Appendix — North Carolina School Board Association, Inc. v. Ripellino (Nos. 06-1399, 06-1511)

App. 1

TABLE OF CONTENTS

Appendix Page

Opinion of

The Supreme Court of North Carolina

Fb, ea TES App. 1

Opinion of

The Court of Appeals of North Carolina

Se II i IIIs. cdc hctinniaienaniannte stint oneten App. 4

Opinion of

The Court of Appeals of North Carolina

NII Se SII seins cindevedsecdebesenencousseousinn App. 42

Order of

The Honorable Knox V. Jenkins, Jr.

Re: Granting Summary Judgment

fk een App. 58

Order of

The Supreme Court of North Carolina

Re: Allowing Trust Defendants’ Petition for

Discretionary Review

I I a al ns pakaaadal App. 60

Order of

The Supreme Court of North Carolina

Re: Allowing Defendant Johnston County Board of

Education’s Petition for Discretionary Review

EE I is SEED eonssdevitecssovecesvennevadegosetsenes App. 63

Order of

The Honorable Knox V. Jenkins, Jr.

Re: Granting Summary Judgment and

Judgment on the Pleadings for Trust Defendants

tiled September $, 2604.....0.00..0..0000.. App. 67

App. i

Order of

The Honorable Knox V. Jenkins, Jr.

Re: Granting Summary Judgment and

Judgment on the Pleadings for Defendant

Johnston County Board of Education

filed September 3, 2004.00... eee App. 71

Order of

The Supreme Court of North Carolina

Re: Denying Plaintiffs’ Petition for

Discretionary Review

Ted Feuruary G, ZOOS ......ccccccseccsvescevesesenesss App. 74

Order of

The Honorable Knox V. Jenkins, Jr.

Re: Granting Summary Judgment Hearing

RG USE Bi, TIN oven ce veandisvesorsis eetcrereccneans App. 76

First Amended Complaint

BOGE SI IE Sierdsishescussinccicnveanensaien App. 79

Answer of Trust Defendants

NE FT a wisiiseirscscsurpsscrtintetg elt App. 103

Answer of Defendant

Johnston County Board of Education

| 8: ee anne me rae App. 117

Supplemental Responses of Defendants the North

Carolina School Boards Association

filed November 12, 2001.00.00... eee App. 132

Plaintiffs’ Notice of Appeal

SOO GEE BD TO ie xsiccnteinicsinesastentedeate App. 137

App. i

Motion for Summary Judgment on the

Pleadings of Defendant

Johnston County Board of Education

I, IID cocccscccescevcsrecssessereseorsosee App.

Motion for Summary Judgment on the

Pleadings of Trust Defendants

ES MEN ccc soscoseceesscovevessiesesvserens App.

Plaintiffs’ Notice of Appeal

I I ones conccseccreescosesvcosecovees App.

Notice of Appeal and Petition for

Discretionary Review of Defendant

Johnston County Board of Education

NS App.

Notice of Appeal and Petition for

Discretionary Review of Trust Defendants

EE BE BID vc crcsevexsccoesesssoorecesveneneses App.

NT ci vcccceserocovserorveonevscerersovseecores App.

NI. TEEW covovccsscovecevessrsssosesessvescvovees App.

seas ivstsetercesssvecscsseesoesececspserece App.

EE, © BOS ee crcvcccecececossesovevessesseeeeees App.

I IEEE © BEG IOEG .. .ccccvcccceseecsssovevevecceeneeees App.

139

142

146

148

196

219

220

222

223

226

App. 1

MICHAEL G._- RIPELLINO, LOUISE A.

RIPELLINO, and NICOLE RIPELLINO v. THE

NORTH CAROLINA SCHOOL BOARDS

ASSOCIATION, INCORPORATED; NORTH

CAROLINA SCHOOL BOARDS TRUST, a division

and/or department of, created and administered by,

THE NORTH CAROLINA SCHOOL BOARDS

ASSOCIATION, INCORPORATED; 1982 NORTH

CAROLINA SCHOOL BOARDS ASSOCIATION

SELF-FUNDED TRUST FUND, a division and/or

department of, created and administered by, THE

NORTH CAROLINA SCHOOL BOARDS

ASSOCIATION, INCORPORATED; 1986 NORTH

CAROLINA SCHOOL BOARDS ASSOCIATION

SELF-FUNDED ERRORS AND

OMISSIONS/GENERAL LIABILITY TRUST FUND,

a division and/or department of, created and

administered by, THE NORTH CAROLINA

SCHOOL BOARDS ASSOCIATION,

INCORPORATED; 1997 NORTH CAROLINA

SCHOOL BOARDS ASSOCIATION SELF-FUNDED

AUTO/INLAND MARINE TRUST FUND, a division

and/or department of, created and administered by,

THE NORTH CAROLINA SCHOOL BOARDS

ASSOCIATION, INCORPORATED; and THE

JOHNSTON COUNTY BOARD OF EDUCATION

No. 180A06

FILED: 26 JANUARY 2007

Appeal pursuant to N.C.G.S. § 7A-30(2) from

the decision of a divided panel of the Court of

Appeals, 176 N.C. App. 627 S.E.2d 225 (2006),

4apPprucsnys &A@*ava

reversing and remanding orders entered 3

App. 2

September 2004 and 9 September 2004 by Judge

Knox V. Jenkins, Jr. in Superior Court, Johnston

County, granting summary judgment and judgment

on the pleadings in favor of all defendants. On 29

June 2006, the Supreme Court allowed defendants’

petitions for discretionary review of additional

issues. Heard in the Supreme Court 8 January

2007. |

Mast, Schulz, Mast, Mills, Johnson & Wells,

P.A., by Bradley N. Schulz, for plaintiff-

appellees.

Yates, McLamb & Weyher, L.L.P., by Barbara

B. Weyher, for defendant-appellants North

Carolina School Boards Association, Inc.,

North Carolina School Boards Trust, 1982

North Carolina School Boards Association

Self-Funded Trust Fund, 1986 North Carolina

School Boards Association Self-Funded Errors

and Omissions/ General Liability Trust Fund,

and 1997 North Carolina School Boards

Association Self-Funded Auto/Inland Marine

Trust Fund.

Cranfill, Sumner & Hartzog, L.L.P., by Rachel

B. Esposito and Meredith T. Black, for

defendant-appellant Johnston County Board

of Education.

Roberts & Stevens, P.A., by Christopher Z.

Campbell and K. Dean Shatley, II, for North

Carolina Council of School Attorneys, amicus

curiae.

App. 3

PER CURIAM.

As to the appeal of right based on the

dissenting opinion, the members of the Court are

equally divided. Therefore, those portions of the

Court of Appeals opinion are affirmed without

precedential value. See, e.g., Barham v. Hawk, 360

N.C. 358, 625 S.E.2d 778 (2006). The Court,

however, unanimously concludes that the Court of

Appeals erred in remanding the case to the trial

court for entry of summary judgment in favor of

plaintiffs on their non-constitutional claims.

Accordingly, we reverse the Court of Appeals and

remand to that Court for remand to the trial court

for further proceedings on _ plaintiffs’ non-

constitutional claims. As to additional issues,

discretionary review was improvidently allowed.

AFFIRMED IN PART; REVERSED IN PART

AND REMANDED; DISCRETIONARY REVIEW

IMPROVIDENTLY ALLOWED IN PART.

Justice HUDSON did not participate in the

consideration or decision of this case.

App. 4

NO. COA04-1681

NORTH CAROLINA COURT OF APPEALS

Filed: 7 March 2006

MICHAEL G._ RIPELLINO, LOUISE A.

RIPELLINO, AND NICOLE RIPELLINO

Plaintiffs-Appellants

We

THE NORTH CAROLINA SCHOOL BOARDS

ASSOCIATION, INCORPORATED; NORTH

CAROLINA SCHOOL BOARDS TRUST, A

DIVISION AND/OR DEPARTMENT OF, CREATED

AND ADMINISTERED BY, THE NORTH

CAROLINA SCHOOL BOARDS ASSOCIATION,

INCORPORATED; 1982 NORTH CAROLINA

SCHOOL BOARDS ASSOCIATION SELF-FUNDED

TRUST FUND, A_ DIVISION AND/OR

DEPARTMENT OF, CREATED AND

ADMINISTERED BY, THE NORTH CAROLINA

SCHOOL BOARDS ASSOCIATION,

INCORPORATED; 1986 NORTH CAROLINA

SCHOOL BOARDS ASSOCIATION SELF-FUNDED

ERRORS AND OMISSIONS/GENERAL LIABILITY

TRUST FUND, A_ DIVISION AND/OR

DEPARTMENT OF, CREATED AND

ADMINISTERED BY, THE NORTH CAROLINA

SCHOOL BOARDS ASSOCIATION,

INCORPORATED; 1997 NORTH CAROLINA

SCHOOL BOARDS ASSOCIATION SELF-FUNDED

AUTO/JINLAND MARINE TRUST FUND, A

App. 5

DIVISION AND/OR DEPARTMENT OF, CREATED

AND ADMINISTERED BY, THE NORTH

CAROLINA SCHOOL BOARDS ASSOCIATION,

INCORPORATED; AND THE JOHNSTON

COUNTY BOARD OF EDUCATION,

Defendants-Appellees

Appeal by plaintiffs from orders entered 3

September 2004 and 8 September 2004 by Judge

Knox V. Jenkins, Jr., in Johnston County Superior

Court. Heard in the Court of Appeals 23 August

2005.

Mast, Schulz, Mast, Mills, Johnson & Wells,

P.A., by Bradley N. Schulz and Don R. Wells, for

plaintiffs-appellants. __

Cranfill, Sumner & Hartzog, L.L.P., by

Stephanie Hutchins Autry and Rachel B. Esposito,

for defendant-appellee Johnston County Board of

Education.

Yates, McLamb & Weyher, L.L.P., by Barbara

B. Weyher, for defendants-appellees Trust

Defendants.

CALABRIA, Judge.

Michael G. Ripellino, Louise A. Ripellino, and

Nicole Ripellino (collectively “plaintiffs”) appeal from

orders granting summary judgment and judgment

on the pleadings to the Johnston County Board of

Education (“the Board”) and to the North Carolina

App. 6

School Boards Association, Inc.; the North Carolina

School Boards Trust; 1982 North Carolina School

Boards Association Self-Funded Trust Fund; 1986

North Carolina School Boards Association Self-

Funded Errors and Omissions/General Liability

Trust Fund; and the 1997 North Carolina School

Boards Association Self-Funded Auto/Inland Marine

Trust Fund (collectively “Trust Defendants”). We

reverse and remand.

A summary of the facts in this case are set out

in Ripellino v. North Carolina School Board

Association, Inc., 158 N.C. App. 423, 425, 581 S.E.2d

88, 90 (2003) (“*Ripellino I”) as follows:

At the end of classes on 9 March 1998,

[Nicole Ripellino (“Nicole”)] was

departing from Clayton High School in

Johnston County in her parent(s’)

vehicle. A traffic control gate owned by

the Johnston County Board of

Education (“the Board”) swung closed,

struck the vehicle, and injured Nicole.

In October 1998, the Ripellinos were

paid $2,153.18 for property damage.

The Board refused to pay medical

expenses or other compensation.

On 26 March 2001... plaintiffs

filed suit against the Board, and [the

Trust Defendants]. Plaintiffs alleged

(1) a negligent personal injury claim

against the Board on the part of Nicole,

(2) a medical expenses claim on thé part

of Nicole’s parents against the Board,

App. 7

(3) declaratory judgment that immunity

had been waived through (a)

participation in the trust and (b) the

payment of property damages, (4)

unfair and deceptive trade practices

against all defendants, (5) 42 U.S.C. §

1983 claim .. . and constitutional

claims against all defendants, and (6)

punitive damages.

Upon motion of the Board, the

trial court bifurcated the trial allowing

the issues of whether the Board was

immune from suit and whether the

Board had waived sovereign immunity

to be resolved while the other claims

were stayed. ... ([T)he trial court

granted summary judgment in favor of

all defendants on all claims. Plaintiffs

appealled.]...

In Ripellino I, this Court held, inter alia: (1) the

Board waived sovereign immunity to the extent that

its insurance policies covered claims in excess of

$100,000 and less than $1,000,000; (2) the Board

could not use sovereign immunity as a defense

against constitutional and 42 U.S.C. § 1983 claims;

and (3) the Board was immune from punitive

damages claims because it is a governmental entity.

Id.

On remand to the trial court after Ripellino I,

the Board and the Trust Defendants filed motions

for summary indgment for all non-constitutional

oe _—_ v

claims and judgment on the pleadings for claims

App. 8

under 42 U.S.C. § 1983 and the North Carolina

Constitution. The trial court entered orders for

summary judgment and judgment on the pleadings.

Plaintiffs appeal.

I. Summary Judgment as to the Non-

Constitutional Claims

Plaintiffs argue the trial court erred by

granting the Board’s and the Trust Defendants’

motions for summary judgment regarding the non-

constitutional claims. Summary judgment is

appropriate where “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. Gen. Stat. § 1A-1, Rule 56(c) (2005). “In

ruling on such motion, the trial court must view all

evidence in the light most favorable to the non-

movant, taking the non-movant’s asserted facts as

true, and drawing all reasonable inferences in her

favor.” Glenn-Robinson v. Acker, 140 N.C. App. 606,

611, 538 S.E.2d 601, 607 (2000). On appeal, we

review the granting of a summary judgment motion

de novo. Granville Farms, Inc. v. County of

Granville, __ N.C. App. __, __, 612 S.E.2d 156,

158 (2005).

