Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Martinez v. Wake County Board of Education

Court of Appeals of North Carolina

March 20, 2018

JAMIE [1] FERNANDEZ MARTINEZ, Administrator of the Estate of MARIA J. FERNANDEZ JIMENEZ, Plaintiff

          Heard in the Court of Appeals 15 November 2017.

         Appeal by defendant from order entered 20 January 2017 by the North Carolina Industrial Commission, I.C. Nos. TA-24791, TA-24792, TA-24793 .

          Smith Moore Leatherwood LLP, by Matthew Nis Leerberg, and Law Offices of James Scott Farrin, by Marie D. Lang, for plaintiffs-appellees.

          Attorney General Joshua H. Stein, by Special Deputy Attorney General Olga E. Vysotskaya de Brito, Assistant Attorney General Alexander G. Walton, and Special Deputy Attorney General Christina S. Hayes, for defendant-appellant.

          Tin Fulton Walker & Owen, PLLC, by Sam McGee, and Maginnis Law, PLLC, by T. Shawn Howard, for North Carolina Advocates for Justice, amicus curiae.

          DAVIS, Judge.

         In this appeal from an action brought under North Carolina's Tort Claims Act, we consider the scope of the Industrial Commission's jurisdiction over negligence claims related to the operation of school buses. The Wake County Board of Education (the "Board") appeals from an order entered by the Commission denying their motion to dismiss various claims arising from the death of Maria J. Fernandez Jimenez, a 14-year-old girl who was struck by an oncoming vehicle while crossing the street to board her school bus.

         In its 20 January 2017 order, the Industrial Commission concluded that it possessed jurisdiction under the Tort Claims Act to hear not only (1) the plaintiffs' claims for negligence on the part of the school bus driver and maintenance personnel but also (2) their claims against various administrators within the Wake County Public School System alleging negligence in the development and design of school bus routes as well as in making various hiring, training, and staffing decisions. Because we conclude that the Industrial Commission lacks jurisdiction over this latter category of claims, we reverse the Commission's 20 January 2017 order and remand for further proceedings.

         Factual and Procedural Background

         On 25 March 2013, Maria lived with her parents and her brother Eduardo in Garner, North Carolina. Their home was located on North Carolina Highway 50, a divided two-lane road with a posted speed limit of 55 miles per hour. Maria and Eduardo both attended Garner Magnet High School, a Wake County public school. The two siblings were transported to and from school each day on a school bus.

         The bus stop for Maria was located across the street from her home and required her to cross Highway 50 prior to boarding the bus. Upon picking up Maria and Eduardo, the school bus would then travel southbound on Highway 50 for about a quarter of a mile before turning around and passing directly in front of their house while traveling northbound.

         On 25 March 2013, Gloria Smith was the school bus driver assigned to Maria's route. That morning, Smith stopped at the designated school bus stop across from Maria's house at approximately 6:32 a.m. Maria began crossing the street as Smith stopped the school bus. Around the same time, a vehicle driving along Highway 50 at a speed of approximately 50 miles per hour failed to stop for the school bus and fatally struck Maria as she was crossing the road.

         Pursuant to N.C. Gen. Stat. § 143-300.1, several of Maria's family members and her estate brought an action under the Tort Claims Act in the Industrial Commission against the Board. In accordance with N.C. Gen. Stat. § 143-297, they filed in conjunction with their complaint affidavits naming various Board employees whose alleged negligent acts formed the basis for their claims against the Board. In addition to Smith, the individuals listed in the affidavits as having allegedly committed negligent acts and omissions contributing to Maria's death included Anthony Tata, Superintendent of the Wake County Public School System ("WCPSS"); Stephen Gainey, Interim Superintendent of WCPSS; Drew Cook, Principal of Garner Magnet High School; Donald Haydon, Jr., Chief Facilities and Operations Officer of WCPSS; Robert E. Snidemiller, Jr., Senior Director of Transportation for WCPSS; and unnamed maintenance personnel employed to maintain WCPSS school buses.

         With regard to Smith, Plaintiffs asserted that she was negligent in (1) failing to report to her supervisor that the assigned bus stop was dangerous and that a safer alternate stop existed; (2) instructing Maria and Eduardo to cross the street prior to her arrival at the bus stop; (3) failing to activate her flashers upon arriving at the bus stop; (4) failing to warn Maria of the oncoming vehicle that struck her; and (5) failing to conduct a prior inspection of the bus she was operating. Plaintiffs further alleged that unnamed maintenance workers were negligent in failing to ensure regular maintenance, inspection, and repair of the bus being operated by Smith, including its warning lights, signs, and safety signals.

