaintiff must show]: (1) that the supervisor had actual or constructive knowledge that his subordinate was engaged in conduct that posed ‘a pervasive and unreasonable risk’ of constitutional injury to citizens like the plaintiff; (2) that the supervisor’s response to that knowledge was so inadequate as to show ‘deliberate indifference to or tacit authorization of the alleged offensive practices,’; and (3) that there was an ‘affirmative causal link’ between the supervisor’s inaction and the particular constitutional injury suffered by the plaintiff.
See Farrell, 199 N.C. App. at 181, 682 S.E.2d at 230 (quoting Shaw v. Stroud, 13 F.3d
791, 799 (4th Cir.), cert. denied, 513 U.S. 813, 115 S. Ct. 67, 130 L. Ed. 2d 24 (1994)).
Likewise, “a supervisor’s failure to train his employees can subject him to liability
where the failure to train reflects a ‘deliberate indifference’ to the rights of citizens.”
Durham Cnty. Bd. of Educ., 2019 WL 331143, at *8 (quoting Layman v. Alexander,
294 F. Supp. 2d 784, 793 (W.D.N.C. 2003)); see also City of Canton, 489 U.S. at 389,
109 S. Ct. at 1204, 103 L. Ed. 2d at 429 (holding that respondent’s civil rights claim
was cognizable only if petitioner’s failure to train its police force “reflect[ed] a OSBORNE V. YADKIN VALLEY ECON. DEV. DIST. INC.
deliberate indifference to the constitutional rights of its inhabitants”).
¶ 28 Here, King is the only individual Plaintiffs allege to have abused Lauren. King
was not a subordinate of the Board. No school employee is alleged to have committed
acts upon Lauren that violated her substantive due process rights to bodily integrity
and to be free from sexual abuse. Thus, a claim that the Board failed to properly
train or supervise its employees or subordinates fails.
¶ 29 Plaintiffs do not allege facts of supervisory liability sufficient to survive a
motion to dismiss. All factual allegations in the complaint regarding the Board’s
alleged supervisory liability consist of contentions that it failed to ensure YVEDDI
properly trained and supervised its employees. Such allegations simply do not
support a plausible conclusion that the Board had actual or constructive knowledge
that King was engaged in conduct that posed a pervasive and unreasonable risk of
constitutional injury to Lauren. Therefore, the trial court properly dismissed
Plaintiffs’ Section 1983 claims against the Board for failure to train and supervise.
B. The Board’s Motion for Summary Judgment
¶ 30 Next, Plaintiffs allege the trial court erred in granting Defendant’s motion for
summary judgment with respect to Plaintiffs’ negligence and Title IX claims.
¶ 31 This Court reviews an appeal from a summary judgment order de novo. Forbis
v. Neal, 361 N.C. 519, 524, 649 S.E.2d 382, 385 (2007). “Under a de novo standard of
review, this Court considers the matter anew and freely substitutes its own judgment OSBORNE V. YADKIN VALLEY ECON. DEV. DIST. INC.
for that of the trial court.” Reese v. Mecklenburg Cnty., 200 N.C. App. 491, 497, 685
S.E.2d 34, 38 (2009) (citations omitted).
¶ 32 Summary judgment is appropriate “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that any party is entitled to a
judgment as a matter of law.” N.C. Gen. Stat. 1A-1, Rule 56(c) (2020). “If a genuine
issue of material fact exists, a motion for summary judgment should be denied.” Park
East Sales, LLC v. Clark-Langley, Inc., 186 N.C. App. 198, 202, 651 S.E.2d 235, 238
(2007) (citing Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 471, 597 S.E.2d 674, 694
(2004)).
¶ 33 To survive a motion for summary judgment in a negligence case, the plaintiff
must establish a prima facie case of negligence. Specifically, Plaintiffs must show
“(1) [the Board] owed the plaintiff a duty of reasonable care, (2) [the Board] breached
that duty, (3) [the Board’s] breach was an actual and proximate cause of the plaintiff’s
injury, and (4) the plaintiff suffered damages as the result of [the Board’s] breach.”