Plaintiffs specifically argue that the trial court

erred by granting the Board’s and the Trust

Defendants’ motions for summary judgment

regarding the non-constitutional claims because the

plaintiffs presented evidence on all the elements of a

negligence claim and sovereign immunity is waived

App. 9

to the extent the Board’s insurance policy provides

coverage for claims in excess of $100,000 and less

than $1,000,000. Plaintiffs additionally contend that

their claim is within this monetary range and

included in the broad wording of the Trust

Agreement, which provides coverage for:

all or part of a Claim made or any civil

judgment entered against any of its

members . . . when such Claim is made

or such judgment is rendered as

Damages on account of any act done or

omission made... in the scope of their

duties as members of the local board of

education or as employees.

The Board responds the trial court properly

granted summary judgment because Exclusion

Number 18 in the Coverage Agreement excludes

coverage for “any Claim arising out of the ownership,

maintenance, operation, use, loading or unloading of

any Automobile” and Nicole was hit by a gate while

driving an automobile. Plaintiffs contend, however,

that the malfunctioning of the gate could have

occurred even if Nicole had not been driving a car

and the gate would have injured her even if she had

been walking or riding a bicycle. We agree with

plaintiffs and reverse because the forecast of

evidence leaves no material dispute over the fact

that plaintiffs’ injuries did not “arise out of” the use

of an automobile.

Our Supreme Court has held that “the

standard of causation applicable to the ambiguous

‘arising out of language ... is one of proximate

App. 10

cause. State Capital Ins. Co. v. Nationwide Mut. Ins.

Co., 318 N.C. 534, 547, 350 S.E.2d 66, 74 (1986).

“Proximate cause is a cause that produced the result

in continuous sequence and without which it would

not have occurred, and one from which any man of

ordinary prudence could have foreseen that such a

result was probable under all the facts as they

existed.” Mattingly v. North Carolina R.R., 253 N.C.

746, 750, 117 S.E.2d 844, 847 (1961). Viewing the

evidence in the light most favorable to defendants,

no material dispute exists as to the proximate cause

of plaintiffs’ injury. Although defendants argue that

plaintiff traveled in a car at the time of the incident,

they have failed to show an automobile proximate

cause, i.e., any action or omission by plaintiffs’

automobile that would have resulted in a person of

ordinary prudence foreseeing plaintiffs’ injuries.

Since there is no automobile proximate cause on

these facts, plaintiffs’ injury did not fall within the

language of Exclusion 18, and we reverse the

summary judgment in favor of the Board and

remand for entry of summary judgment in favor of

plaintiffs. Likewise, because the trial court erred in

granting summary judgment in the Board’s favor, it

also erred in granting summary judgment in the

Trust Defendants’ favor, whose liability is derivative

to the Board’s liability. Accordingly, we reverse

summary judgment in favor of the Trust Defendants

and remand for entry of summary judgment in favor

of plaintiffs.

App. 11

Il. Judgment on the Pleadings as to the

Constitutional Claims

Plaintiffs argue that the trial court erred in

granting judgment on the pleadings in favor of

defendants regarding the state constitutional claims

and United States constitutional claims under 42

U.S.C. § 1983. “The granting of judgment on the

pleadings is proper when there does not exist a

genuine issue of material fact, and the only issues to

be resolved are issues of law. In reviewing a motion

for judgment on the pleadings, [this] court must

consider the evidence in the light most favorable to

the non-moving party, accepting as true the factual

allegations as pled by the non-moving party.” Davis

v. Durham Mental Health/ Dev.

Disabilities/Substance Abuse Area Auth., 165 N.C.

App. 100, 105, 598 S.E.2d 237, 241 (2004) (citations

omitted). Moreover, when reviewing a trial court’s

granting of a Rule 12(c) motion, this Court considers,

“only the pleadings and exhibits which are attached

and incorporated into the pleadings[.]” See id., 165

N.C. App. at 104, 598 S.E.2d at 240 (citations

omitted).

Plaintiffs argue that their equal protection

and due process rights have been violated under our

federal and state constitution.

Plaintiffs seek to use 42 U.S.C. § 1983 to enforce

their federal constitutional rights. See Gonzaga

University v. Doe, 536 U.S. 273, 285, 153 L. Ed. 2d

309, 322 (2002) (“Section 1983 ... provides a

mechanism for enforcing individual rights ‘secured’

elsewhere ie. rights independently secured by the

Constitution and laws of the United States”).

App. 12

Plaintiffs’ claims are based on their contentions that:

(1) the Board has a “policy and custom of paying

some claims but not paying others, when immunity

could be raised in each one,” and (2) the Board has

“paid the property damage, but [has] asserted

immunity in the remaining portion of Plaintiffs

claim[.]”

They also seek to remedy these alleged

deprivations directly under our state constitution,

which states:

No person shall be taken, imprisoned,

or disseized of his freehold, liberties, or

privileges, or outlawed, or exiled, or in

any manner deprived of his life, liberty,

or property, but by the law of the land.

No person shall be denied the equal

protection of the laws; nor shall any

person be subjected to discrimination by

the State because of race, color,

religion, or national origin.

N.C. Const. art. I, § 19.

Plaintiffs specifically allege, in pertinent part:

15. Upon information and belief, in

the past, the Association, Trust

Defendants, and The Johnston County

Board of Education could have raised

the doctrine of immunity on many tort

claims, but chose instead, for various

reasons that will be proven at trial, to

pay claims even in light of the

App. 13

immunity defense. Upon information

and belief, the Association and Trust

Defendants, in conjunction with The

Johnston County Board of Education,

would examine each claim to see if the

immunity doctrine could be raised...

but thereafter some claims were

nevertheless paid. This disparate

treatment of claimholders is prohibited

by the United States and North

Carolina Constitutions, as well as 42

U.S.C. § 1983....

44. At all times pertinent hereto,

[defendants] .. . in claiming immunity

as to the Plaintiffs’ claims for personal

injury and medical expenses, . . . have

subjected these Plaintiffs to the

deprivation of their equal protection

and substantive due process rights

under the United States Constitution,

as enforced by 42 U.S.C. § 1983, and

Article 1, [§) 19 of the North Carolina

Constitution.

45. These Plaintiffs have been denied

due process and equal protection of the

law as the Defendants have paid the

property damage, but have asserted

immunity in the remaining portion of

Plaintiffs’ claim, but have, upon

information and belief, customarily

waived it for. similarly situated

individuals who have been compensated

for tort damages.

App. 14

46. [Defendants’] policy and custom

of paying some claims but not paying

others, when immunity could be raised

in each one, has played a part in the

violation of federal and state law.

Additionally, the Defendants’ conduct

in this case, of paying the property

damage, and assuming liability for the

claim, and then refusing to pay the

personal injury and medical expense

portion of the claim, is a violation of

Plaintiffs’ federal and state

constitutional rights, as a matter of

law.

47. Upon information and belief, the

[Defendants] have what amounts to be

unbridled discretion to resolve claims

filed with the local board of education.

48. As a result of the conduct of

these Defendants, the Plaintiffs have

been deprived of their right to recover

for the bodily injury and medical

expenses portion of the Ripellino claim.

49. The Fourteenth Amendment to

the United States Constitution, Article

I, {8} 19 of the North Carolina

Constitution, and 42 U.S.C. § 1983

protect these Plaintiffs against

intentional and arbitrary

discrimination, being the conduct of the

[defendants] as to these Plaintiffs.

App. 15

50. Asa proximate result of the Fifth

and Fourteenth Amendments to the

United States Constitution, Article 1.

[$] 19 of the Constitution of the State of

North Carolina, and 42 U.S.C. § 1983

violations by [defendants], the Plaintiffs

are entitled to recover damages.

These allegations amount to more than “conclusory,

unwarranted deductions of fact, or unreasonable

inferences,” Good Hope Hosp., Inc. v. N.C. Dep’t. of

Health and Human Serv.,___—-N.C. App.___,__, 620

S.E.2d 873, 880 (2005) (citations omitted), and

comply with the liberal standard of notice pleading

applied in this State, under which “a claim is

adequate if it gives sufficient notice of the events or

transactions which produced the claim to enable the

adverse party to understand its nature and basis

and to file a responsive pleading.” Mullis uv.

Sechrest, 347 N.C. 548, 554, 495 S.E.2d 721, 724

(1998) (citations omitted).

In regard to the judgment on the pleadings as

to the claims under 42 U.S.C. § 1983, we consider an

issue of first impression, whether a school board is a

person within the meaning of 42 U.S.C. § 1983.

By federal statute,

Every person who, under color of any

statute, ordinance, regulation, custom,

or usage, of any State or Territory or

the District at Columbia, suhiects, or

causes to be subjected, any citizen of

App. 16

the United States or other person

within the jurisdiction thereof to the

deprivation of any rights, privileges, or

immunities secured by the Constitution

and laws, shall be liable to the party

injured in an action at law, suit in

equity, or other proper proceeding for

redress...

42 U.S.C. § 1983 (2005).

The Board argues that the trial court properly

granted judgment on the pleadings because it is

well-settled that neither the State of North Carolina

nor its respective agencies are “persons” within the

meaning of § 1983 when the remedy sought is

monetary damages. In Will v. Michigan Dep't. of

State Police, the United States Supreme Court held

that states are not “persons” within the meaning of §

1983 and further noted that “in deciphering

congressional intent as to the scope of § 1983, the

scope of the Eleventh Amendment is a

consideration[.]” 491 U.S. 58, 66-67, 105 L. Ed. 2d

45, 55 (1989). In Howlett v. Rose, the Supreme Court

reemphasized that “the State and arms of the State,

which have traditionally enjoyed Eleventh

Amendment immunity are not subject to suit under

§ 1983 in either federal court or state court.” 496

U.S. 356, 365, 110 L. Ed. 2d 332, 346 (1990). The

opinion clarified which law applies: “[T]he elements

of, and the defenses to, a federal cause of action

[such as § 1983] are defined by federal lawl[,]” id.,

496 U.S. at 372, 110 L. Ed. 2d at 352, and “[t]o the

extent that the [state] law of sovereign immunity

reflects a substantive disagreement with the extent

App. 17

to which governmental entities should be held liable

for their constitutional violations, that disagreement

cannot override the dictates of federal law.” IJd., 496

U.S. at 377-78, 110 L. Ed. 2d at 354. Accordingly,

we apply federal law to determine whether our local

school boards should be considered “persons” within

the meaning of § 1983.

In Mt. Healthy City School Dist. Bd. of Educ.

vu. Doyle, 429 U.S. 274, 50 L. Ed. 2d 471 (1977), the

United States Supreme Court considered “whether

{an Ohio city’s] Board of Education [was] to be

treated as an arm of the State partaking of the

State’s Eleventh Amendment immunity, or [was]

instead to be treated as a municipal corporation or

other political subdivision to which the Eleventh

Amendment does not extend.” Jd., 429 U.S. at 280,

50 L. Ed. 2d at 479. The Court noted that, “the

answer depends, at least in part, upon the nature of

the entity created by state law.” Jd. The Court

considered that under Ohio law the “State” did not

include “political subdivisions.” Local school boards

were expressly considered part of “political

subdivisions,” and therefore, were not part of the

State. The Court also found significant that even

though the local school boards received money and

guidance from the State, they could also issue bonds

and levy taxes. These facts lead the Supreme Court

to conclude that the Ohio local school board was

“more like a county or city than it is like an arm of

the State.” Id.

Although we recognize that Eleventh

Amendment immunity is a separate inquiry from

whether or not a given entity is a “person” within the

App. 18

meaning of § 1983, Eleventh Amendment immunity

is, nonetheless, a consideration in determining

congressional intent under § 1983. See Will, supra.

We, therefore, consider the nature of the local school

boards under North Carolina law. See Mt. Healthy,

supra.

There is conflicting authority from our

Supreme Court about whether local school boards

are considered local entities or part of the State.

Our Supreme Court has most recently held, “County

and city boards of education serve very important,

though purely local functions. The State contributes

to the school fund, but the local boards select and

hire the teachers, other employees and operating

personnel. The local boards run the schools.”

Turner v. Gastonia City Bd. of Educ., 250 N.C. 456,

463, 109 S.E.2d 211, 216 (1959). In Turner, our

Supreme Court also held that the Tort Claims Act

does not apply to local school boards, except as

amended by N.C. Gen. Stat. § 143-300.1, because

“liln no sense may we consider the Gastonia City

Board of Education in the same category as the State

Board of Education and the State Highway & Public

Works Commission.” Id. See also Crump v. Bd. of

Educ. of Hickory Admin. Sch. Unit., 326 N.C. 603,

392 S.E.2d 579 (1990) (applying § 1983 to remedy a

due process violation by a local school board when it

is not clear if the issue of a local school board being

“a person” within the meaning of § 1983 was raised

by the parties).

However, in an earlier decision, our Supreme

Court said:

App. 19

The public school system, including all

its units, is under the exclusive control

of the State, organized and established

as its instrumentality in discharging an

obligation which has always been

considered direct, primary and

inevitable. When functioning within

this sphere, the units of the public

school system do not exercise derived

powers such as are given to a

municipality for local government, so

general as to require appropriate

limitations on their exercise; they

express the immediate power of the

State, as its agencies for the

performance of a special mandatory

duty resting upon it under the

Constitution and under its direct

delegation.

Bridges v. Charlotte, 221 N.C. 472, 478, 20 S.E.2d

825, 830 (1942). See also Rowan County Bd. of

Educ. v. U.S. Gypsum Co., 332 N.C. 1, 10-11, 418

S.E.2d 648, 655 (1992) (holding that the doctrine of

nullum tempus applied to a local school board

because it was “acting as an arm of the State and

pursuing the governmental function of constructing

and maintaining its schools.” (Emphasis added)).

Since precedent is unclear whether school

boards are considered part of the State, we consider

the underlying structure of our school system. The

North Carolina Constitution emphasizes’ the

importance of education in our state: “Religion,

morality, and knowledge being necessary to geod

App. 20

government and the happiness of mankind, schools,

libraries, and the means of education shall forever be

encouraged.” N.C. Const. art. IX, § 1. Our

forefathers further provided: “The General Assembly

shall provide by taxation and otherwise for a general

and uniform system of free public schools, which

shall be maintained at least nine months in every

year, and wherein equal opportunities shall be

provided for all students.” N.C. Const., art. IX, §

2(1). _

Pursuant to these constitutional mandates,

our General Assembly has enacted legislation for “[a]

general and uniform system of free public schools...

throughout the State.” N.C. Gen. Stat. § 115C-1.