         With respect to the WCPSS administrators named in the affidavits, Plaintiffs alleged that they had been negligent regarding (1) the development and design of the bus route and bus stop to which Maria was assigned; (2) the organization and staffing of the WCPSS transportation department; (3) the failure to ensure the proper working order of school buses and their warning systems; (4) the failure to sufficiently instruct and train school bus drivers; (5) the failure to adequately instruct Maria's family members regarding the safest way in which to reach their assigned bus stop; and (6) the failure to ensure a safe means for Maria to board the school bus.[2]

         On 1 May 2015, the Board filed a motion to dismiss Plaintiffs' administrative negligence claims pursuant to Rules 12(b)(1), 12(b)(2), and 12(b)(6) of the North Carolina Rules of Civil Procedure on the ground that "a tort claim cannot be filed in the North Carolina Industrial Commission against individuals who are not the driver, transportation safety assistant, or monitor of a public school bus." The Board did not move to dismiss the negligence claims premised upon the conduct of Smith or the unnamed maintenance personnel. On 18 May 2015, Deputy Commissioner J. Brad Donovan entered an order granting the Board's motion to dismiss, stating in pertinent part as follows:

In the instant case, plaintiffs allege sufficient facts regarding negligence on the part of the bus driver to survive a motion to dismiss these claims. In fact, [the Board] has not moved to dismiss any more than the claims of negligent route planning and design. Accordingly, the ruling of the undersigned allowing [the Board's] Motion to Dismiss is limited to the alleged negligence on the part of members of the school board in the development, design, establishment, implementation, designation and assignment of routes and school bus stops and instruction, training and education of bus drivers and others.

         Plaintiff appealed the deputy commissioner's decision to the Full Commission. On 20 January 2017, the Full Commission issued an order vacating Deputy Commissioner Donovan's order and denying the Board's motion to dismiss. The Board filed a timely notice of appeal to this Court.


         The Board's sole argument on appeal is that the Commission erred in denying its motion to dismiss Plaintiffs' administrative negligence claims. It contends that the Industrial Commission possesses jurisdiction under the Tort Claims Act only for claims arising from the negligence of school bus drivers, bus monitors, transportation safety assistants, and maintenance personnel.

         I. Appellate Jurisdiction

         As an initial matter, we must determine whether this Court possesses jurisdiction over the Board's interlocutory appeal. The Board's appeal is based on the denial of their motions under Rules 12(b)(1) and (2) in which they asserted the lack of both personal jurisdiction and subject matter jurisdiction with respect to the administrative negligence claims. In this appeal, the Rule 12(b)(1) and Rule 12(b)(2) motions raise a common question - that is, whether the Board is subject to suit in the Industrial Commission with regard to Plaintiffs' administrative negligence claims.

          It is well settled that "[a] county or city board of education is a governmental agency, and therefore is not liable in a tort or negligence action except to the extent that it has waived its governmental immunity pursuant to statutory authority." Beatty v. Charlotte-Mecklenburg Bd. of Educ., 99 N.C.App. 753, 755, 394 S.E.2d 242, 244 (1990) (citation omitted), disc. review improvidently allowed, 329 N.C. 691, 406 S.E.2d 579 (1991). "According to well-established North Carolina law, governmental immunity is an immunity from suit rather than a mere defense to liability. For that reason, this Court has held that denial of dispositive motions such as motions to dismiss that are grounded on governmental immunity affect a substantial right and are immediately appealable." Doe v. Charlotte-Mecklenburg Bd. of Educ., 222 N.C.App. 359, 363, 731 S.E.2d 245, 248 (2012) (internal citations, quotation marks, brackets, and ellipsis omitted). Therefore, we possess jurisdiction to hear the Board's appeal.

         II. Jurisdiction of Industrial Commission under N.C. Gen. Stat. § 143-300.1

         In order to analyze the Board's arguments, it is helpful to first review the basic principles surrounding a local school board's potential waiver of its immunity. As noted above, due to their status as governmental entities, local boards of education are immune from tort liability absent a waiver of their governmental immunity. The North Carolina General Assembly has provided for the waiver of their immunity in two ways.

         First, the Tort Claims Act waives the governmental immunity of school boards for certain types of negligence claims specified therein. The relevant portion of the Tort Claims Act dealing with claims arising from the operation of school buses is N.C. ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.