Lindler v. Duplin County Bd. of Educ. , 108 N.C. App. 757 ( 1993 )

425 S.E.2d 465 (1993) 108 N.C. App. 757

Frances LINDLER, Plaintiff,
v.
DUPLIN COUNTY BOARD OF EDUCATION.

No. 924SC127.

Court of Appeals of North Carolina.

February 2, 1993.

Ferguson, Stein, Watt, Wallas, Adkins & Gresham, P.A., by John Gresham and S. Luke Largess, Charlotte, for plaintiff-appellant.

Richard Schwartz & Associates, by Richard A. Schwartz and Laura E. Crumpler, Raleigh, for defendant-appellee.

EAGLES, Judge.

Plaintiff argues that the trial court erred by granting the defendant's Rule 12(b)(6) motion. Specifically, plaintiff argues that the defendant, Duplin County Board of Education (Board), waived its sovereign immunity pursuant to G.S. § 115C-42 by purchasing liability insurance which allegedly covered the plaintiff's injuries. The defendant, on the other hand, argues that G.S. § 115C-524(b) and Plemmons v. City of Gastonia, 62 N.C.App. 470, 302 S.E.2d 905, disc. review denied, 309 N.C. 322, 307 S.E.2d 165, 166 (1983) prevent liability from attaching to the Board because the school was not being used for a school purpose at the time of the plaintiff's accident. We agree with the defendant.

G.S. § 115C-42 provides, in pertinent part:

Any local board of education, by securing liability insurance as hereinafter provided, is hereby authorized and empowered to waive its governmental immunity from liability for damage by reason of death or injury to person or property caused by the negligence or tort of any agent or employee of such board of education when acting within the scope of his authority or within the course of his employment. Such immunity shall be deemed to have been waived by the act of obtaining such insurance, but such immunity is waived only to the extent that said board of education is indemnified by insurance for such negligence or tort.

G.S. 115C-524(b) provides in pertinent part:

Notwithstanding the provisions of G.S. 115C-263 and 115C-264, local boards of education shall have the authority to adopt rules and regulations by which school buildings, including cafeterias and lunchrooms, may be used for other than school purposes so long as such use is consistent with the proper preservation and care of the public school property. No liability shall attach to any board of education, individually or collectively, for personal injury suffered by reason of the use of such school property.

(Emphasis ours.)

In Plemmons, a minor allegedly sustained serious and permanent brain damage as the result of a fall from gymnasium bleachers to the floor. The defendant Board of Education argued that because of the express language of G.S. § 115C-524(b) and the fact that the gymnasium was leased to the City of Gastonia at the time of the accident, the Board was immune from liability. The plaintiff, on the other hand, argued "as a policy matter, that G.S. § 115C-524 should be construed to include an active negligence caveat and that ... the statute's operation [should be limited] to circumstances in which liability is sought to be imposed on a Board of Education solely by reason of its status as landlord." Id. at 473, 302 S.E.2d at 907. Our court held that "the clear, specific mandate of the statute categorically bars liability[.]" Id. at 472, 302 S.E.2d at 906. The Court observed that although the construction proffered by the plaintiff "would be the more humane, we simply cannot read into a statute a requirement that is not there. G.S. § 115C-524 provides no chink in its armor of immunity, even for the sword of active negligence. To accept plaintiffs' argument would render the statute superfluous." Id. at 473, 302 S.E.2d at 907.

The plaintiff argues that Plemmons does not control the instant case because (1) the court did not directly address the effect of G.S. § 115C-42 on G.S. § 115C-524(b) and (2) that the language regarding active negligence was mere obiter dicta. We disagree and find that we are bound by Plemmons. But even assuming, arguendo, that the Plemmons decision does not control the instant case, we nevertheless believe that the Plemmons Court's analysis is equally valid here. The clear intent of the legislature was set out in the plain language of G.S. § 115C-524(b) which explicitly precludes liability from attaching to schools when the school facilities are being used for non-school purposes.

In any event, we also note that other well established principles of statutory construction support our holding. First, "[i]t is always presumed that the legislature acted with care and deliberation and with full knowledge of prior and existing law." State v. Benton, 276 N.C. 641, 658, 174 S.E.2d 793, 804 (1970) (citations omitted). The General Assembly originally adopted the statutes now codified as G.S. § 115C-42 (1955 N.C.Sess.Laws c. 1256) and G.S. § 115C-524(b) (1955 N.C.Sess.Laws c. 1372, art. 15, s. 9) in 1955. However, it was not until 1963 that our legislature enacted the portion of G.S. § 115C-524(b) which provides: "No liability shall attach to any board of education, individually or collectively, for personal injury suffered by reason of the use of such school property." 1963 N.C.Sess.Laws c. 253. If in 1963 the General Assembly had intended for sovereign immunity to be waived to the extent of liability insurance for personal injury resulting from non-school use of school property, they would not have added to G.S. § 115A-524(b) the unambiguous language quoted above. To have done so would have been unnecessary in light of the well established rule that schools enjoy the right of sovereign immunity absent a statute to the contrary. Smith v. Hefner, 235 N.C. 1, 68 S.E.2d 783 (1952) ("a subordinate division of the state, or agency exercising statutory governmental functions like a city administrative school unit, may be sued only when and as authorized by statute"). Obviously, the General Assembly intended to prevent liability from attaching to boards of education under these specific circumstances.

We also note that the Plemmons Court's interpretation of G.S. § 115C-524(b), whether obiter dicta or not, was published in the Plemmons opinion in 1983. However, in the ensuing four biennial sessions since 1983 the General Assembly has not seen fit to change the pertinent language of G.S. § 115C-524(b). This argument is bolstered by the General Assembly's most recent amendment of G.S. § 115C-524(b). While the 1992 amendment did modify that portion of G.S. § 115C-524(b) dealing with non-school use of school property, it retained unchanged the portion of the statute precluding liability to boards of education because of personal injury arising from non-school use. G.S. § 115C-524(b) (1992).

Finally, our court, interpreting G.S. § 115C-42, has said: "`Waiver of sovereign immunity may not be lightly inferred and State statutes waiving this immunity, being in derogation of the right to sovereign immunity, must be strictly construed.'" Overcash v. Statesville City Bd. of Educ., 83 N.C.App. 21, 25, 348 S.E.2d 524, 527 (1986) (citations omitted). These principles of statutory construction when applied to the case sub judice impel our holding that the Board is immune from liability here.

As in Plemmons, we are "not unmindful that this interpretation is likely to produce harsh results in many cases[.]" Id. 62 N.C.App. at 472, 302 S.E.2d at 906. Even so, the General Assembly's clear intent as evidenced by the plain language of G.S. § 115C-524(b) mandates this result.

Affirmed.

WYNN and ORR, JJ., concur.