Williams v. Charlotte-Mecklenburg Sch. Bd. of Educ.

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA22-893-2

Filed 20 February 2024

North Carolina Industrial Commission, No. TA-29098

JERMOND WILLIAMS, Plaintiff,

v.

CHARLOTTE-MECKLENBURG SCHOOLS BOARD OF EDUCATION, Defendant.

Appeal by Defendant from order entered 14 July 2022 by the North Carolina

Industrial Commission. Originally heard in the Court of Appeals 11 April 2023.

Petition for rehearing granted 18 December 2023.

Attorney General Joshua H. Stein, by Special Deputy Attorney General Carl

Newman, for Defendant-Appellant.

Jermond Williams, Pro Se Plaintiff-Appellee.

CARPENTER, Judge.

The Charlotte-Mecklenburg Schools Board of Education (the “Board”) appealed

from the North Carolina Industrial Commission’s (the “Commission’s”) denial of the

Board’s motion for summary judgment. On appeal, the Board argued that the

Commission erred by finding waiver of sovereign immunity and denying the Board’s

motion for summary judgment. In a published opinion, we affirmed the Commission’s

denial of summary judgment. After granting the Board’s petition for rehearing and

upon additional review, we agree with the Board. Accordingly, we reverse the

WILLIAMS V. CHARLOTTE-MECKLENBURG SCHS. BD. OF EDUC.

Opinion of the Court

Commission’s denial of summary judgment.

I. Factual & Procedural Background

On 10 March 2020, Governor Roy Cooper issued Executive Order 116 and

declared a state of emergency because of the Covid-19 pandemic. On 14 March 2020,

Governor Cooper issued Executive Order 117, which closed North Carolina schools

and ordered “the North Carolina Department of Public Instruction . . . to implement

measures to provide for the health, nutrition, safety, educational needs and well-being

of children during the school closure period.” Governor Cooper then issued Executive

Order 169, which extended these provisions through 23 October 2020.

On 22 October 2020, Gerald Rand, a bus driver for the Board, drove a public-

school bus for the sole purpose of delivering meals to remote-learning students. That

day, Rand’s school bus collided with Jermond Williams’ (“Plaintiff’s”) parked car in

Charlotte, North Carolina. On 7 January 2021, under North Carolina’s Tort Claims

Act (the “TCA”), Plaintiff filed a property-damage claim before the Commission

against the Board. After discovery, the Board moved for summary judgment based on

sovereign or governmental immunity.1 Specifically, the Board argued that it

maintained immunity because Rand, under the North Carolina Emergency

1 Here, the Board is a county agency. Therefore, the applicable immunity is more precisely

labeled “governmental immunity.” See Irving v. Charlotte-Mecklenburg Bd. of Educ., 368 N.C. 609,

611, 781 S.E.2d 282, 284 (2016). The distinction, though, is immaterial, as “this claim implicates

sovereign immunity because the State is financially responsible for the payment of judgments against

local boards of education for claims brought pursuant to the Tort Claims Act . . . .” See id. at 611, 781

S.E.2d at 284.

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Management Act (the “EMA”), was performing an emergency-management activity

during the incident. The Board argued the EMA explicitly maintains immunity for

such incidents. In other words, the Board acknowledged that the TCA and the EMA

conflict concerning waiver of immunity, but the Board argued that the EMA controls.

A deputy commissioner denied the Board’s motion for summary judgment, and

the Board timely appealed to the full Commission. On 14 July 2022, the full

Commission panel agreed that the EMA conflicts with the TCA concerning waiver of

sovereign immunity for school-bus claims. Nevertheless, the full Commission denied

the Board’s request for a full-panel review because the Board did not meet “its burden

of showing that it would be deprived of a substantial right.” On 15 August 2022, the

Board timely appealed to this Court.

On 17 October 2023, we issued an opinion, Williams v. Charlotte-Mecklenburg

Schools Board of Education, ___ N.C. App. ___, 893 S.E.2d 885, 888–90 (2023),

affirming the Commission’s denial of summary judgment because a material question

of fact remained. On 21 November 2023, the Board filed a petition for rehearing,

arguing that we should reconsider our holding. On 18 December 2023, we granted the

Board’s petition for rehearing.

II. Jurisdiction

As an initial matter, we must consider whether this Court has jurisdiction over

an interlocutory order from the Commission. Under section 143-293, we conclude

that we do. See N.C. Gen. Stat. § 143-293 (2021); Cedarbrook Residential Ctr., Inc. v.

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Opinion of the Court

N.C. Dep’t of Health & Hum. Servs., 383 N.C. 31, 44, 881 S.E.2d 558, 568–69 (2022)

(acknowledging appellate jurisdiction of an interlocutory appeal from the

Commission’s denial of a motion to dismiss a TCA claim because the appeal involved

a substantial right). As we typically lack jurisdiction to address interlocutory appeals

from the Commission, we will detail why we have jurisdiction over this case.