Gibson v. Ussery, 196 N.C. App. 140, 143, 675 S.E.2d 666, 668 (2009) (quoting Winters
v. Lee, 115 N.C. App. 692, 694, 446 S.E.2d 123, 124 (1994) (citations omitted)). “[T]he
question of foreseeability is one for the jury.” Carsonaro v. Colvin, 215 N.C. App. 455,
459, 716 S.E.2d 40, 45 (2011) (quoting Fussell v. NC Farm Bureau Mut. Ins. Co., 364
N.C. 222, 226, 695 S.E.2d 437, 440 (2010)). Summary judgment is rarely granted in OSBORNE V. YADKIN VALLEY ECON. DEV. DIST. INC.
negligence cases. King v. Allred, 309 N.C. 113, 115, 305 S.E.2d 554, 556 (1983).
¶ 34 “The party moving for summary judgment has the burden of establishing the
lack of any triable issue,” and “[a]ll inferences of fact from the proofs offered at the
hearing must be drawn . . . in favor of the party opposing the motion.” Monzingo v.
Pitt County Memorial Hosp. Inc., 331 N.C. 182, 187, 415 S.E.2d 341, 344 (1992)
(citations omitted). The Board has the burden to prove Plaintiffs failed to
demonstrate the essential elements of negligence. See id. (citations omitted).
1. The Board’s Negligence
¶ 35 Plaintiffs contend the trial court erred in granting the Board’s motion for
summary judgment with respect to Plaintiffs’ negligence claim. Plaintiffs argue
genuine issues of material fact exist regarding (1) the duty of care the Board owed to
Lauren and (2) the foreseeability of the harm Lauren suffered. While we sympathize
with Plaintiffs for the irreparable harm Lauren suffered, we must find the trial court
properly granted summary judgment under our current tort law.
¶ 36 First, the parties dispute whether the Board should be held to a heightened
standard of care when making transportation decisions for special-needs students.
Plaintiffs contend the Board had a heightened duty of care to ensure Lauren’s safety
from the dangerous actions of others because she was a member of a vulnerable
population. In cases where the student in question is a member of a vulnerable
population, particularly one who possesses an IQ far below the average for her age, OSBORNE V. YADKIN VALLEY ECON. DEV. DIST. INC.
we reiterate that the State owes a duty of care “relative to the [victim]’s maturity.”
Nowlin v. Moravian Church in Am., 228 N.C. App. 307, 311, 745 S.E.2d 51, 54 (2013).
In Nowlin, this Court held “foreseeability of harm to the [victim] is the relevant test
which defines the extent of the duty to safeguard [victims] from the dangerous acts
of others.” Nowlin, 228 N.C. App. at 311, 745 S.E.2d at 54. Under a pure
“foreseeability of harm test,” we recognize a jury could reasonably conclude the Board
owed students such as Lauren a heightened duty of care. See id.; see also Carsonaro,
215 N.C. App. at 459, 716 S.E.2d at 45 (citing Fussell, 364 N.C. at 226, 695 S.E.2d at
440) (holding foreseeability is generally a question to be decided by the jury). While
we agree with Plaintiffs that the Board was required to exercise a heightened duty of
care while making decisions regarding its special needs pupils, we find the trial court
properly granted summary judgment under our current tort law.
¶ 37 Plaintiffs rely on Slade v. New Hanover Cnty. Bd. of Educ., 10 N.C. App. 287,
291, 178 S.E.2d 316, 318 (1971), in which this Court recognized that certain school
employees, such as a bus driver, have a duty to exercise a high degree of caution in
fulfilling their employment obligations. 10 N.C. App. at 291, 178 S.E.2d at 318 (citing
Greene v. Board of Education, 237 N.C. 336, 340, 75 S.E.2d 129, 131 (1953)). This
Court noted that a bus driver is responsible for the safety of children of different ages
and levels of maturity so that “it is his duty to see that those who do alight [from the
bus] are in places of safety” and looked after with care “proportionate to the degree of OSBORNE V. YADKIN VALLEY ECON. DEV. DIST. INC.
