Burns v. Union Cnty. Bd. of Educ. ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute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
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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
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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
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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
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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
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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
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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
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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
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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.
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REVERSED AND REMANDED.
Judges CALABRIA and ROBERT N. HUNTER, JR. concur.
Report per Rule 30(e).