The State Board of Education is vested with the

powers to oversee “general supervision and

administration of the free public school system.”

N.C. Gen. Stat. § 115C-12. Local boards of education

responsibilities include the duty “to provide

adequate school systems within their respective local

school administrative units.” N.C. Gen. Stat. §

115C-47(1). By statute, local boards are corporate

bodies that can sue and be sued. N.C. Gen. Stat. §

115C-40. Yet, the fact that our local school boards

are corporate bodies “does not mean that the

Legislature has waived immunity from liability for

torts for such boards.” Fields v. Durham City Bd. of

Educ., 251 N.C. 699, 111 S.E.2d 910 (1960). It is

noteworthy, however, that whether an entity has

sovereign immunity under state law is not

determinative of whether that entity is part of the

State for purposes of federal law. For instance,

entities, such as counties, have sovereign immunity

under state law but are not part of the State under

App. 21

federal law. See Herring v. Winston-Salem/Forsyth

County Bd. of Educ., 137 N.C. App. 680, 683, 529

S.E.2d 458, 461 (“As a general rule, the doctrine of

governmental, or sovereign immunity bars actions

against, inter alia, the state, its counties, and its

public officials sued in their official capacity. The

doctrine applies when the entity is being sued for the

performance of a governmental function. But it does

not apply when the entity is performing a

ministerial or proprietary function”). But cf. Monell

v. Dept. of Social Serv. of New York, 436 U.S. 658,

690, 56 L. Ed. 2d 611, 635 (1978) (“Our analysis of

the legislative history of the Civil Rights Act of 1871

compels the conclusion that Congress did intend

municipalities and other local government units to

be included among those persons to whom § 1983

applies”).

Also relevant to our discussion is the manner

chosen by our General Assembly to select members

of local boards of education. The members are

elected in local elections. N.C. Gen. Stat. § 115C-

37(b). However, there is some authority from our

Supreme Court that members of local boards of

education hold a public office under the State. See

Edwards v. Bd. of Educ. of Yancey County, 235 N.C.

345, 70 S.E.2d 170 (1952) (holding a “member of the

county board of education holds a public office under

the State”). But see Turner, supra.

The financing of the public school system is

provided by State, local, and federal governments.

Our General Assembly propounded a state policy “to

provide from State revenue sources the instructional

expenses for current operations of the_public school

App. 22

system as defined in the standard course of study.”

N.C. Gen. Stat. § 115C-408 (2005). Another

constitutional provision provides that the General

Assembly has authority to require local governments

to contribute to the costs of education. N.C. Const.

art. EX, § 2). In accordance with this

Constitutional provision, our legislature has said, “It

is the policy of the State of North Carolina that the

facilities requirements for a public education system

will be met by county governments.” N.C. Gen. Stat.

§ 115C-408. Moreover, local school boards have

authority to have taxes “levied on [their] behalf as a

school supplemental tax” by the county. N.C. Gen.

Stat. § 115-511. However, “[t]he board of county

commissioners may approve or disapprove of this

request in whole or in part,” id., although local

school boards can bring suit to enforce a county’s

obligation to raise funds. N.C. Gen. Stat. § 115C-

431.

In considering the Eleventh Amendment for

purposes of determining congressional intent under

§ 1983, we are mindful of the “twin reasons” for the

amendment’s adoption: (1) “the States’ fears that

‘federal courts would force them to pay their

Revolutionary War debts, leading to their financial

ruin,” and (2) “the integrity retained by each State

in our federal system,” which includes the States’

sovereignty from suit. Hess v. Port Auth. Trans-

Hudson Corp., 513 U.S. 30, 39, 130 L. Ed. 2d 245,

255 (1994) (quotations and citations omitted).

Although both state and local governments

contribute to our school systems, there is no

argument before us that any recovery in this matter

App. 23

would come directly from our State treasury.

Rather, the local school board is a corporate entity

that can sue and be sued, N.C. Gen. Stat. §§ 115C-

40, and our legislature has empowered local boards

to waive sovereign immunity by obtaining insuranc: ,

N.C. Gen. Stat. § 115C-42 (2005), which the

Johnston County board has done in this case.

Moreover, as to the issue of maintaining the

integrity of North Carolina within the federal

system, we are convinced that suit against a local

school board that performs “very important, though

purely local functions,” see Turner, supra, and that is

its own corporate body separately liable from the

State will not hinder our State's integrity within the

federal system. Accordingly, we hold that a local

school board is a “person” within the meaning of §

1983.

In regard to the state constitutional claims,

the Board argues that plaintiffs cannot seek redress

under the state constitution because “plaintiffs have

an adequate state remedy. But for the Board’s

assertion of immunity, plaintiffs’ cause of action in

negligence would redress the complained of injury.”

Our Supreme Court has said, “[I]n the absence of an

adequate state remedy, one whose _ state

constitutional rights have been abridged has a direct

claim against the State under our Constitution.”

Corum v. Univ. of N.C., 330 N.C. 761, 782, 413

S.E.2d 276, 289 (1992). In considering whether an

adequate state remedy exists, we consider whether,

if any state remedy, if successful, would compensate

a plaintiff for the same injury alleged in the direct

constitutional claim. Rousselo v. Starling, 128 N.C.

App. 439, 447, 495 S.E.2d 725, 731 (1998).

i ai a i

|

App. 24

The Board’s argument confuses the issues

presented. Plaintiffs have claimed damages for both

negligence and “intentional and _ arbitrary

discrimination” by the Board against the tort claim.

Plaintiffs seek to remedy the injury incurred by the

alleged arbitrary and unequal application of the

Board’s immunity. There is no adequate remedy for

such conduct in a negligence action or in any other

state law cause of action. Accordingly, we hold that

plaintiffs have no adequate state remedy and may

proceed directly under the State constitution.

|

Having determined that a local school board is

a person within the meaning of § 1983 and that

plaintiffs have no adequate state remedy preventing

them from proceeding under the State constitution,

we consider whether judgment on the pleadings was

otherwise appropriate. In Dobrowolska v. Wall, this 4

Court held that summary judgment’ was

inappropriate where there was no evidence in the

record that the City of Greensboro applied a set

criteria in deciding when to settle claims. 138 N.C.

App. 1, 18, 530 S.E.2d 590, 602 (2000). Similarly, in

this case, viewing the evidence in the light most

favorable to the plaintiffs, there is a material issue of

fact as to whether the Board applied a reasonable

criteria to its evaluation of claims. See Dobrowolska,

supra. Accordingly, judgment on the pleadings was

inappropriate as to the constitutional claims. See

Davis, supra (“The granting of judgment on the

pleadings is [only] proper when there does not exist

a genuine issue of material fact, and the only issues

to be resolved are issues of law”).

App. 25

We additionally address the dissent’s reliance

on Clayton v. Branson, __ N.C. App. __, 613 S.E.2d

259 (2005). Branson, in pertinent part, dealt with

the issue of whether a trial court properly denied a

defendant’s motion for JNOV regarding claims

arising under 42 U.S.C. § 1983. This Court held that

on the Branson facts the trial court erred in denying

the defendant’s motion for JNOV. The standard of

review for a motion for JNOV and a motion for

judgment on the pleadings are _ substantially

different. When considering a motion for JNOV:

all the evidence must be considered in

the light most favourable to the

nonmoving party. The nonmovant is

given the benefit of every reasonable

inference .. . from the evidence and all

contradictions are resolved in the

nonmovant’s favor. If there is more

than a scintilla of evidence supporting

each element of the nonmovant’s case,

the motion for . . . judgment

notwithstanding the verdict should be

denied.

Branson, __ N.C. App. __, 613 S.E.2d at 263-64

(citations omitted). As we have previously stated,

however, judgment on the pleadings is only proper

when there are no genuine issues of material fact,

and the only issues to be resolved are issues of law.

Davis, supra. In this case, judgment on the

pleadings was inappropriate because there are

genuine issues of material fact presented by the

pleadings as to whether defendants applied an

appropriate, non-arbitrary criteria on an equal basis

App. 26

to all claimants. Accordingly, we remand this issue

to the trial court.

Reversed and remanded.

Judge HUDSON concurs.

Judge LEVINSON concurs in part and dissents in

part with a separate opinion.

App. 27

NO. COA04-1681

NORTH CAROLINA COURT OF APPEALS

Filed: 7 March 2006

MICHAEL G.- RIPELLINO, LOUISE A.

RIPELLINO, AND NICOLE RIPELLINO

Plaintiffs,

Vv.

THE NORTH CAROLINA SCHOOL BOARDS

ASSOCIATION, INCORPORATED; NORTH

CAROLINA SCHOOL BOARDS TRUST, a division

and/or department oof, CREATED AND

ADMINISTERED BY, THE NORTH CAROLINA

SCHOOL BOARDS ASSOCIATION,

INCORPORATED; 1982 NORTH CAROLINA

SCHOOL BOARDS ASSOCIATION SELF-FUNDED

TRUST FUND, a division and/or department of,

created and administered by, THE NORTH

CAROLINA SCHOOL BOARDS ASSOCIATION,

INCORPORATED; 1986 NORTH CAROLINA

SCHOOL BOARDS ASSOCIATION SELF-FUNDED

ERRORS AND OMISSIONS/GENERAL LIABILITY

TRUST FUND, a division and/or department of,

created and administered by, THE NORTH

CAROLINA SCHOOL BOARDS ASSOCIATION,

INCORPORATED; 1997 NORTH CAROLINA

SCHOOL BOARDS ASSOCIATION SELF-FUNDED

AUTO/INLAND MARINE TRUST FUND, a division

and/or department of, created and administered by,

THE NORTH CAROLINA SCHOOL BOARDS

App. 28

ASSOCIATION, INCORPORATED; and THE

JOHNSTON COUNTY BOARD OF EDUCATION,

Defendants.

LEVINSON, Judge concurring in part and

dissenting in part.

I concur with the conclusion of the majority

opinion that plaintiffs injuries did not fall within

Exclusion 18 of the Coverage Agreement, and that

the trial court’s order must be reversed and

remanded for entry of summary judgment in favor of

defenants in this respect. However, I disagree with

the conclusion that the constitutional claims

survived defendants’ Rule 12(c) motions, and

therefore respectfully dissent from these portions of

the majority opinion. Because it is unnecessary to

do so, I make no comment on whether a local school

board is a “person” within the meaning of 42 U.S.C. §

1983 (2005).

Unlike the majority, I conclude the trial court

correctly granted defendants’ N.C. Gen. Stat. § 1A-1,

Rule 12(c) (2005) motion for judgment on the

pleadings with respect to the constitutional claims,

and would therefore affirm the trial court’s order in

this respect.

“A meotien for judgment on the pleadings is

the proper precedure when all the material

allegations of fact are admitted in the pleadings and

only questions of law remain.” Daniels v.

Montgomery Mut. Ins. Co., 320 N.C. 669, 682, 360

S.E.2d 772, 780 (1987) (quoting Ragsdale v.

App. 29

Kennedy, 286 N.C. 130, 137, 209 S.E.2d 494, 499

(1974)). “When a motion for judgment on the

pleadings is made, the trial court is required to view

the facts and permissible inferences in the light most

favorable to the non-moving party, and all well

pleaded factual allegations in the non-moving party’s

pleadings must be taken as true.” Burton v. Kenyon,

46 N.C. App. 309, 310, 264 S.E.2d 808, 809 (1980).

A motion for judgment on the pleadings has

some similarities to motions for dismissal for failure

to state a claim for relief, under N.C. Gen. Stat. §

1A-1, Rule 12(b)(6) (2005), and summary judgment

under N.C. Gen. Stat. § 1A-1, Rule 54 (2005). See

Floraday v. Don Galloway Homes, 340 N.C. 223, 224,

456 S.E.2d 303, 304 (1995) (“[P]ursuant to Rule 12(c)

of the North Carolina Rules of Civil Procedure,

defendant filed a motion for judgment on the

pleadings, requesting dismissal of the action on the

grounds that the complaint failed to state a claim

upon which relief could be granted.”); Kessing uv.

Mortgage Corp., 278 N.C. 523, 533, 180 S.E.2d 823,

829 (1971) (“Motions under Rules 12(b)(6) and 12(c)

can be treated as summary judgment motions, the

difference being that under Rules 12(b)(6) and 12(c)

the motion is decided on the pleadings alone, while

under Rule 56 the court may receive and consider

various kinds of evidence.”). “The principal

difference .. . is that a motion under Rule 12(c) . . . is

properly made after the pleadings are closed while a

motion under Rule 12(b)(6) must be made prior to or

contemporaneously with the filing of the responsive

pleading. Robertson v. Boyd, 88 N.C. App. 437, 440,

362 S.E.2d 672, 675 (1988) Additionally, in

i _——— —y-. a

addressing a Rule 12(c) motion, the trial court “may

App. 30

consider .. . ‘only the pleadings and exhibits which

are attached and incorporated into the pleadings|.]”

Davis v. Durham Mental Health/Dev. Disabilities

Area Auth., 165 N.C. App. 100, 104, 598 S.E.2d 237,

240 (2004) (quoting Helms v. Holland, 124 N.C. App.

629, 633, 478 S.E.2d 513, 516 (1996)) (citation

omitted).

Plaintiffs herein sought damages “pursuant to

42 U.S.C. §§ 1983, 1988, the Fifth, the Fourteenth

Amendments to the United States Constitution and

Article I, [§] 19, of the Constitution of the State of

North Carolina.” I conclude that their complaint

fails to set forth facts that, accepted as true and

allowing all reasonable inferences from those facts,

would entitle them to relief under any legal theory,

or would demonstrate a genuine issue of material

fact.