danger inherent in the passenger’s youth and inexperience.” Id. at 291, 295, 178
S.E.2d at 318, 321. We emphasize the standard recognized in Slade and reiterate
that certain school employees have a duty to exercise a high degree of caution in
fulfilling their responsibilities. However, a fundamental principle of our current tort
law defeats Plaintiffs’ claim in this case. Generally, “one who employs an
independent contractor is not liable for the independent contractor’s negligence
unless the employer retains the right to control the manner in which the contractor
performs his work.” Woodson v. Rowland, 329 N.C. 330, 350, 407 S.E.2d 222, 234
(1991). The only exception to this rule is certain non-delegable duties, such as work
involving ultrahazardous or inherently dangerous activity. Id.
¶ 38 Here, the Board delegated its duty to safely transport Stokes County students
pursuant to N.C. Gen. Stat. § 115C-253, which provides “[a]ny local board of
education may . . . enter into a contract with any person, firm or corporation for the
transportation . . . of pupils enrolled in the public schools.” N.C. Gen. Stat. § 115C-
253 (2020). Plaintiffs essentially argue the Board should be held liable in tort law
despite the Board’s statutory authority to delegate the transportation of its students.
However, this theory of liability ignores our current independent contractor rules.
There is no evidence in the record to suggest the Board retained the right to control
the manner in which YVEDDI would transport students such as Lauren. YVEDDI
hired and controlled the drivers, owned its own vehicles, determined its routes, and OSBORNE V. YADKIN VALLEY ECON. DEV. DIST. INC.
set its own policies. The Board researched and reviewed YVEDDI’s reputation, safety
plans, and, after contracting, provided names and addresses of students to be
transported, along with bell times. Therefore, the Board did not exercise the degree
of control over YVEDDI necessary to convert YVEDDI from an independent
contractor to an employee.
¶ 39 Nor is there any evidence to suggest that transporting students is an
ultrahazardous or inherently dangerous activity. Moreover, the statute authorizing
school districts to contract for student transportation expressly indicates that this is
a delegable duty. See N.C. Gen. Stat. § 115C-253. As this Court has previously
recognized, “the administration of the public schools of the state is best left to the
legislative and executive branches of government.” Leandro v. State, 346 N.C. 336,
357, 488 S.E.2d 249, 261 (1997). “[T]he courts of the state must grant every
reasonable deference to the legislative and executive branches when considering
whether they have established and are administering a system that provides the
children of the various school districts of the state a sound basic education.” Id.
Therefore, while we agree that the Board should exercise the utmost standard of care
while making decisions regarding its students, we are obliged to find the Board could
properly delegate any duty owed to Lauren to an independent contractor such as
YVEDDI under our current law. See In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d
30, 37 (1989) (“Where a panel of the Court of Appeals has decided the same issue, OSBORNE V. YADKIN VALLEY ECON. DEV. DIST. INC.
albeit in a different case, a subsequent panel of the same court is bound by that
precedent, unless it has been overturned by a higher court.” (citations omitted)).
¶ 40 Although no North Carolina court has considered whether the duty to
transport students safely is delegable on these facts, other jurisdictions have
expressly declined to extend tort liability in circumstances where the harm occurred
when the student was not in the school’s physical custody. In Chainani v. Bd. of
Educ. of City of New York, 663 N.E.2d 283, 286 (N.Y. 1995), New York’s high court
rejected the argument that safe transportation of students was non-delegable and
held that “the schools had contracted-out responsibility for transportation, and
therefore cannot be held liable on a theory that the children were in their physical
custody at the time of injury.” The court noted that the legislature authorized schools
to contract with third parties for student transportation; thus, the school districts
were “relying reasonably on the company to act responsibly in protecting the safety
of the children it was charged to transport.” Id. Similarly, in Dixon v. Whitfield, 654
So. 2d 1230, 1232 (Fla. Dist. Ct. App. 1995), the court observed that, given the
statutes and regulations authorizing contractors to transport public school students,
“the parties cite no controlling Florida authority, and we could find none in our own
research, for the proposition that the safe transportation of public school students is
a nondelegable duty.” Id. The same is true in North Carolina. Absent guidance from
our Supreme Court or our legislature, we must hold the Board is not an “insurer of OSBORNE V. YADKIN VALLEY ECON. DEV. DIST. INC.