Appeals from the Commission are made “under the same terms and conditions

as govern ordinary appeals in civil actions.” N.C. Gen. Stat. § 143-293. Therefore,

our analysis begins with the premise that, as in ordinary civil appeals, there generally

is “no right of immediate appeal from interlocutory orders and judgments.” Goldston

v. Am. Motors Corp., 326 N.C. 723, 725, 392 S.E.2d 735, 736 (1990). Similarly, this

Court lacks jurisdiction over interlocutory appeals from the Commission. See N.C.

Gen. Stat. § 7A-29 (2021); Vaughn v. N.C. Dep’t of Hum. Res., 37 N.C. App. 86, 89,

245 S.E.2d 892, 894 (1978) (citing N.C. Gen. Stat. § 7A-29) (“No appeal lies from an

interlocutory order of the Industrial Commission.”).

There is an exception to this rule, however, when an interlocutory appeal

affects a “substantial right.” Sharpe v. Worland, 351 N.C. 159, 161–62, 522 S.E.2d

577, 579 (1999) (stating that North Carolina’s appellate courts have jurisdiction over

interlocutory appeals that affect a substantial right). A “[d]enial of a summary

judgment motion is interlocutory and ordinarily cannot be immediately appealed.”

Craig v. New Hanover Cnty. Bd. of Educ., 363 N.C. 334, 337, 678 S.E.2d 351, 354

(2009). But “the denial of summary judgment on grounds of sovereign immunity is

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immediately appealable, though interlocutory, because it represents a substantial

right . . . .” Id. at 338, 678 S.E.2d at 354.

Here, this case involves a TCA claim, and the Board appeals from the denial of

summary judgment based on sovereign immunity. Because “the denial of summary

judgment on grounds of sovereign immunity” affects a “substantial right,” this Court

has jurisdiction. See id. at 338, 678 S.E.2d at 354; N.C. Gen. Stat. § 143-293;

Cedarbrook Residential, 383 N.C. at 44, 881 S.E.2d at 568–69. Thus, despite our

general rule against hearing interlocutory appeals, this Court has jurisdiction in this

case under section 143-293.

III. Issue

The issue is whether the Commission erred in denying the Board’s motion for

summary judgment.

IV. Standard of Review

We review summary judgment denials de novo. In re Will of Jones, 362 N.C.

569, 573, 669 S.E.2d 572, 576 (2008). Under a de novo review, this Court “‘considers

the matter anew and freely substitutes its own judgment’ for that of the lower

tribunal.” State v. Williams, 362 N.C. 628, 632–33, 669 S.E.2d 290, 294 (2008)

(quoting In re Greens of Pine Glen, Ltd. P’ship, 356 N.C. 642, 647, 576 S.E.2d 316,

319 (2003)).

V. Analysis

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The Board argues that the Commission erred in finding waiver of sovereign

immunity and denying the Board’s motion for summary judgment. After careful

review, we agree.

Summary judgment is appropriate when “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.

Gen. Stat. § 1A-1, Rule 56(c) (2021). Concerning summary judgment, courts “must

view the presented evidence in a light most favorable to the nonmoving party.” Dalton

v. Camp, 353 N.C. 647, 651, 548 S.E.2d 704, 707 (2001). Indeed, “[s]ince this rule

provides a somewhat drastic remedy, it must be used with due regard to its purposes

and a cautious observance of its requirements in order that no person shall be

deprived of a trial on a genuine disputed factual issue.” Kessing v. Nat’l Mortg. Corp.,

278 N.C. 523, 534, 180 S.E.2d 823, 830 (1971).

Generally, “[u]nder the doctrine of sovereign immunity, the State is immune

from suit absent waiver of immunity.” Meyer v. Walls, 347 N.C. 97, 104, 489 S.E.2d

880, 884 (1997) (citing Gammons v. N.C. Dep’t of Hum. Res., 344 N.C. 51, 54, 472

S.E.2d 722, 723 (1996)). “The State and its governmental units cannot be deprived of

the sovereign attributes of immunity except by a plain, unmistakable mandate of the

[General Assembly].” Orange Cnty. v. Heath, 282 N.C. 292, 296, 192 S.E.2d 308, 310

(1972). Further, “statutes waiving this immunity, being in derogation of the

sovereign right to immunity, must be strictly construed.” Guthrie v. N.C. State Ports

Auth., 307 N.C. 522, 537–38, 299 S.E.2d 618, 627 (1983); see also Irving v. Charlotte-

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Mecklenburg Bd. of Educ., 368 N.C. 609, 610–11, 781 S.E.2d 282, 283–84 (2016)

(holding that, although the TCA applies to school buses, activity buses are “not

incorporated into the waiver of immunity contemplated by the [TCA]”).

The TCA “provides a limited waiver of immunity and authorizes recovery

against the State for negligent acts of its ‘officer[s], employee[s], involuntary

servant[s] or agent[s].’” White v. Trew, 366 N.C. 360, 363, 736 S.E.2d 166, 168 (2013)

(quoting N.C. Gen. Stat. § 143-291(a)). Specifically, the State has waived immunity

for claims that are the “result of any alleged negligent act or omission of the driver”

of a public-school bus. N.C. Gen. Stat. § 143-300.1(a) (2021).