In reaching this conclusion, I am mindful that

in considering a Rule 12(c) motion, “[w]Je are not

required .. . to accept as true allegations that are

merely conclusory, unwarranted deductions of fact,

or unreasonable inferences.” Good Hope Hosp. uv.

Dept. of Health, 174 N.C. App. 266, 274, 620 S.E.2d

873, 880 (2005) (quoting Veney v. Wyche, 293 F.3d

726, 730 (4th Cir. 2002)). “Though the trial court is

obligated to take all of the allegations of the

complaint as true in ruling upon the motion, it is

elementary that the trial court must draw its own

legal conclusions from those facts, and that it may

draw conclusions which may differ from those

advocated by plaintiffs.” Affordable Care, Inc. v.

N.C. State Bd. of Dental Exam’rs, 153 N.C. App. 527,

532, 571 S.E.2d 52, 57 (2002). See also, Lewis v.

App. 31

College, 23 N.C. App. 122, 127, 208 S.E.2d 404, 407

(1974) (upholding dismissal under Rule 12(b)(6)

where alleged facts did not state ground for relief

and “[o]ther portions of the complaint also contain

allegations which, in our view, amount to no more

than plaintiffs own unwarranted deductions or

conclusions of law”).

Thus, this Court’s analysis of whether the

trial court erred by dismissing plaintiffs’ complaint

requires us to distinguish between factual

allegations and conclusions of law. “Findings of fact

are statements of what happened in space and time.”

State ex rel. Utilities Comm. v. Eddleman, 320 N.C.

344, 351, 358 S.E.2d 339, 346 (1987). “Matters of

judgment are not factual; they are conclusory and

based ultimately on various factual considerations. .

... [Facts] can be objectively ascertained by one or

more of the five senses or by mathematical

calculation.” State ex rel. Utilities Comm. v. Public

Staff, 322 N.C. 689, 693, 370 S.E.2d 567, 570 (1988).

The majority cites the following allegations of

plaintiffs’ complaint in support of its conclusion that

the trial court erred by dismissing plaintiffs’ claim:

15. Upon information and belief, in the

past, the Association, Trust Defendants and the

Johnston County Board of Education could have

raised the doctrine of immunity on many tort claims,

but chose instead, for various reasons that will be

proven at trial, to pay claims even in light of the

immunity defense. Upon information and belief, the

Association, Trust Defendants, in conjunction with

the Johnston County Board of Education, would

App. 32

examine each claim to see if the immunity doctrine

could be raised. Upon information and belief, if the

immunity doctrine would be raised, it was raised,

but thereafter some claims were nevertheless paid.

This disparate treatment of claimholders is

prohibited by the United States and North Carolina

Constitutions, as well as 42 U.S.C. § 1983.

44. At all times. pertinent hereto,

[defendants] . . . in claiming immunity

as to the Plaintiffs’ claims for personal

injury and medical expenses, .. . have

subjected these Plaintiffs to the

deprivation of their equal protection

and substantive due process rights

under the United States Constitution,

as enforced by 42 U.S.C. § 1983, and

Article I, [§] 19 of the North Carolina

Constitution.

45. These Plaintiffs have been denied due

process and equal protection of the law

as the Defendants have paid the

property damage, but have asserted

immunity in the remaining portion of

Plaintiffs’ claim, but have, upon

information and belief, customarily

waived it for similarly situated

individuals who have been compensated

for tort damages.

46. [Defendants’] policy and custom of

paying some claims but not paying

47.

48.

49.

50.

App. 33

others, when immunity could be raised

in each one, has played a part in the

violation of federal and state law.

Additionally, the Defendants’ conduct

in this case, of paying the property

damage, and assuming liability for the

claim, and then refusing to pay the

personal injury and medical expense

portion of the claim, is a violation of

Plaintiffs’ federal and state

constitutional rights, as a matter of

law.

Upun information and belief, the

[Defendants] have what amounts to be

unbridled discretion to resolve claims

filed with the local board of education.

As a result of the conduct of these

Defendants, the Plaintiffs have been

deprived of their right to recover for the

bodily injury and medical expenses

portion of the Ripellino claim.

The Fourteenth Amendment to the

United States Constitution, Article I, [§]

19 of the North Carolina Constitution,

and 42 U.S.C. § 1983 protect these

Plaintiffs against intentional and

arbitrary discrimination, being the

conduct of the [defendants] as to these

Plaintiffs.

As a proximate result of the Fifth and

Fourteenth Amendments to the United

App. 34

States Constitution, Article I, [§] 19 of

the Constitution of the State of North

Carolina, and 42 U.S.C. § 1983

violations by [defendants], Plaintiffs are

entitled to recover damages|.]

In reviewing the trial court’s dismissal under

Rule 12(c), I rely in part on this Court’s recent

opinion in Clayton v. Branson, 170 N.C. App. 438,

613 S.E.2d 259 (2005), disc. review denied, 360 N.C.

174, _ S.E.2d _ (filed 1 December 2005). The

opinion in Branson sets out a comprehensive legal

“roadmap” for review of constitutional claims based

on a governmental unit’s settlement policies and

practices. Although (1) the instant case involves a

Rule 12(c) motion while Branson reviewed the trial

court’s ruling on a motion for JNOV, and (2)

different facts are present in each case, I conclude

that Branson resolves certain legal issues raised in

both cases.

Plaintiffs’ factual allegations, considered

singly or together, in conjunction with inferences

logically drawn from these facts, do not state a claim

for relief. Plaintiffs assert in paragraph No. 15 that

defendants examined each claim to determine if the

defense of governmental immunity would be

available. Plaintiffs allege, in paragraphs Nos. 15,

45, and 46, that plaintiffs have paid damages to

certain tort claimants, but would not pay plaintiffs’

claim. And, in paragraphs Nos. 45 and 46, plaintiffs

allege that defendants paid part of their claim, but

did not pay all of it. These factual allegations, taken

as true, do not give rise to liability as discussed

below.

App. 35

Plaintiffs further allege that by settling some

claims defendants thereby “waived” the defense of

governmental immunity, and that by refusing to

offer plaintiffs a settlement, defendants were

“raising” the defense of governmental immunity.

Plaintiffs’ characterization of defendants’ actions is a

conclusion of law, which the court is not required to

accept as true, and is, in any event, simply an

erroneous conclusion of law.

Branson observed that, as an affirmative

defense, “governmental immunity cannot, by

definition, be raised until there is a lawsuit to defend

against.” Id. at__, 613 S.E.2d at 268. On this basis,

Branson held that “the execution of settlement

contracts between a municipality and tort claimants

do not constitute waivers of the affirmative defense

of governmental immunity.” Jd. This reasoning is

applicable to the instant case. Accordingly,

plaintiffs’ allegation, that defendants may have

compensated other tort claimants, does not support

an inference that defendants raised the defense of

immunity in response to a lawsuit, nor that they

subsequently waived the defense.

Plaintiffs herein also state that defendants

have “unbridled discretion” to decide whether to

settle claims. In other words, plaintiffs complain

that defendants’ authority over tort claims is not

subject to regulation, and is constrained only by

state and federal constitutional prohibitions on

discrimination. Plaintiffs further assert that

defendants’ “unbridled discretion” violates their

constitutional right to substantive and procedural

App. 36

due process. Again, this is not a statement of fact,

but is a legal conclusion that need not be accepted at

face value.

Plaintiffs’ position, that defendants’ freedom

to decide when to compensate claimants violates

their constitutional rights, rests on the premise that

there is a right to recover damages that cannot be

abrogated without procedural due process, and that

such right must be administered according to

definite objective criteria. “However, § 1983 does not

create constitutional rights, and is available only to

enforce constitutional rights whose source may be

identified[.)” Jd. at _, 613 S.E.2d at 269.

Consequently, plaintiffs’ statement that defendants

enjoy the discretion to decide when to settle claims

does not support recovery unless plaintiffs also

allege facts supporting an inference that they have a

constitutionally protected legal right at issue.

As discussed in Branson, the right to

procedural due process arises only upon the

existence of a constitutionally protected property

right and, absent a valid waiver of governmental

immunity, a plaintiff has no “right” to recover

damages from a governmental defendant. Therefore,

plaintiffs clearly have no protected property right

that would give rise to procedural due process rights:

Plaintiff herein claims a

constitutionally protected property

interest in his right to recover damages

from the city..... As discussed above,

absent a waiver of governmental

immunity by the purchase of liability

App. 37

insurance, plaintiff is barred from

maintaining a lawsuit against the city.

As plaintiff has no right to maintain a

suit against the city, under the facts set

forth in this opinion, he cannot have a

“constitutionally protected” property

right to do so.

Id. at __, 613 S.E.2d at 270. Inasmuch as plaintiffs

have no constitutionally protected right to recover

from defendants, and therefore have no procedural

due process rights, defendants’ freedom to exercise

discretion does not support an inference that

plaintiffs rights to procedural due process are being

violated:

[I]t is undisputed that settlement offers,

if any, are in the discretion of the city.

Simple logic dictates that a party

cannot have a right or entitlement to a

benefit whose dispensation rests

entirely in the discretion of the city[.] . .

Accordingly, the city’s discretion to

choose whether to settle with a

claimant is not a_ constitutional

violation of procedural due process|.]

Id.

Moreover, defendants’ payment of damages to

certain tort claimants does not constitute the

granting of a “right” akin to a person’s right to, e.g.,

a license issued by a government zoning board or the

receipt of welfare benefits. In each of these

circumstances a governmental unit, although not

App. 38

constitutionally required to do so, has extended a

right to its citizens, subject to conditions articulated

by statute or ordinance. However, in the present

case, no “right” to compensation is identified. Where

the existence of a right is clearly established, its

administration may not depend on the whim or

unlimited discretion of a government official.

Dobrowolska v. Wall, 138 N.C. App. 1, 530 S.E.2d

590 (2000). However, Dobrowolska did not hold that,

whenever a state or local governmental employee

takes any action, makes a decision, or compensates a

citizen for any loss, that a new “right” is thereby

established, or that such decisions are per se

unconstitutional if they are discretionary decisions

by a government employee.

In the instant case, I conclude that plaintiffs

failed to allege facts that would support an inference

that they enjoyed a constitutionally protected right

to compensation by defendants. The factual

allegations of plaintiffs’ compiaint, reduced to their

essentials, are that:

1. Defendants examine tort claims against

them to ascertain the applicability of

the affirmative defense of governmental

immunity to the facts of the case.

2. Defendants customarily pay damages to

some tort claimants, but not to all of

them.

3. Defendants have the power to decide if

and how they will offer a settlement to

a tort claimant.

App. 39

4. Defendants paid part of the damages

asserted by plaintiffs, but not the whole

claim.

These facts do not give rise to liability, and the

remaining paragraphs from plaintiffs’ complaint

cited above consist of unwarranted legal conclusions

that plaintiffs attempt to draw from these facts. For

example, plaintiffs make the conclusory statements

that defendants’ conduct violates their rights to

substantive due process, and that defendants

violated their rights under the Equal Protection

Clause by denying their claim but paying damages to

“similarly situated” claimants.

It is true that appropriate factual allegations

can support a claim of violation of Equal Protection

rights, based on disparate treatment of similarly

situated individuals:

[Mjost laws differentiate in some

fashion between classes of persons. The

Equal Protection Clause . . . simply

keeps governmental decisionmakers

from treating differently persons who

are in all relevant respects alike.

Branson, __ N.C. App. __, 613 S.E.2d at 272 (quoting

Nordlinger v. Hahn, 505 U.S. 1, 10, 120 L. Ed. 2d 1,

12 (1992)). However, in the instant case, as in

Branson, plaintiffs “[did) not identify any

classification upon which [they were] denied equal

protection|[,] . . . [or allege] the use of any inherently

suspect criteria, such as race, religion, or disability

status.” Branson, id. Indeed, plaintitts wholly faii to

App. 40

indicate, even in the most general terms, the kind of

discrimination they allege, or the nature of the

“relevant respects” in which other tort claimants

were allegedly “similarly situated.” Consequently,

the allegations of their complaint provide no notice

to defendants as to what actions or transactions are

allegedly discriminatory. Do plaintiffs mean to

suggest that defendants only compensate tort

claimants if they are from a particular part of the

county; are school employees; belong to a particular

political party; are of a certain race or gender; go to

church with a school board member; or only if the

damages claimed are below a certain amount?

Because plaintiffs fail to allege any facts, there is no

way to know.

The standard for sufficiency of a complaint

under our theory of “notice pleading” has been stated

as follows:

In order for plaintiffs’ complaint to have

withstood defendant’s motion to

dismiss, the complaint must .. . provide

defendant sufficient notice of the

conduct on which the claim is based to

enable defendant to respond and

prepare for trial[.|... For the purpose

of ruling on a motion to dismiss...

conclusions of law or unwarranted

deductions of fact are not admitted.

Under the notice theory of pleadings, a

statement of claim is adequate if it

gives sufficient notice of the claim

asserted to enable the adverse party to

answer and prepare for triall.

App. 41

Hill v. Perkins, 84 N.C. App. 644, 647, 353 S.E.2d

686, 688 (1987) (emphasis added) (citations omitted).

“In reviewing a dismissal of a complaint for failure

to state a claim, the appellate court must determine

whether the complaint alleges the substantive

elements of a legally recognized claim and whether it

gives sufficient notice of the events which produced

the claim to enable the adverse party to prepare for

trial.” Toomer v. Garrett, 155 N.C. App. 462, 468,

574 S.E.2d 76, 83 (2002) (quoting Brandis v.

Lightmotive Fatman, Inc., 115 N.C. App. 59, 62, 443

S.E.2d 887, 888 (1994)).

In the instant case, the “fallacy with plaintiffs’

. complaint, is that statements of law...

substitute for alleging sufficient facts from which it

may be determined what liability forming conduct is

being complained of and what injury piaintiffs have

suffered.” Hill, 84 N.C. App. at 648, 353 S.E.2d at

689. I conclude that plaintiffs failed to state a claim

for violation of their equal protection rights, even

under the liberal standards of notice pleading.

