Summary
In Newgent, an elementary school student was struck and killed by an automobile while crossing a busy highway in order to reach his bus stop.
Summary of this case from Martinez v. Wake Cnty. Bd. of Educ.Opinion
No. 9310IC610
Filed 19 April 1994
State § 63 (NCI4th) — death of a child crossing road to catch bus — allegedly negligent acts of bus driver — driver not operating bus in course of employment when acts occurred In an action to recover for the death of a child who was struck and killed when attempting to cross the highway in order to await the arrival of his school bus, the Industrial Commission properly found that it did not have jurisdiction over the action because the bus driver was not operating the vehicle in the course of her employment at the time of the alleged negligent acts, which included not reporting to the principal that the stop had limited visibility and that she could stop the bus and pick up students on the other side of the highway, and not informing the principal or the child's parents that the child had previously crossed the highway by himself. N.C.G.S. § 143-300.1.
Am Jur 2d, Municipal, County, School, and State Tort Liability §§ 649-651.
Appeal by plaintiff from order of the Industrial Commission issued 12 April 1993. Heard in the Court of Appeals 7 March 1994.
Long, Parker, Hunt, Payne Warren, P.A., by Ronald K. Payne, for plaintiff-appellant.
Attorney General Michael F. Easley, by Assistant Attorney General Richard L. Griffin, for defendant-appellee.
Judge ORR dissenting.
On 10 December 1990, at approximately 6:50 a.m. near the intersection of N.C. Highway 63 and Frisbee Road in Buncombe County, Joseph Levi Newgent was struck by an automobile and killed when attempting to cross Highway 63 in order to await the arrival of his school bus.
On 21 November 1991, plaintiff filed a Tort Claim Affidavit pursuant to N.C. Gen. Stats. §§ 143-297 and 143-300.1. The affidavit alleged that Jean Freeman, the driver of the school bus which Joseph rode to school and was planning to board when he crossed the highway and was struck by another vehicle, was negligent by: not reporting to the principal that the bus stop that Joseph used every morning was in an area with limited visibility, not informing the principal that she could stop the bus in the mornings and pick up Joseph on the west side of the road so that he would not need to cross the highway, and by not informing the principal and Joseph's parents that he had previously crossed the highway by himself prior to being struck and killed by an automobile on 10 December 1990.
On 12 December 1991, defendant filed a motion to dismiss. Following a hearing, Commissioner J. Randolph Ward entered an Order dismissing the claim, concluding that, at the time of the negligent acts complained of, Jean Freeman was not operating the school bus in the course of her employment and therefore the Industrial Commission had no jurisdiction. Plaintiff then appealed to the Full Commission. From the Commission's Order confirming the order of dismissal, plaintiff now appeals.
Plaintiff assigns as error the Industrial Commission's finding and concluding that it lacked jurisdiction over this action and the dismissal of his claim. After examining the record before us, we must conclude that this assignment is without merit.
This action is governed by G.S. § 143-300.1, which provides in pertinent part:
The North Carolina Industrial Commission shall have jurisdiction to hear and determine tort claims against any county board of education . . . which claims arise as a result of any alleged mechanical defects or other defects which may affect the safe operation of a public school bus . . . resulting from an alleged negligent act of any maintenance personnel or as a result of any alleged negligent act or omission of the driver of a public school bus . . . and which driver was at the time of the alleged negligent act or omission operating a public school bus . . . in the course of his employment by or training for that administrative unit or board. (Emphasis added.)
The Commission found and concluded that the school bus driver "was not operating a public school bus in the course of her employment" at the time of the alleged negligent acts complained of; therefore, the Commission lacked jurisdiction under the statute.
Since the applicable statute is in derogation of sovereign immunity, it must be strictly construed and its terms strictly adhered to. Etheridge v. Graham, 14 N.C. App. 551, 188 S.E.2d 551 (1972). We can discern no way that defendant's employee could be considered to have been operating the bus at the time of the negligent acts complained of — not reporting to the principal that the stop had limited visibility and that she could stop the bus and pick up students on the west side of the highway, and not informing the principal or Joseph's parents that Joseph had previously crossed the highway by himself. In order to be held liable under this statute, the negligent acts or omissions complained of must have occurred while the employee was operating the bus in the course of her employment.
There is competent evidence to support the Commission's finding that the bus driver was not operating the vehicle in the course of her employment at the time of the alleged negligent acts; therefore, the findings are conclusive on appeal. See G.S. § 143-293; Mitchell v. Board of Education, 1 N.C. App. 373, 161 S.E.2d 645 (1968). For the reasons stated above, the order concluding that the Commission lacked jurisdiction over the claim is hereby
Affirmed.
Judge ORR dissents in a separate opinion.
Judge WYNN concurs.