Under the EMA, however, “[n]either the State nor any political subdivision

thereof . . . shall be liable for the death of or injury to persons, or for damage to

property as a result of any [emergency-management] activity.” N.C. Gen. Stat. §

166A-19.60(a) (2021). “Emergency management” includes “[t]hose measures taken

by the populace and governments at federal, State, and local levels to minimize the

adverse effects of any type of emergency, which includes the never-ending

preparedness cycle of planning, prevention, mitigation, warning, movement, shelter,

emergency assistance, and recovery.” Id. § 166A-19.3(8). School buses may be used

for “emergency management” purposes. N.C. Gen. Stat. § 115C-242(6) (2021).

Here, Rand, as a state employee during a state of emergency, drove a public-

school bus to deliver food to students during the Covid-19 pandemic. During his

delivery route, Rand collided with Plaintiff’s parked vehicle, and under the TCA,

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Plaintiff sued the Board, the owner of the school bus. These are the material facts,

and the parties do not dispute them. Therefore, either Plaintiff or the Board is

entitled to judgment as a matter of law.2 See N.C. Gen. Stat. § 1A-1, Rule 56(c).

School buses may be used for “emergency management” purposes, and

delivering meals to remote students during the pandemic was such a purpose because

doing so “minimize[d] the adverse effects” of the emergency by providing food to

students who might otherwise go hungry. See N.C. Gen. Stat. § 166A-19.3(8).

The question now before us is whether the Board is immune to suits stemming

from Rand’s alleged negligence during the emergency-management activity. We start

with the premise that, generally, the Board is immune. See Meyer, 347 N.C. at 104,

489 S.E.2d at 884. And we acknowledge that the TCA clearly waived immunity for

school-bus accidents. See N.C. Gen. Stat. § 143-300.1(a). That clarity, however, faded

with the passage of the EMA. See N.C. Gen. Stat. § 166A-19.60(a) (conflicting with

the TCA by stating that “[n]either the State nor any political subdivision thereof . . .

2 In our initial opinion, we affirmed the Commission’s denial of summary judgment because a

material question of fact remained: whether the “bus” driven by Rand was actually a “school bus.” See

Williams, ___ N.C. App. at ___, 893 S.E.2d at 888–89. Upon further review, we conclude that “there

is no genuine issue as to” whether Rand’s bus was a school bus. See N.C. Gen. Stat. § 1A-1, Rule 56(c).

Any dispute over the label of the bus is immaterial because if the bus was something other than a

school bus, like an activity bus, the Commission lacked jurisdiction to hear this case. See Irving, 368

N.C. at 610–11, 781 S.E.2d at 283–84. Therefore, either the Commission had jurisdiction, and the

Board was immune to suit, see Heath, 282 N.C. at 296, 192 S.E.2d at 310; N.C. Gen. Stat. § 166A-

19.60(a), or the Commission lacked jurisdiction, see Irving, 368 N.C. at 610–11, 781 S.E.2d at 283–84.

Either way, summary judgment was appropriate. See N.C. Gen. Stat. § 1A-1, Rule 56(c).

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shall be liable for the death of or injury to persons, or for damage to property as a

result of any [emergency-management] activity”).

The TCA waived sovereign immunity, see Heath, 282 N.C. at 296, 192 S.E.2d

at 310, but the EMA created a caveat concerning emergency-management activity,

see N.C. Gen. Stat. § 166A-19.60(a). In other words, school boards may be sued in

tort concerning school-bus accidents, generally, but school boards may not be sued

concerning school-bus accidents if the bus is being used for an emergency-

management purpose at the time of the accident. See Heath, 282 N.C. at 296, 192

S.E.2d at 310; Guthrie, 307 N.C. at 537–38, 299 S.E.2d at 627; N.C. Gen. Stat. § 166A-

19.60(a). We so hold because waiver of sovereign immunity requires an

“unmistakable mandate,” and the EMA erases such a mandate in cases like this. See

Heath, 282 N.C. at 296, 192 S.E.2d at 310; Guthrie, 307 N.C. at 537–38, 299 S.E.2d

at 627; N.C. Gen. Stat. § 166A-19.60(a).

Therefore, the Commission erred by denying the Board’s motion for summary

judgment because the Board is immune from suit in this case. See Heath, 282 N.C.

at 296, 192 S.E.2d at 310; Guthrie, 307 N.C. at 537–38, 299 S.E.2d at 627; N.C. Gen.

Stat. § 166A-19.60(a).

VI. Conclusion

We hold the Commission erred in denying the Board’s motion for summary

judgment because the Board is immune from suit from school-bus accidents when the

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bus is used for emergency-management purposes. See N.C. Gen. Stat. § 166A-

19.60(a). Accordingly, we reverse.

REVERSED.

Judges ZACHARY and MURPHY concur.

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