Finally, I respectfully observe that the

majority opinion’s statement that the “allegations [in

the complaint] amount to more than ‘conclusory,

unwarranted deductions of fact, or unreasonable

inferences” fails to meet the legal implications of

Branson. I conclude that, under Branson and cases

cited therein, plaintiffs failed to allege facts that, if

proved, would entitle them to relief under their

constitutional claims. Accordingly, I would uphold

the trial court’s dismissal of plaintiffs’ constitutional

claims.

App. 42

COURT OF APPEALS OF NORTH CAROLINA

NO. COA02-1309

Filed: 17 June 2003

MICHAEL G. RIPELLINO, LOUISE A. RIPELLINO

AND NICOLE RIPELLINO, Plaintiffs v. THE

NORTH CAROLINA SCHOOL BOARDS

ASSOCIATION, INCORPORATED; NORTH

CAROLINA SCHOOL BOARDS TRUST, a division

and/or department of, created and administered by,

THE NORTH CAROLINA SCHOOL BOARDS

ASSOCIATION, INCORPORATED; 1982 NORTH

CAROLINA SCHOOL BOARDS ASSOCIATION

SELF-FUNDED TRUST FUND, a division and/or

department of, created and administered by, THE

NORTH CAROLINA SCHOOL BOARDS

ASSOCIATION, INCORPORATED; 1986 NORTH

CAROLINA SCHOOL BOARDS ASSOCIATION

SELF-FUNDED ERRORS AND

OMISSIONS/GENERAL LIABILITY TRUST FUND,

a division and/or department of, created and

administered by, THE NORTH CAROLINA

SCHOOL BOARDS ASSOCIATION,

INCORPORATED; 1997 NORTH CAROLINA

SCHOOL BOARDS ASSOCIATION SELF-FUNDED

AUTO/JINLAND MARINE TRUST FUND, a division

and/or department of, created and administered by,

THE NORTH CAROLINA SCHOOL BOARDS

ASSOCIATION, INCORPORATED, and THE

JOHNSTON COUNTY BOARD OF EDUCATION,

Defendants

App. 43

Z, Discovery--deposition of witness--motion for

continuance

The trial court did not err in a personal injury

case by denying plaintiffs’ motion for a continuance

to depose a witness, because plaintiffs failed to show

that new information relevant to the limited issue

presented in the summary judgment hearing

regarding immunity and waiver of immunity would

be discovered.

z Immunity--sovereign--local school

board--purchase of insurance--waiver

Although the trial court did not err in a

personal injury case by granting summary judgment

in favor of defendants on the ground of sovereign

immunity for claims less than $100,000 and greater

than $1,000,000 based on the fact that defendant

local school board’s participation in the North

Carolina School Boards Trust (NCSBT) did not

qualify as a purchase of insurance under N.C.G:S. §

115C-42 causing defendant to waive its immunity,

the trial court crred by granting summary judgment

for claims in excess of $100,000 and under

$1,000,000 pursuant to excess insurance coverage

purchased by defendant local board of education.

3. Immunity--sovereign--local school

board--estoppel

Defendant local beard of education is not

estopped from claiming sovereign immunity in a

personal injury case even though defendant paid

plaintiffs for property damage, because: (i) ihe

App. 44

General Assembly determines when and under what

circumstances the State and its political subdivisions

may be sued; and (2) the concept of sovereign

immunity is so firmly established that it should not

and cannot be waived by indirection or by procedural

rule.

4, Civil Rights--section 1983 claim--

sovereign immunity defense inapplicable

The trial court erred in a personal injury case

by granting summary judgment in favor of

defendant local board of education on plaintiffs’ §

1983 claim, because defendant may not assert a

defense of sovereign immunity against plaintiffs’

constitutional § 1983 claim even though plaintiffs

may not be entitled to monetary relief under this

section against defendant on grounds other than

sovereign immunity.

5. Damages and Remedies--punitive

damages--governmental entity immune

Defendant local board of education is immune

from a claim for punitive damages because the board

is a governmental entity.

6. Civil Procedure--summary judgment--

contingent upon claims against other defendants

The trial court did not err in a personal injury

case by granting summary judgment in favor of the

trust defendants when those defendants did not

move for summary judgment and did not participate

in the summary judgment hearing because plaintiffs’

App. 45

claims against those defendants are related to and

contingent upon the claims against defendant local

board of education.

Appeal by plaintiffs from judgment entered 15

March 2002 by Judge Knox V. Jenkins, Jr. in

Johnston County Superior Court. Heard in the

Court of Appeals 15 May 2003.

Mast, Schulz, Mast, Mills, Stem & Johnson,

P.A., by Bradley N. Schulz and Don R. Wells,

for plaintiffs.

Yates, McLamb & Weyher, LLP, by Barbara B.

Weyher, for the Trust defendants.

Cranfill, Sumner & Hartzog, LLP, by

Stephanie Hutchins Autry, for Johnston

County Board of Education.

Brooks, Pierce, McLendon, Humphrey &

Leonard, L.L.P., by Jill R. Wilson, for North

Carolina Council of School Attorneys, amicus

curiae.

Ferguson Stein Chambers Wallas Adkins

Gresham & Sumter, P.A., by S. Luke Largess,

for North Carolina Academy of Trial Lawyers,

amicus curiae.

TYSON, Judge.

Michael G. Ripellino, Louise A. Ripellino, and

Nicole Ripellino (“Nicole”) (collectively “plaintiffs”)

appeal from an entry of summary judgment in favor

App. 46

of all defendants. We affirm in part, reverse in part,

and remand.

I. Background

At the end of classes on 9 March 1998, Nicole

was departing from Clayton High School in Johnston

County in her parent’s vehicle. A traffic control gate

owned by the Johnston County Board of Education

(“Board”) swung closed, struck the vehicle, and

injured Nicole. In October 1998, the Ripellinos were

paid $2,153.18 for property damage. The Board

refused to pay medical expenses or other

compensation.

On 26 March 2001 and amended on 6 April

2001, plaintiffs filed suit against the Board, and The

North Carolina School Boards Association, Inc., and

The North Carolina School Board Trust and its self-

funded trusts (“trust defendants”). Plaintiffs alleged

(1) a negligent personal injury claim against the

Board on the part of Nicole, (2) a medical expenses

claim on the part of Nicole’s parents against the

Board, (3) declaratory judgment that immunity had

been waived through (a) participation in the trust

and (b) the payment of property damages, (4) unfair

and deceptive trade practices against all defendants,

(5) 42 U.S.C. § 1983 claim (“§ 1983 claim”) and

constitutional claims against all defendants, and (6)

punitive damages.

Upon motion of the Board, the trial court

bifurcated the trial allowing the issues of whether

the Board was immune from suit and whether the

Board had waived sovereign immunity to be resolved

App. 47

while the other claims were stayed. Based upon

discovery affidavits, plaintiffs requested the

deposition of Tom Davis.

On 19 February 2002, the trial court held a

hearing regarding plaintiffs’ request to depose Davis.

At the end of the hearing, the trial court orally ruled

that because the trial was bifurcated and there was

nothing new to which Davis would be able to testify

regarding immunity, plaintiffs would not be

permitted to depose Davis.

The hearing on the Board’s motion for

summary judgment was continued until 8 March

2002. After the hearing, the trial court granted

summary judgment in favor of all defendants on all

claims. Plaintiffs appeal from both the denial of the

request for deposition of Davis and the grant of

summary judgment to all defendants on all issues.

II. Issues

Plaintiffs contend the trial court erred in (1)

preventing plaintiffs from deposing Davis, (2)

granting summary judgment to the Board when the

Board waived immunity by purchasing insurance, (3)

granting summary judgment for the Board when the

Board was estopped from denying payment of the

claim, (4) granting summary judgment on the

constitutional issues and the § 1983 claims, and (5)

granting summary judgment to the _ Trust

defendants.

App. 48

II. Deposition of Davi

[1] Plaintiffs contend the trial court erred in

denying their request to depose Davis. We disagree.

Rule 56 of the Rules of Civil Procedure

provides:

(f) When affidavits are unavailable.

-- Should it appear from the affidavits

of a party opposing the motion that he

cannot for reasons stated present by

affidavit facts essential to justify his

opposition, the court may refuse the

application for judgment or may order a

continuance to permit affidavits to be

obtained or depositions to be taken or

discovery to be had or may make such

other order as is just.

N.C. Gen. Stat. § 1A-1, Rule 56(f). To prevail on a

Rule 56(f) motion, the moving party has the burden

of showing why additional discovery is necessary and

how that discovery will create a genuine issue of

material fact. See e.g., Becerra v. Asher, 105 F.3d

1042, 1048, cert. denied, 522 U.S. 824, 139 L. Ed. 2d

40 (1997).

Because of the previously bifurcated discovery

and trial, the only issues open for discovery and the

summary judgment hearing were immunity and

waiver of immunity. On appeal, plaintiffs contend

that “Davis’ deposition is necessary to determine the

nature of the Board’s interaction with Trust

Defendants, as well as the arbitrary payment by the

App. 49

Board of claims.” The Board had already provided

through discovery a list of claims paid by the Board

and that no claims had been paid by the Trust. The

trial court did not err in denying plaintiffs’ motion

for a continuance to depose Davis when they failed to

show that new information relevant to the limited

issue presented in the summary judgment hearing

would be discovered. This assignment of error is

overruled.

A. Mem Cemetintionsd Ciel

“As a general rule, the doctrine of

governmental, or sovereign immunity bars action

against, inter alia, the state, its counties, and its

public officials sued in their official capacity.”

Herring ex rel. Marshall v. Winston-Salem/Forsyth

Bd. of Educ., 137 N.C. App. 680, 683, 529 S.E.2d

458, 461, disc. rev. denied, 352 N.C. 673, 545 S.E.2d

423 (2000) (citations omitted). “A local board of

education is immune from suit and may not be liable

in a tort action unless the Board has duly waived its

governmental immunity.” Hallman v. Charlotte-

Mecklenburg Bd. Of Educ., 124 N.C. App. 435, 437,

477 S.E.2d 179, 180 (1996). The General Assembly

has provided a means for a local board of education

to waive immunity through N.C. Gen. Stat. § 115C-

42 (2001), which provides in part:

Any local board of education, by

securing liability insurance as

hereinafter provided. is hereby

authorized and empowered to waive its

App. 50

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.

The statute expressly defines how a local board may

procure insurance and from whom it may be

procured:

Any contract of insurance purchased

pursuant to this section shall be issued

by a@ company or corporation duly

licensed and authorized to execute

insurance contracts in this State or by a

qualified insurer as determined by the

Department of Insurance and shall by

its terms adequately insure the local

board of education against liability for

damages by reason of death or injury to

person or property proximately caused

by the negligent act or torts of the

agents and employees of said board of

education or the agents and employees

of a particular school in a _ local

App. 51

administrative unit when acting within

the scope of their authority.

(Emphasis supplied). N.C. Gen. Stat. § 115C-42.

N.C. Gen. Stat. § 115C-42 is the exclusive

means of a local board of education to waive

immunity. Lucas v. Swain County Bd. of Educ., 154

N.C. App. 357, 361, 573 S.E.2d 538, 541 (2002). “The

Courts of North Carolina have applied a rule of strict

construction to statutes authorizing waiver of

sovereign immunity.” Hallman, 124 N.C. App. at

438, 477 S.E.2d at 181. As a local board of

education, the Board is immune from suit in a tort

action unless it waived immunity.

1. Participation in the Trust

[2] Plaintiffs argue the Board’s participation

in the North Carolina School Boards Trust

(“NCSBT”) qualified as a purchase of insurance

under N.C. Gen. Stat. § 115C-42 and waived the

Board’s immunity. We disagree.

Our Court has recently determined that “the

only way a plaintiff can establish that a board has

waived its immunity is by showing the contract of

insurance was issued by (1) an entity licensed and

authorized to execute insurance contracts in this

State; or (2) a qualified insurer as determined by the

Department of Insurance.” Lucas, 154 N.C. App. at

361, 573 S.E.2d at 541. Plaintiffs have failed to

forecast evidence that NCSBT meets either of these

requirements.

App. 52

The NCSBT provides:

local boards of education’ the

opportunity to budget funds for the

purpose of paying all or part of a Claim

made or any civil judgment entered

against any of its members or

employees or former members or

employees, when such a Claim is made

or such judgment is rendered as

Damages on account of any act done or

omission made, or any act allegedly

done or omission allegedly made, in the

scope or their duties as members of the

local board of education or as

employees. NCSBT does not provide

any coverage for any Claim which could

not be paid by a local board of education

pursuant to G.S.115C-43(b) or successor

statute. The NCSBT Coverage

Agreement is not a contract of

insurance by a company or corporation

duly licensed and authorized to execute

insurance contracts in this State or by a

qualified insurer as determined by the

Department of Insurance. Therefore,

the NCSBT Coverage Agreement

expressly is not considered a waiver of

governmental immunity as provided in

G.S.115C-42.

The policy states that the fund provides general

liability coverage and errors and omissions coverage

of $100,000 for each claim made and excess

insurance limits of $900,000 for each claim made

App. 53

totaling $1,000,000 coverage. Excess insurance is

defined as “insurance purchased by NCSBT that

provides coverage over and above the Fund limits as

shown in the Declarations.” To the extent the excess

insurance policy provides coverage, the Board

waived immunity.

The trial court erred in granting summary

judgment on the grounds of sovereign immunity for

claims in excess of $100,000 and under $1,000,000

pursuant to the excess insurance coverage. The trial

court did not err in granting summary judgment in

favor of the Board for claims less than $100,000 and

2. Estoppel

[3] Plaintiffs contend the Board is estopped

from claiming governmental immunity when the

Board paid plaintiffs for property damage. We

disagree.

A waiver of sovereign immunity must be

established by the General Assembly. Wood uv. N.C.