student safety,” see Payne v. N. Carolina Dep’t of Human Res., 95 N.C. App. 309, 313,
382 S.E.2d 449, 451 (1989), but delegated any duty it owed to Lauren pursuant to the
statutory authority found in N.C. Gen. Stat. § 115C-253. In our discretion, we
address the foreseeability of Lauren’s injury.
¶ 41 While we are bound by our precedent and affirm the order of the trial court,
we recognize there is no genuine dispute as to the foreseeability of Lauren’s injury.
Here, Lauren was a twenty-year-old special-needs student with an IQ of forty-one
and severe diabetes. Testimony from Lauren’s teacher, nurse, assistant, principal,
yellow bus driver, and the superintendent demonstrates Lauren was vulnerable,
immature, and susceptible to exploitation. Lauren had the functional capacity of a
first-grade student and lacked the capability to comprehend and consent to the sexual
acts committed against her. In addition to her mental disabilities, Lauren’s diabetes
and related medical care required constant adult supervision during the school day.
On several occasions, while enrolled in SCS, Lauren had to go to the hospital directly
from her school for medical care. It is undisputed that Lauren’s intellectual
disabilities and medical fragility render her highly susceptible to exploitation and
harm without proper monitoring and support.
¶ 42 The Special Education environment is full of specialized customs and practices
designed to provide the particular care, supervision, and protections needed to enable
each individual student access to an appropriate education. Where there is an OSBORNE V. YADKIN VALLEY ECON. DEV. DIST. INC.
existing custom or practice in place utilized to protect a special-needs student, it
stands to reason a harm could be more likely in the absence of such a custom. See
Briggs v. Morgan, 70 N.C. App. 57, 61, 318 S.E.2d 878, 881-82 (1984) (A customary
practice “is normally relevant and admissible as an indication of what the community
regards as proper” to address the risks of a particular individual. (citation omitted)).
Because the Board’s customary practice had been to provide transportation for
Lauren on an exceptional students school bus staffed with a safety monitor, we
emphasize that Lauren’s injury was one that could have been prevented.
¶ 43 Absent guidance by our legislature, we are obliged to hold the trial court did
not err in granting summary judgment. To hold otherwise would be to ignore the
independent contractor rule, that states when an employer properly delegates a duty
pursuant to a statutory authority, its duty ceases. Because we are bound by our
precedent, we hold the trial court did not err in granting summary judgment.
2. Title IX.
¶ 44 Plaintiffs further contend that the trial court erred in granting the Board’s
motion for summary judgment on the Board’s alleged violation of Title IX. We
disagree.
¶ 45 As discussed supra, this Court reviews an appeal from a summary judgment
order de novo. Forbis, 361 N.C. at 524, 649 S.E.2d at 385. Pursuant to Rule 56 of our
rules of civil procedure, summary judgment is appropriate where there is no genuine OSBORNE V. YADKIN VALLEY ECON. DEV. DIST. INC.
dispute of material fact. N.C. Gen. Stat. § 1A-1, Rule 56. Generally, the moving party
“has the burden of demonstrating a lack of triable issues.” Monzingo, 331 N.C. at
187, 415 S.E.2d at 344. In reviewing a motion for summary judgment, the trial court
must view the evidence in the light most favorable to the nonmoving party. Id.
¶ 46 Title IX prohibits sex-based discrimination in education programs or activities
receiving federal financial assistance. See 20 U.S.C. § 1681 et seq. Sexual harassment
and abuse of a student can constitute discrimination “on the basis of sex” under Title
IX. Franklin v. Gwinnett Cnty. Pub. Sch., 503 U.S. 60, 75, 112 S. Ct. 1028, 1037, 117
L. Ed. 2d 208, 223 (1992). However, an institution such as the Board can be held
liable for a Title IX violation if “an official who at a minimum has authority to address
the alleged discrimination and to institute corrective measures . . . has actual
knowledge of discrimination in the [institution]’s programs and fails adequately to
respond. . . . [It] amount[s] to deliberate indifference to discrimination.” Gebser v.
Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290, 118 S. Ct. 1989, 1999, 141 L. Ed. 2d
277, 292 (1998).
¶ 47 The 11th Circuit Court of Appeals (“11th Circuit”) found that “[t]o survive a
summary judgment motion, a Title IX plaintiff must present evidence from which a
reasonable jury could conclude the Title IX recipient’s deliberate indifference to the
initial discrimination subjected the plaintiff to further discrimination.” Hill v.
Cundiff, 797 F.3d 948, 973 (11th Cir. 2015) (internal quotation marks omitted). “The OSBORNE V. YADKIN VALLEY ECON. DEV. DIST. INC.
deliberate indifference standard is rigorous and hard to meet.” Id. at 975. We find
the 11th Circuit’s reasoning compelling and apply its rationale in this instance.
¶ 48 In this case, Plaintiffs’ Title IX claim fails because no school employee or Board
member had actual knowledge of King’s sexual abuse of Lauren until after he had
been arrested and terminated. The undisputed evidence shows school officials
learned that King had abused Lauren only after the sheriff notified Ms. Powell, who
in turn, contacted the school principal. In the absence of any evidence that a school
official or Board member with authority to remedy alleged discrimination had actual
knowledge of King’s abuse of Lauren, there is no genuine issue of material fact as to
Plaintiffs’ Title IX claim against the Board. Therefore, we affirm the trial court’s
grant of summary judgment in favor of the Board with respect to Plaintiffs’ Title IX
claim.
III. Conclusion
¶ 49 We hold the trial court properly dismissed Plaintiffs’ claims under Section 1983
and granted summary judgment with respect to Plaintiffs’ Title IX claim. Under our
current tort law, and, absent any guidance from our Supreme Court and legislature,
we find the trial court did not err in granting summary judgment in favor of the Board
on the issue of negligence pursuant to the independent contractor rule. Accordingly,
we affirm the order of the trial court.
AFFIRMED. OSBORNE V. YADKIN VALLEY ECON. DEV. DIST. INC.
Judge DIETZ concurs by separate opinion.
Judge ARROWOOD concurs by separate opinion. OSBORNE V. YADKIN VALLEY ECON. DEV. DIST. INC.
DIETZ, J., concurring
No. COA20-485 – Osborne v. Yadkin Valley Econ. Dev. Dist. Inc.
DIETZ, Judge, concurring by separate opinion.
¶ 50 I concur in the majority’s judgment. I write separately to address two issues.
First, I do not agree with the statements in the majority opinion and my concurring
colleague’s opinion that “there is no genuine dispute as to the foreseeability of
Lauren’s injury” and that “the injury in this case was certainly foreseeable.”
¶ 51 I am not prepared to hold that the felony sexual assault of a vulnerable special-
needs student is always foreseeable to school officials as a matter of law. Criminal
acts ordinarily are not foreseeable under tort law principles. Foster v. Winston-Salem
Joint Venture, 303 N.C. 636, 638, 281 S.E.2d 36, 38 (1981). Had this claim reached a
jury, the foreseeability of Lauren’s injury and issues of superseding and intervening
causation would have been core disputed facts to be resolved by the jury. Hairston v.
Alexander Tank & Equip. Co., 310 N.C. 227, 237–38, 311 S.E.2d 559, 567 (1984).
¶ 52 Second, I do not agree with my concurring colleague that there are
“inconsistencies . . . in the protections that are afforded to our most vulnerable
children depending on whether the school system provides the transportation or
contracts with a third party.” The duty of care owed to Lauren and every other school
student is the same whether their transportation is provided by the school itself or OSBORNE V. YADKIN VALLEY ECON. DEV. DIST. INC.
by a contractor who has taken on that duty. Whatever heightened level of protection
the school district owed Lauren because of her special needs, the duty to provide that
same level of protection passed to YVEDDI under the independent contractor rule. OSBORNE V. YADKIN VALLEY ECONOMIC DEVELOPMENT DISTRICT INC.
