Opinion
No. COA11–1538.
2012-07-17
Kendra Mae JOHNSON, Plaintiff v. AVERY COUNTY BOARD OF EDUCATION; Avery County Sheriff Kevin Frye, in his official capacity; The Ohio Casualty Insurance Company, as surety for Avery County Sheriff's Department, Defendant.
Todd, Vanderbloemen & Brady, PA, by Charles A. Brady, III, and W. Bryan White for Plaintiff–Appellee. Campbell Shatley, PLLC, by K. Dean Shatley, II for Defendant–Appellant.
Appeal by defendant from order entered 26 September 2011 by Judge C. Philip Ginn in Avery County Superior Court. Heard in the Court of Appeals 25 April 2012. Todd, Vanderbloemen & Brady, PA, by Charles A. Brady, III, and W. Bryan White for Plaintiff–Appellee. Campbell Shatley, PLLC, by K. Dean Shatley, II for Defendant–Appellant.
ERVIN, Judge.
Defendant Avery County Board of Education appeals from an order denying its motion for summary judgment. On appeal, the Board contends that it is entitled to the benefit of governmental immunity in this case and that the trial court erred by reaching a contrary conclusion. After careful consideration of the Board's challenge to the trial court's judgment in light of the record and the applicable law, we conclude that the trial court's judgment should be reversed and that this case should be remanded to the Avery County Superior Court for the entry of summary judgment in favor of the Board and for other proceedings not inconsistent with this opinion.
I. Factual Background
According to the allegations set out in Plaintiff's complaint, Avery County High School Resource Officer Michael Darcy sexually abused Plaintiff Kendra Mae Johnson, a minor who was a student at the school, during the 2006–2007 academic year. On 30 November 2010, Plaintiff filed a complaint against the Board; Defendant Kevin Frye, in his capacity as Sheriff of Avery County; and Defendant Ohio Casualty Insurance Company, which serves as surety for Sheriff Frye, asserting various negligence-based claims.
On 8 June 2011, the Board filed a motion seeking summary judgment in its favor on governmental immunity grounds. At the 1 August 2011 civil session of Avery County Superior Court, the Board's motion came on for hearing before the trial court. On 26 September 2011, the trial court entered an order denying the Board's motion. Defendant noted an appeal to this Court from the trial court's order.
II. Legal Analysis
A. Appealability
As a general proposition, an order denying “a summary judgment motion is interlocutory and ordinarily cannot be immediately appealed.” Craig ex rel. Craig v. New Hanover Cty. Bd. of Educ., 363 N.C. 334, 337, 678 S.E.2d 351, 354 (2009) (citation and quotation omitted). However, since governmental immunity “shields a defendant entirely from having to answer for its conduct at all in a civil suit for damages,” Craig, 363 N.C. at 337, 678 S.E.2d at 354 (citing Mitchell v. Forsyth, 472 U.S. 511, 525, 105 S.Ct. 2806, 2814–15, 86 L.Ed.2d 411, 424 (1985)), “the denial of summary judgment on grounds of [governmental] immunity is immediately appealable, though interlocutory, because ... ‘[t]he entitlement is an immunity from suit rather than a mere defense to liability” and “is effectively lost if a case is erroneously permitted to go to trial.’ “ Craig, 363 N.C. at 338, 378 S.E.2d at 354 (quoting Mitchell, 472 U.S. at 526, 105 S.Ct. at 2815, 86 L.Ed.2d at 425). As a result, the trial court's denial of the Board's summary judgment motion is subject to immediate appellate review.
B. Standard of Review
According to well-established North Carolina law, summary judgment is only 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. R. Civ. P. 56(c). “In reviewing the trial court's grant of summary judgment this court must examine the evidence in the light most favorable to the non-movant[.]” Delk v.. Hill, 89 N.C.App. 83, 84–85, 365 S.E.2d 218, 219 (citation omitted), disc. review denied, 322 N.C. 605, 370 S.E.2d 244 (1988). This Court reviews orders granting or denying summary judgment motions de novo. Builders Mut. Ins. Co. v. North Main Constr., Ltd., 361 N.C. 85, 88, 637 S.E.2d 528, 530 (2006) (citation omitted). “Under a de novo review, the court considers the matter anew and freely substitutes its own judgment for that of the lower tribunal.” Craig, 363 N.C. at 337, 678 S .E.2d at 354.
C. Governmental Immunity
In challenging the trial court's decision, the Board contends that the trial court erroneously concluded that it was not entitled to the benefit of governmental immunity on the grounds that Defendant's participation in the North Carolina School Boards Trust did not, contrary to Plaintiff's contention, constitute a waiver of governmental immunity. Defendant's argument has merit.
“School boards enjoy the right of governmental immunity absent waiver or a statute to the contrary.” Willett v. Chatham County Bd. of Educ., 176 N.C.App. 268, 269, 625 S.E.2d 900, 901 (2006) (citing Smith v. Hefner, 235 N.C. 1, 6, 68 S.E.2d 783, 787 (1952) and Lindler v. Duplin County Bd. of Educ., 108 N.C.App. 757, 761, 425 S.E.2d 465, 468,disc. review denied, 333 N.C. 791, 431 S.E.2d 25 (1993)). In attempting to persuade us to uphold the trial court's order, Plaintiff argues that Defendant waived its right to governmental immunity by participating in the North Carolina School Boards Trust. However, this Court has previously held that participation in the North Carolina School Boards Trust does not operate to waive a local school board's right to assert governmental immunity. See e.g., Willett, 176 N.C.App. at 269, 625 S.E.2d at 902 (rejecting the argument that participation in the North Carolina School Boards Trust constitutes a waiver of immunity); Ripellino v. North Carolina School Boards Ass'n, Inc., 158 N.C.App. 423, 428, 581 S.E.2d 88, 92 (2003) (holding that participation in the North Carolina School Boards Trust does not qualify as a purchase of insurance of the type needed to waive governmental immunity), cert. denied,358 N.C. 156, 592 S.E.2d 694 (2004); and Lucas v. Swain County Bd. of Educ., 154 N.C.App. 357, 363, 573 S.E.2d 538, 541 (2002) (holding that participation in the North Carolina School Boards Trust did not result in a waiver of governmental immunity). Plaintiff has not cited any authority holding or otherwise establishing that these decisions should not be treated as controlling in this case. In re Appeal from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) (holding that, “[w]here a panel of the Court of Appeals has decided the same issue, 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). As a result, given that participation in the North Carolina School Boards Trust did not operate to waive the Board's governmental immunity and that Plaintiff has not established that Defendant waived its right to assert governmental immunity by any other means, we hold that the Board is immune from liability to Plaintiff; that the trial court erred by denying the Board's summary judgment motion; and that the trial court's order should be, and hereby is reversed, and that this case should be, and hereby is, remanded to the Avery County Superior Court for the entry of summary judgment in favor of the Board and for further proceedings not inconsistent with this opinion.
Although Plaintiff also argues that the Board is not entitled to rely on the public duty doctrine, which operates to “limit tort liability [ ] even when the [government] has waived sovereign immunity,” Myers v. McGrady, 360 N.C. 460, 465, 628 S.E.2d 761, 766 (2006), we need not address Plaintiff's contention with respect to the public duty doctrine given that the Board is entitled to the benefit of governmental immunity.
REVERSED AND REMANDED. Judges Robert C. HUNTER and STROUD concur.
Report per Rule 30(e).