State Univ., 147 N.C. App. 336, 338, 556 S.E.2d 38,

40 (2001). “Our Supreme Court has stated that ‘it is

for the General Assembly to determine when and

under what circumstances the State [and its political

subdivisions] may be sued.” Jd. (quoting Guthrie,

307 N.C. at 534, 299 S.E.2d at 625). “The concept of

sovereign immunity is so firmly established that it —

should not and cannot be waived by indirection or by

procedural rule. Any such change should be by

plain, unmistakable mandate of the lawmaking

body.” Id.

App. 54

If a court could estop the Board from asserting

an otherwise valid defense of sovereign immunity,

“then, effectively, that court, rather than the

General Assembly, would be waiving [the Board’s]

sovereign immunity.” Id. at 347, 556 S.E.2d at 45.

B. Constitutional Claims

[4] Plaintiffs contends the trial court erred in

granting summary judgment in favor of the Board on

the § 1983 claim. We agree.

Section 1983 provides “Every person who,

under color of any statute, ordinance, regulation,

custom, or usage, of any State or Territory or the

District of Columbia, subjects, or causes to be

subjected, any citizen of the United States or other

person within the jurisdiction thereof to the

deprivation of any rights, privileges, or immunities

secured by the Constitution and laws, shall be liable

to the party injured in an action at law, suit in

equity, or other proper proceeding to redress.” 42

U.S.C. § 1983 (2000). Our Supreme Court has held

that the State of North Carolina and its agencies are

not “persons” within the meaning of section 1983

and could not be sued for monetary damages under

that statute. Corum v. University of North Carolina,

330 N.C. 761, 789, 413 S.E.2d 276, 293, cert. denied,

506 U.S. 985, 121 L. Ed. 2d 431 (1992).

Municipalities are considered persons and subject to

suit under § 1983 for monetary damages.

The United States Supreme Court has held

that the legislature intended for “municipalities and

other local government units to be included among

App. 55

those persons to whom § 1983 applies.” Monell v.

Department of Social Servs., 436 U.S. 658, 690, 56 L.

Ed. 2d 611, 635 (1978). “Local governing bodies ...

can be sued directly under § 1983 for monetary,

declaratory, or injunctive relief where ... the action

that is alleged to be unconstitutional implements or

executes a policy statement, ordinance, regulation,

or decision officially adopted and promulgated by

that body’s officers.” Jd.

“A county may not claim sovereign immunity

as a defense to a section 1983 claim if the violation of

federal rights is caused by the county’s official policy,

such as the implementation of an ordinance or a

decision officially adopted by the board of county

commissioners.” Peverall v. County of Alamance,

154 N.C. App. 426, 432, 573 S.E.2d 517, 521 (2002).

Plaintiffs alleged that the Board, the local

governing body for the school system, has

unconstitutionally paid some claims while asserting

immunity on others in violation of plaintiffs’ equal

protection and due process rights. Plaintiffs showed

through discovery that claims had been paid by the

Board, including partial payment to plaintiffs.

The Board may not assert a defense of

sovereign immunity against plaintiffs’ constitutional

§ 1983 claims. We note that plaintiffs may not be

entitled to monetary relief pursuant to section 1983

against defendant on grounds other than sovereign

immunity. Id. (citing Messick v. Catawba County,

110 N.C. App. 707, 713-14, 431 S.E.2d 489, 493, disc.

rev. denied, 334 N.C. 621, 4285 S.E.2d 336 (1993)

(holding that, because a county is not a “person” for

App. 56

purposes of a section 1983 claim, it cannot be sued

where the remedy sought is monetary damages)). As

this appeal is limited to issues of sovereign

immunity, we do not address the merits of such an

argument. The trial court erred in granting

summary judgment in favor of defendants on the §

1983 and constitutional claim.

C. Punitive Damages

[5] Plaintiffs asserted a claim of punitive

damages against defendants. “Punitive damages by

definition are not intended to compensate the

injured party, but rather to punish the tortfeasor

whose wrongful action was intentional or malicious,

and to deter him and others from similar extreme

conduct.” Long v. City of Charlotte, 306 N.C. 187,

207, 293 S.E.2d 101, 114 (1982). Usually, the

individual wrongdoer himself is made to suffer for

his conduct. Here, it is the governmental entity. /d.

In Long, our Supreme Court held that public

policy, in the absence of statutory provisions to the

contrary, provides that municipal corporations are

immune from punitive damages. Id. We find the

rational in Long persuasive, and hold that the

Board, as a governmental entity, is immune from

punitive damages.

V. Trust Defendants

[6] Plaintiffs contend the trial court erred in

granting summary judgment to the trust defendants

when the trust defendants did not move for

App. 57

summary judgment and did not participate in the

summary judgment hearing.

Plaintiffs’ claims against the trust defendants

are related to and contingent upon the claims

against the Board. To the extent the trial court

properly granted summary judgment in favor of the

Board, the claims against the trust defendants were

also properly granted.

VII. Conclusion

The trial court erred in granting summary

judgment on the grounds of immunity as to the

constitutional claims against all defendants and as

to the non-constitutional claims to the extent there

was excess liability insurance for claims between

$100,000 to $1,000,000 dollars. The trial court

properly granted summary judgment to defendants

on claims of less than $100,000 and for punitive

damages.

Affirmed in part, reversed in part and

remanded.

Judges MCGEE and CALABRIA concur.

App. 58

STATE OF NORTH CAROLINA

JOHNSTON COUNTY

IN THE GENERAL COURT OF JUSTICE

SUPERIOR COURT DIVISION

01 CVS 609

[FILED March 15, 2002]

MICHAEL G. RIPELLINO, LOUISE A. RIPELLINO

AND NICOLE RIPELLINO,

Plaintiffs,

vs.

THE NORTH CAROLINA SCHOOL BOARDS

ASSOCIATION, INCORPORATED; NORTH

CAROLINA SCHOOL BOARDS TRUST, a division

and/or department of, created and administered by,

THE NORTH CAROLINA SCHOOL BOARDS

ASSOCIATION, INCORPORATED; 1982 NORTH

CAROLINA SCHOOL BOARDS ASSOCIATION

SELF-FUNDED TRUST FUND, a division and/or

department of, created and administered by, THE

NORTH CAROLINA SCHOOL -»BOARDS

ASSOCIATION, INCORPORATED; 1986 NORTH

CAROLINA SCHOOL BOARDS ASSOCIATION

SELF-FUNDED ERRORS AND

OMISSIONS/GENERAL LIABILITY TRUST FUND,

a division and/or department of, created and

administered by, THE NORTH CAROLINA

SCHOOL BOARDS ASSOCIATION,

INCORPORATED; 1997 NORTH CAROLINA

SCHOOL BOARDS ASSOCIATION SELF-FUNDED

App. 59

AUTOANLAND MARINE TRUST FUND, a division

and/or department of, created and administered by,

THE NORTH CAROLINA SCHOOL BOARDS

ASSOCIATION, INCORPORATED, and THE

JOHNSTON COUNTY BOARD OF EDUCATION,

Defendants.

ORDER GRANTING SUMMARY JUDGMENT

THIS CAUSE COMING ON TO BE HEARD

upon motion of the defendant, The Johnston County

Board of Education; and it appearing to the Court

from the pleadings, Answers to Interrogatories,

Request for Production of Documents and Request

for Admissions, and the briefs and other materials

presented to the Court, together with the arguments

of counsel and the issues raised by counsel during

argument, that there is no genuine issue as to any

material fact and that the defendants are entitled to

judgment as a matter of law as to all claims against

them;

IT IS HEREBY ORDERED, ADJUDGED

AND DECREED that the plaintiffs’ claims against

the defendants be, and they therefore are, dismissed.

This the /15/ day of March, 2002.

/s/Knox V. Jenkins, Jr.

The Honorable Knox V. Jenkins, Jr.

Superior Court Judge Presiding

App. 60

No. 180A06 ELEVEN-B DISTRICT

SUPREME COURT OF NORTH CAROLINA

(Ripellino v Board of Education)

MICHAEL G._ RIPELLINO, LOUISE A.

RIPELLINO, AND NICOLE RIPELLINO

Vv

THE NORTH CAROLINA SCHOOL BOARDS

ASSOCIATION, INCORPORATED; NORTH

CAROLINA SCHOOL BOARDS TRUST, A

DIVISION AND/OR DEPARTMENT OF, CREATED

AND ADMINISTERED BY, THE NORTH

CAROLINA SCHOOL BOARDS ASSOCIATION,

INCORPORATED; 1982 NORTH CAROLINA

SCHOOL BOARDS ASSOCIATION SELF-FUNDED

TRUST FUND, A_ DIVISION AND/OR

DEPARTMENT OF, CREATED AND

ADMINISTERED BY, THE NORTH CAROLINA

SCHOOL BOARDS ASSOCIATION,

INCORPORATED; 1986 NORTH CAROLINA

SCHOOL BOARDS ASSOCIATION SELF-FUNDED

ERRORS AND OMISSIONS/GENERAL LIABILITY

TRUST FUND, A_ DIVISION AND/OR

DEPARTMENT OF, CREATED AND

ADMINISTERED BY, THE NORTH CAROLINA

SCHOOL BOARDS ASSOCIATION,

INCORPORATED; 1997 NORTH CAROLINA

SCHOOL BOARDS ASSOCIATION SELF-FUNDED

AUTO/JINLAND MARINE TRUST FUND, A

DIVISION AND/OR DEPARTMENT OF, CREATED

AND ADMINISTERED BY, THE NORTH

App. 6]

CAROLINA SCHOOL BOARDS ASSOCIATION,

INCORPOF “ED; AND THE JOHNSTON

COUNTY Bu 2D OF EDUCATION

From NC Court of Appeals

(COA04-1681)

From Johnston

(01CVS609)

ORDER

Upon consideration of the petition for

discretionary review, filed by Defendant (N.C. School

Boards Association, et al.) on the 11th day of April

2006 in this matter pursuant to G.S. 7A-31 and the

Appellate Rule 16(b) as to issues in addition to those

presented as the basis for the dissenting opinion in

the Court of Appeals, the following order was

entered and is hereby certified to the North Carolina

Court of Appeals: the petition for discretionary

review as to additional issues is

"Allowed by order of the Court in

conference, this the 29th day of

June 2006.

s/ Timmons-Goodson, J.

For the Court"

Accordingly, the new brief of the Defendant

(N.C. School Boards Association, et al.) shall be filed

with this Court not more than 30 days from the date

of certification of this order.

App. 62

No. 180A06 ELEVEN-B DISTRICT

WITNESS my hand and the seal of the

Supreme Court of North Carolina, this the 30th day

of June 2006.

/s/ Christie Speir Cameron

Christie Speir Cameron

Clerk, Supreme Court of North Carolina

Copy to:

North Carolina Court of Appeals

Mr. Ralph A. White, Appellate Reporter (By E-Mail)

Ms. Stephanie H. Autry, Attorney at Law, For

Johnston County Bd. of Ed.

Ms. Rachel B. Esposito, Attorney at Law, for

Johnston County Bd. of Ed.

Ms. Meredith T. Black, Attorney at Law, for

Johnston County Bd. of Ed.

Mr. James R. Lawrence, Jr., Attorney at Law, For

Johnston County Bd. of Ed. (by E-Mail)

Mr. Bradley N. Schulz, Attorney at Law, For

Michael Ripellino, et al (by E-Mail)

Ms. Barbara B. Weyher, Attorney at Law, For School

Boards Asso., et al (by E-Mail)

Mr. T. Carlton Younger, III, Attorney at Law, for

School Boards, et al

West Publishing Company (By E-mail)

Lexis-Nexis (By E-mail)

LOIS Law (By E-mail)

App. 63

No. 180A06 ELEVEN-B DISTRICT

SUPREME COURT OF NORTH CAROLINA

[FILED June 30, 2006]

(Ripellino v Board of Education)

MICHAEL G. RIPELLINO, LOUISE A.

RIPELLINO, AND NICOLE RIPELLINO

Vv

THE NORTH CAROLINA SCHOOL BOARDS

ASSOCIATION, INCORPORATED; NORTH

CAROLINA SCHOOL BOARDS TRUST, A

DIVISION AND/OR DEPARTMENT OF, CREATED

AND ADMINISTERED BY, THE NORTH

CAROLINA SCHOOL BOARDS ASSOCIATION,

INCORPORATED; 1982 NORTH CAROLINA

SCHOOL BOARDS ASSOCIATION SELF-FUNDED

TRUST FUND, A_ DIVISION AND/OR

DEPARTMENT OF, CREATED AND

ADMINISTERED BY, THE NORTH CAROLINA

SCHOOL BOARDS ASSOCIATION,

INCORPORATED; 1986 NORTH CAROLINA

SCHOOL BOARDS ASSOCIATION SELF-FUNDED

ERRORS AND OMISSIONS/GENERAL LIABILITY

TRUST FUND, A_ DIVISION AND/OR

DEPARTMENT OF, CREATED AND

ADMINISTERED BY, THE NORTH CAROLINA

SCHOOL BOARDS ASSOCIATION,

INCORPORATED; 1997 NORTH CAROLINA

SCHOOL BOARDS ASSOCIATION SELF-FUNDED

AUTO/INLAND MARINE TRUST FUND, A

App. 64

DIVISION AND/OR DEPARTMENT OF, CREATED

AND ADMINISTERED BY, THE NORTH

CAROLINA SCHOOL BOARDS ASSOCIATION,

INCORPORATED; AND THE JOHNSTON

COUNTY BOARD OF EDUCATION

From NC Court of Appeals

(COA04-1681)

From Johnston

(01CVS609)

ORDER

Upon consideration of the notice of appeal

from the North Carolina Court of Appeals, filed by

Defendant (Johnston County Board of Education) on

the 6th day of April 2006 in this matter pursuant to

G.S. 7A-30 (substantial constitutional question), the

following order was entered and is hereby certified to

the North Carolina Court of Appeals: the notice of

appeal is

"Dismissed Ex Mero Motu by order of

the Court in conference, this the 29th

day of June 2006.

s/ Timmons-Goodson, J.