ARROWOOD, J., concurring
No. COA20-485 – Osborne v. Yadkin Valley Economic Dev. Dist. Inc.
ARROWOOD, Judge, concurring by separate opinion.
¶ 53 I concur in the majority opinion as being necessitated by law but write
separately to express my concerns with the interaction between the statutory scheme
and our caselaw. The statute authorizing delegation of the duty to transport public
school students has effectively permitted boards of education to contract out of the
heightened standard of care that this Court has previously held them to.
¶ 54 With respect to safeguarding public school students, this Court has held that
the party charged with safeguarding our youth owes a duty of care “relative to the
[victim]’s maturity[,]” specifically defining the extent of the duty required by the
“foreseeability of harm to the [victim.]” Nowlin v. Moravian Church in Am., 228 N.C.
App. 307, 311 745 S.E.2d 51, 54 (2013) (holding that camp employees have a duty to
exercise the same standard of care that a person of ordinary prudence, charged with
the duty of supervising campers, would exercise under the same circumstances).
Similarly, this Court held “[t]he care which a school bus driver must exercise toward
a school bus passenger is proportionate to the degree of danger inherent in the
passenger’s youth and inexperience.” Slade v. New Hanover Cty. Bd. of Ed., 10 N.C.
App. 287, 295, 178 S.E.2d 316, 321 (1971). Both standards reinforce the higher OSBORNE V. YADKIN VALLEY ECONOMIC DEVELOPMENT DISTRICT INC.
standard of care owed by the governmental authority to public school students under
supervision, especially in situations where a student is more vulnerable.
¶ 55 Although this standard would apply here had the van driver been directly
employed by the school system, the standard does not apply in the case sub judice for
two reasons. First is N.C. Gen. Stat. § 115C-253 (2019), which allows any board of
education to delegate their duty to transport public school students to “any person,
firm or corporation[.]” The second is the well-established principle in our state’s tort
law that generally, “one who employs an independent contractor is not liable for the
independent contractor’s negligence unless the employer retains the right to control
the manner in which the contractor performs his work.” Woodson v. Rowland, 329
N.C. 330, 350, 407 S.E.2d 222, 234 (1991) (citation omitted). There is an exception to
this rule only for certain non-delegable duties, including ultrahazardous or inherently
dangerous activity. Id. In this case, because transporting students to school does not
qualify as an ultrahazardous or inherently dangerous activity, the exception does not
apply.
¶ 56 Taken together, Woodson and N.C. Gen. Stat. § 115C-253 effectively eliminate
the Board of Education’s duty to any public student unfortunate enough to find
themselves in a vehicle operated by an independent contractor. Although this Court
has held the governmental authority to a higher standard of care for bus drivers
employed directly by the school district, the statute relieves them of their duty OSBORNE V. YADKIN VALLEY ECONOMIC DEVELOPMENT DISTRICT INC.
without any other apparent safeguards or higher standards with respect to who may
be entrusted with the duty of transporting and supervising public school students.
Absent further guidance from our General Assembly, it appears the standard of care
owed by the governmental authority in these contexts depends entirely on how the
driver is employed.
¶ 57 As the majority pointedly notes, the injury in this case was certainly
foreseeable. Public school students, particularly vulnerable students like Lauren, are
inherently at greater risk of injury and are accordingly owed a higher standard of
care in these contexts. This duty is originally the Board of Education’s to bear.
¶ 58 Given the interplay between Woodson and N.C. Gen. Stat. § 115C-235, I am
compelled to concur in the result, but I write to point out the inconsistencies that this
result creates in the protections that are afforded to our most vulnerable children
depending on whether the school system provides the transportation or contracts
with a third party. While I question whether this was the result that was intended
when the statute was enacted, I see no avenue for relief from this conundrum absent
legislative action or our Supreme Court’s revisiting of the Woodson doctrine.