For the Court"

Upon consideration of the petition for

discretionary review, filed by Defendant (Johnston

County Board of Education) on the 6th day of April

2006 in this matter pursuant to G.S. 7A-31 and the

Appellate Rule 16(b) as to issues in addition to those

presented as the basis for the dissenting opinion in

App. 65

the Court of Appeals, the following order was

entered and is hereby certified to the North Carolina

Court of Appeals: the petition for discretionary

review as to additional issues is

"Allowed by order of the Court in

conference, this the 29th day of June

2006.

s/, J.

For the Court"

Accordingly, the new brief of the Defendant

(Johnsto1 County Board uf Education) shall be filed

with this Court not more than 30 days from the date

of certification of this order.

App. 66

No. 180A06 ELEVEN-B DISTRICT

WITNESS my hand and the seal of the

Supreme Court of North Carolina, this the 30th day

of June 2006.

s/CHRISTIE S CAMERON

Christie Speir Cameron

Clerk, Supreme Court of North Carolina

Copy to:

North Carolina Court of Appeals

Mr. Ralph A. White, Appellate Reporter (By E-Mail)

Ms. Stephanie H. Autry, Attorney at Law, For

Johnston County Bd. of Ed.

Ms. Rachel B. Esposito, Attorney at Law, for

Johnston County Bd. of Ed.

Ms. Meredith T. Black, Attorney at Law, for

Johnston County Bd. of Ed.

Mr. James R. Lawrence, Jr., Attorney at Law, For

Johnston County Bd. of Ed. (by E-Mail)

Mr. Bradley N. Schulz, Attorney at Law, For

Michael Rlpellino, et al (by E-Mail)

Ms. Barbara B. Weyher, Attorney at Law, For School

Boards Asso., et al (by E-Mail)

Mr. T. Carlton Younger, III, Attorney at Law, for

School Boards, et al

West Publishing Company (By E-mail)

Lexis-Nexis (By E-mail)

LOIS Law (By E-mail)

App. 67

STATE OF NORTH CAROLINA

JOHNSTON COUNTY

IN THE GENERAL COURT OF JUSTICE

SUPERIOR COURT DIVISION

01 CVS 609

[FILED September 9, 2004]

MICHAEL G. RIPELLINO, LOUISE A. RIPELLINO

AND NICOLE RIPELLINO,

Plaintiffs,

vs.

THE NORTH CAROLINA SCHOOL BOARDS

ASSOCIATION, INCORPORATED; NORTH

CAROLINA SCHOOL BOARDS TRUST, a division

and/or department of, created and administered by,

THE NORTH CAROLINA SCHOOL BOARDS

ASSOCIATION, INCORPORATED; 1982 NORTH

CAROLINA SCHOOL BOARDS ASSOCIATION

SELF- FUNDED TRUST FUND, a division and/or

department of, created and administered by, THE

NORTH CAROLINA SCHOOL BOARDS

ASSOCIATION, INCORPORATED; 1986 NORTH

CAROLINA SCHOOL BOARDS ASSOCIATION

SELF-FUNDED ERRORS AND

OMISSIONS/GENERAL LIABILITY TRUST FUND,

a division and/or department of, created and

administered by, THE NORTH CAROLINA

SCHOOL BOARDS ASSOCIATION,

INCORPORATED; 1997 NORTH CAROLINA

App. 68

SCHOOL BOARDS ASSOCIATION SELF-FUNDED

AUTO/INLAND MARINE TRUST FUND, a division

and/or department of, created and administered

by, THENORTH CAROLINA SCHOOL BOARDS

ASSOCIATION, INCORPORATED, and THE

JOHNSTON COUNTY BOARD OF EDUCATION,

Defendants.

ORDER GRANTING SUMMARY JUDGMENT

AND JUDGMENT ON THE PLEADINGS FOR

TRUST DEFENDANTS

THIS CAUSE COMING ON TO BE HEARD

upon motion of the defendants denominated in the

Complaint as, "The North Carolina School Boards

Association, Incorporated; North Carolina School

Boards Trust, a division and/or Department of,

created and administered by, The North Carolina

School Boards Association, Incorporated; 1982 North

Carolina School Boards Association Self-Funded

Trust Fund, a division and/or department of, created

and administered by, The North Carolina School

Boards Association, Incorporated; 1986 North

Carolina School Boards Association Self-Funded

Errors and Omissions/General Liability Trust Fund,

a division and/or department of, created and

Administered by, The North Carolina School Boards

Association, Incorporated; 1997 North Carolina

School Boards Association Self-Funded Auto/Inland

Marine Trust Fund, a division and/or department of,

created and administered by, The North Carolina

School Boards Association, Incorporated"

(collectively "Trust Defendants"), for summary

judgment pursuant to Rule 56 of the North Carolina

Rules of Civil Procedures as to all non-constitutional

App. 69

claims and for judgment on the pleadings pursuant

to Rule 12 (c) of the North Carolina Rules of Civil

Procedures as to all claims arising under 42 U.S.C. §

1983 and the North Carolina Constitution

(hereinafter, "the constitutional claims");

AND IT APPEARING to the Court from the

entire record, including the pleadings, discovery,

affidavits, and the briefs and other materials

presented to the Court, together with the arguments

of counsel and the issues raised by counsel during

argument, that there is no genuine issue as to any

material fact as to the non-constitutional claims and

that the Trust Defendants are entitled to judgment

as a matter of law as to all non-constitutional claims

against them pursuant to Rule 56;

AND IT FURTHER APPEARING to the Court

from the pleadings and the briefs and arguments of

counsel that there is no genuine issue as to any

material fact as to the constitutional claims and that

the Trust Defendants are entitled to judgment on

the pleadings as a matter of law as to the

constitutional claims against them pursuant to Rule

12 (c);

IT IS HEREBY ORDERED, ADJUDGED AND

DECREED that the plaintiffs' non-constitutional

claims against the Trust Defendants be, and they

therefore are, dismissed with prejudice pursuant to

Rule 56 of the North Carolina Rules of Civil

Procedure and that the plaintiffs’ constitutional

claims against the Trust Defendants be, and they

therefore are, dismissed with prejudice pursuant to

App. 70

Rule 12 (c) of the North Carolina Rules of Civil

Procedure.

This the /8/ day of /September/, 2004.

/s/Knox V. Jenkins, Jr.

The Honorable Knox V. Jenkins, Jr.

Superior Court Judge Presiding

App. 71

STATE OF NORTH CAROLINA

JOHNSTON COUNTY

IN THE GENERAL COURT OF JUSTICE

SUPERIOR COURT DIVISION

01 CVS 609

[FILED September 3, 2004]

MICHAEL G. RIPELLINO, LOUISE A. RIPELLINO

AND NICOLE RIPELLINO,

Plaintiffs,

vs.

THE NORTH CAROLINA SCHOOL BOARDS

ASSOCIATION, INCORPORATED; NORTH

CAROLINA SCHOOL BOARDS TRUST, a division

and/or department of, created and administered by,

THE NORTH CAROLINA SCHOOL BOARDS

ASSOCIATION, INCORPORATED; 1982 NORTH

CAROLINA SCHOOL BOARDS ASSOCIATION SELF-

FUNDED TRUST FUND, a division and/or

department of, created and administered by, THE

NORTH CAROLINA SCHOOL BOARDS

ASSOCIATION, INCORPORATED; 1986 NORTH

CAROLINA SCHOOL BOARDS ASSOCIATION SELF-

FUNDED ERRORS AND OMISSIONS/GENERAL

LIABILITY TRUST FUND, a division and/or

department of, created and administered by, THE

NORTH CAROLINA SCHOOL BOARDS

ASSOCIATION, INCORPORATED; 1997 NORTH

CAROLINA SCHOOL BOARDS ASSOCIATION SELF-

App. 72

FUNDED AUTO/INLAND MARINE TRUST FUND, a

division and/or department of, created and

administered by, THE NORTH CAROLINA SCHOOL

BOARDS ASSOCIATION, INCORPORATED, and THE

JOHNSTON COUNTY BOARD OF EDUCATION,

Defendants.

ORDER GRANTING SUMMARY JUDGMENT

AND JUDGMENT ON THE PLEADINGS FOR

DEFENDANT JOHNSTON COUNTY

BOARD OF EDUCATION

THIS CAUSE COMING ON TO BE

HEARD upon motion of the defendant, The

Johnston County Board of Education, for summary

judgment pursuant to Rule 56 as to all non-

constitutional claims and for judgment on the

pleadings pursuant to Rule 12 (c) as to all claims

arising under 42 U.S.C. § 1983 and the North

Carolina Constitution (hereinafter, “the

constitutional claims”);

AND IT APPEARING to the Court from the

entire record, including the pleadings, answers to

discovery, and the briefs, affidavits and other

materials presented to the Court, together with the

arguments of counsel and the issues raised by

counsel during “argument, that there is no genuine

issue as to any material fact as to the non-

constitutional claims and that the defendant,

Johnston County Board of Education, is entitled to

judgment as a matter of law as to all non-

constitutional claims against it pursuant to Rule 56;

App. 73

AND IT FURTHER APPEARING to the

Court from the pleadings and the briefs and

arguments of counsel that there is no genuine issue

as to any material fact as to the constitutional

claims and that the defendant, Johnston County

Board of Education, is entitled to judgment on the

pleadings as a matter of law as to the constitutional

claims against it pursuant to Rule 12 (c);

IT IS HEREBY ORDERED, ADJUDGED

AND DECREED that the plaintiffs’ non-

constitutional claims against the defendant,

Johnston County Board of Education be, and they

therefore are, dismissed with prejudice pursuant to

Rule 56 and that the plaintiffs’ constitutional claims

against the defendant, Johnston County Board of

Education be, and they therefore are, dismissed with

prejudice pursuant to Rule 12 (c).

This the /3"/ day of /Sept/, 2004.

/s/Knox V. Jenkins, Jr.

The Honorable Know V. Jenkins, Jr.

Superior Court Judge Presiding

App. 74

Supreme Court of North Carolina

No. 526P03.

[FILED] Feb. 5, 2004.

Michael G. Ripellino, Louise A. Ripellino, and

Nicole Ripellino

Ve

THE NORTH CAROLINA SCHOOL BOARDS

ASSOCIATION, Incorporated; North Carolina

School Boards Trust, a division and/or department

of, created and administered by, the North Carolina

School Boards Association, Incorporated; 1982 North

Carolina School Boards Association Self-Funded

Trust Fund, a division and/or department of, created

and administered by, the North Carolina School

Boards Association, Incorporated; 1986 North

Carolina School Boards Association Self-Funded

Errors and Omissions/General Liability Trust Fund,

a division and/or department of, created and

administered by, the North Carolina School Boards

Association, Incorporated; 1997 North Carolina

School Boards Association Self-Funded Auto/Inland

Marine Trust Fund, a division and/or department of,

created and administered by, ihe North Carolina

School Boards Association, Incorporated; and the

Johnston County Board of Education.

ORDER

Upon consideration of the petition filed by Plaintiffs

on the 18th day of September 2003 1n this matter for

App. 75

a writ of certiorari to review the decision of the North

Carolina Court of Appeals, the following order was

entered and is hereby certified to the North Carolina

Court of Appeals: "Denied by order of the Court in

_conference, this the 5th day of February 2004."

Upon consideration of the petition filed by Plaintiffs

on the 27th day of October 2003 in this matter for a

writ of certiorari to review the decision of the North

Carolina Court of Appeals, the following order was

entered and is hereby certified to the North Carolina

Court of Appeals:

"Denied by order of the Court in conference, this the

5th day of February 2004."

App. 76

NORTH CAROLINA

JOHNSTON COUNTY

IN THE GENERAL COURT OF JUSTICE

SUPERIOR COURT DIVISION

FILE NO: 01 CVS 609

[FILED April 11, 2002]

MICHAEL G.- RIPELLINO, LOUISE A.

RIPELLINO, and NICOLE RIPELLINO,

Plaintiff,

vs.

THE NORTH CAROLINA SCHOOL BOARDS

ASSOCIATIONS, INCORPORATED, NORTH

CAROLINA SCHOOL BOARDS TRUST, a

division and/or department of created administered

by THE NORTH CAROLINA SCHOOL BOARDS

ASSOCIATION, INCORPORATED 1982 NORTH

CAROLINA SCHOOL BOARDS ASSOCIATION

SELF-FUNDED ERRORS AND OMISSIONS/

GENERAL LIABILITY TRUST FUND, a division

and/or department of, created and administered by

THE NORTH CAROLINA SCHOOLS BOARDS

ASSOCIATION, INCORPORATED; 1997 NORTH

CAROLINA SCHOOL BOARDS ASSOCIATION

SELF-FUNDED AUTO-INLAND MARINE

TRUST FUND, a division and/or department of

created and administered by by THE NORTH

CAROLINA SCHOOL BOARDS ASSOCIATION

App. 77

INCORPORATED, and THE JOHNSTON

COUNTY BOARD OF EDUCATION,

Defendants.

ORDER

(OTHR)

THIS CAUSE, coming on to be heard and

being heard before the undersigned Honorable

Superior Judge presiding over the February 19, 2002

term of the Superior Court of Johnston County on

plaintiffs Motion To Continue the Summary

Judgment hearing, so as to be allowed to take the

deposition of Tom Davis; the plaintiffs were present

in court represented by their attorney of record,

Bradley N. Schulz; the Johnston County Board of

Education was represented by its attorneys of record

Stephanie Autry and James Lawrence;

And the court after hearing arguments from

counsel indicated to counsel that the undersigned

was heavily involved with the redistricting matter;

the court also heard arguments from plaintiffs that

the Affidavit of Tom Davis had been filed in support

of the School Board’s Motion For Summary

Judgment, and due to the allegations as contained in

paragraphs 7 & 8, the plaintiffs would like to take

his deposition pursuant to Rule 56; after reviewing

the file and hearing arguments of counsel, the court

determined that the Summary Judgment Hearing

should be continued and that the plaintiffs should

not be allowed to take the deposition of Mr. Tom

Davis

App. 78

IT IS THEREFORE ORDERED, ADJUDGED

AND DECREED that the Johnston County Board of

Education’s Motion For Summary Judgment shall be

heard by the undersigned on Friday, March 8, 2002,

at 10:00 a.m., and that the plaintiffs are prohibited

from taking the deposition of Mr Tom Davis.

Entered in open court the 19" day of February,

2002, and signed this the /11/ day of April, 2002.

/s/Knox V. Jenkins, Jr.

Hon. Knox V. Jenkins, Jr.

Superior Court Judge Presiding

App. 79

STATE OF NORTH CAROLINA

JOHNSTON COUNTY

IN THE GENERAL COURT OF JUSTICE

SUPERIOR COURT DIVISION

FILE NO.: 01 CVS 609

[FILED April 6, 2001]

MICHAEL G. RIPELLINO, LOUISE A.

RIPELLINO AND NICOLE RIPELLINO,

Plaintiffs,

Vs.

THE NORTH CAROLINA SCHOOL BOARDS

ASSOCIATION, INCORPORATED; NORTH

CAROLINA SCHOOL BOARDS TRUST, a

division and/or department of, created and

administered by, THE NORTH CAROLINA

SCHOOL BOARDS ASSOCIATION,

INCORPORATED; 1982 NORTH CAROLINA

SCHOOL BOARDS ASSOCIATION SELF-

FUNDED TRUST FUND, a division and/or

department of, created and administered by,

THE NORTH CAROLINA SCHOOL BOARDS

ASSOCIATION, INCORPORATED; 1986

NORTH CAROLINA SCHOOL BOARDS

ASSOCIATION SELF-FUNDED ERRORS AND

OMISSIONS/GENERAL LIABILITY TRUST

FUND, a division and/or department of,

created and administered by, TILE NCRTH

App. 80

CAROLINA SCHOOL BOARDS

ASSOCIATION, INCORPORATED; 1997

NORTH CAROLINA SCHOOL BOARDS

ASSOCIATION SELF-FUNDED

AUTO/JINLAND MARINE TRUST FUND, a

division and/or department of, created and

administered by, THE NORTH CAROLINA

SCHOOL BOARDS ASSOCIATION,

INCORPORATED, and THE JOHNSTON

COUNTY BOARD OF EDUCATION,

Defendants.

PLAINTIFF’S FIRST AMENDED COMPLAINT

NOW COME Plaintiffs, by and through

counsel, and pursuant to Rule 15 of the North

Carolina Rules of Civil Procedure, and prior to the

filing of any responsive pleading by any defendant,

file herewith their First Amended Complaint and

allege and state as follows:

1. The Plaintiffs, Michael G. Ripellino,

Louise A. Ripellino, and Nicole Ripellino are citizens

and residents of Johnston County, North Carolina,

and were citizens and residents of the county at the

times complained of herein.

2. The Defendant, the Johnston County

Board of Education, is a separate body politic, in the

County of Johnston, charged with the statutory duty

of constructing schools, maintaining schools and

providing a safe environment for the education of

children, and their travel to and from the school

facility. The Johnston County Board of Education

App. 81

operates a facility known as Clayton High School in

Clayton, North Carolina, and specifically built,

erected and maintains the gates located at the

western exit of the school, High School Drive, the

general area where the accident involving Nicole

Ripellino took place.

3. The North Carolina School Boards

Association, Incorporated (hereinafter

“Association”), is a North Carolina not-for-profit

corporation authorized by the North Carolina

Secretary of State, with its principal office located in

Raleigh, Wake County, North Carolina: Its members

include many local school boards, including the

Defendant, the Johnston County Board of

Education. ‘

4. In or about 1982, The North Carolina

School Boards Association, Incorporated,

implemented a division and/or entity known as the

Defendant, North Carolina School Boards Trust,

which provided workers’ compensation and other

coverage, through a self-funded trust fund protected

by excess insurance. This Defendant is a division

and/or department of, created and administered by,

The North Carolina School Boards Association,

Incorporated, and is involved with funding and

administering the 1982, 1986 and 1997 Self-Funded

Trusts referenced below.

5. The Defendant, 1982 North Carolina

School Boards Association Self-Funded Trust Fund,

was created by The North Carolina School Boards

Association, Incorporated, in or about 1982, as its

first self-funded trust fund, established to provide

App. 82

workers’ compensation coverage for locally and

federally funded school employees through a self-

funded trust fund protected by excess insurance.

Upon information and belief, this Defendant is a

division and/or department of, created and

administered by, The North Carolina School Boards

Association, Incorporated.

6. The Defendant, 1986 North Carolina

School Boards Association Self-Funded Errors and

Omissions/General Liability Trust Fund was created

by The North Carolina School Boards Association,

Incorporated, in or about 1986, as its second self-

funded trust fund, established to provide errors and

omissions and general liability coverage for school

districts, local boards of education, school board

members, school employees, and school volunteers.

Upon information and belief, this Defendant is a

division and/or department of, created and

administered by, The North Carolina School Boards |

Association, Incorporated.

ce The Defendant, 1997 North Carolina

School Boards Association Self-Funded Auto/Inland

Marine Trust Fund is the third fund established by

the Defendant, The North Carolina School Boards

Association, Incorporated, and was established to

provide coverage for, among other things, school-

owned vehicles, including coverage for yellow school

buses for exposures not covered by the State Tort

Claims Act. Upon information and belief, this

Defendant is a division and/or department of,

created and administered by, The North Carolina

School Boards Association, Incorporated.

App. 83

8. The four trust defendants, as alleged in

the previous paragraphs 4-7, have the purpose to

provide payment to claimants, such asthe Plaintiffs

herein, for damages caused while on the premises of

the local school boards, and will hereinafter be

referred to collectively as the “Trust Defendants.”

9. The Defendant, The Johnston County

Board of Education, participates in all four trusts

through The North Carolina School Boards

Association, Incorporated.

10. As is more fully set forth below,

Defendant, The Johnston County Board of

Education is involved with the payment of claims by

the Association, as claims are normally reported to

the school board, communicated by the Board to the

Association, and the negotiation and settlement of

claims handled by these entities is a joint effort of

all Defendants involved in this litigation.

11. The Association and the four Trust

Defendants are not governmental risk-pools, as the

same are prohibited by N.C.G.S. § 115C-142, and the

interpreting case law.

12. In regard to the Ripellino claim,

further described below, the Association, the four

Trust Defendants, and The Johnston County Board

of Education were agents of each other for handling

of this claim, acted in concert, and also acted in a

joint enterprise to handle the claim. Specifically.

the claim was first reported to The Johnston County

Board of Education and thereafter, medical records

and bills were torwarded to Mr. James Causby,

App. 84

Superintendent of the Board of Education. Upon

information and belief, Superintendent Causby or

his designee(s) forwarded these bills and records to

agents or employees of the Association or the Trust

Defendants and communicated with them regarding

the same. Additionally, the Association has

established a website on the Internet, where

authorized members of the Association, including

employees of The Johnston County Board of

Education, can log in for purposes of the evaluation

and handling of claims.

13. Upon information, and belief, the

Association and Trust Defendants have

approximately thirteen claims handlers in Raleigh,

and service claims throughout the State. Upon

information and belief, due to the small number of

claims handlers, the Association and _ Trust

Defendants must rely heavily on local input relating

to the evaluation and payment of claims, including

the involvement of various agents or employees of

The Johnston County Board of Education in the

Ripellino claim.

14. At all times pertinent to this matter,

Superintendent Causby was an agent of, or acting

in concert with, with the Association, Trust

Defendants and the Johnston County Board of

Education in regard to the Ripellino claim.

15. Upon information and belief, in the

past, the Association, Trust Defendants, and The

Johnston County Board of Education could have

raised the doctrine of immunity on many tort

claims, but chose instead, for various reasons that

App. 85

will be proven at trial, to pay claims even in light of

the immunity defense. Upon information and belief,

the Association and MTrust Defendants, in

conjunction with The Johnston County Board of

Education, would examine each claim to see if the

immunity doctrine could be _ raised. Upon

information and belief, if the immunity doctrine

could be raised, it was raised, but thereafter some

claims were nevertheless paid. This disparate

treatment of claimholders is prohibited by the

United States and North Carolina Constitutions, as

well as 42 U.S.C. § 1983.

16. At ail times relevant hereto, Defendant,

The Johnston County Board of Education, did

operate and maintain Clayton High School, a high

school educational facility in Johnston County. The

Johnston County Board of Education further

maintained High School Drive, which is a private

vehicular area located on the western portion of the

Clayton High School property, said vehicle area

being an area of ingress/egress to the high school for

vehicular traffic. High School Drive is controlled by

gates constructed by, erected by, and maintained by

The Johnston County Board of Education to control

traffic access on High School Drive. The Johnston

County Board of Education has a duty to regularly

inspect and maintain the gates at issue.

17. At all times relevant hereto, the gates

at issue are of a two-piece construction, attached to

poles each holding one portion of the gate, and said

poles were placed inside the curb line on the main

travel portion of High School Drive.

App. 86

18. At all times relevant hereto, when the

gates were in an open position, The Johnston

County Board of Education provided no means by

which to hold or secure the gates in this open

position, substantially increasing the risk that either

of the two gates would swing closed unexpectedly, by

wind or any other type cause.

19. Prior to and at the time of the accident

herein alleged, the gates on High School Drive were

in a state of disrepair, with their poles being

pitched too much to the inside, creating a hazard

that the gate would close into the path of a vehicle;

the risk of the gates closing unexpectedly was

enhanced by the fact that the gates were not secured

while in an open position.

20. At all times relevant hereto, the

Plaintiff Nicole Ripellino was an invitee on the

premises of Clayton High School on High School

Drive, being an enrolled student at Clayton High

School in good standing.

FIRST CLAIM FOR RELIEF - NEGLIGENCE

21. The allegations of all preceding

paragraphs are incorporated by reference as though

fully alleged herein.

22. Onor about Monday, March 9, 1998, at

approximately 3:14 p.m., the Plaintiff, Nicole

Ripellino, was attempting to depart Clayton High

School at the end of classes for the day. At the time

in question, Nicole Ripellino was operating a 1989

Plymouth four-door vehicle, owned by Michael G.

App. 87

Ripellino, Nicole’s father, and provided by him for

family member use, including Nicole. Nicole

Ripellino was traveling at the time alleged in a

westerly direction along High School Drive, on the

property of Clayton High School. Johnston County

Board of Education, when one of the traffic control

gates unexpectedly and without warning swung

closed, crashing through the windshield of the

Ripellino vehicle, striking the Plaintiff and throwing

her about the vehicle. The gate at issue was owned

by The Johnston County Board of Education.

23. The sole cause of Plaintiffs injury was

the closing of the gate.

24. Asa result of this defective gate, said

area was dangerous to the public, as well as to all

students such as Nicole and all faculty who were

attempting to enter or leave the high school

property. The Johnston County Board of Education,

through its agents and/or employees, knew or

should have known of the above-described condition

and of the attendant danger to the public and

students and faculty and had time to have corrected

or taken other action regarding said dangerous

condition prior to the accident herein alleged. Upon

information and belief, vehicles had struck the gates

in the past, due to the fact that they were not

secured and would close unexpectedly.

25. The Johnston County Board of

Education was on actual and/or constructive notice

about the gates and their defective condition, and

although on notice of problems, and as a result of

this accident, has done nothing further to correct

App. 88

this dangerous condition. The gates continue to

remain open at many times, unattended, and not

secured in the open position. Although chains and a

lock have since the accident been added to the gates,

the chains are not latched, the locks are not

secured, and vehicles have hit the same.

26. The Defendant, The Johnston County

Board of Education, through its agents and/or

employees, was negligent in that:

a. it failed to keep and maintain

the gates on High School Drive at Clayton

High School, in a reasonably safe condition;

b. it failed to keep and maintain the

gates at issue in a manner consistent with

various safety and design guidelines for gates

such as the gates at issue;

c. it created and/or maintained a

dangerous condition and obstruction on High

School Drive by the placement of the poles

within the curb line and the specific gates at

issue, when it knew or should have known

that said dangerous condition and

obstruction existed;

d. it failed to exercise reasonable

care in the design, construction, maintenance

and/or repair of said gates on High School

Drive, Clayton High School;

e. it failed to give any warning to

the pubiic, or to the Plaintiff or any other

App. 89

similarly situated whatsoever of the

dangerous conditions existing with said

gates;

f. it failed to reasonably inspect

said gates and correct the dangerous

condition;

g. it failed to take reasonable action

regarding the dangerous condition existing

there and to keep High School Drive free of

unnecessary and dangerous conditions;

h. it failed to correct the pitch of the poles

securing the gates at issue, and said pitch

encourages the gates to release themselves into a

closed position;

i. it failed to construct and

maintain gates that would open away from

vehicles departing Clayton High School, on

High School Drive, which would have

prevented a gate from going through the

windshield as it did in this case;

j. it constructed and maintained

gates with a sharp end, rather than a blunt

end, which allowed the gate in question to

become a spear, piercing through the

windshield at issue;

k. it constructed, implemented and

maintained gates that were too high to prevent

striking a windshield rather than at a height where

the bumper area of a vehicle would be struck;

trial.

App. 90

l. it failed to provide any type of

adequate warning signs or stripes on the gate

or the roadway, which would have advised a

pedestrian or operator of a motor vehicle that

the gate existed.

m. it failed to maintain and utilize a

stop check on the top of the gate, which would

have prevented the gate from moving more

than 45 degrees to a closed position, and

would have prevented the spearing of the

vehicle that took place in this case;

n. it designed and implemented a

dangerous gate system whereby the latch

system of the gate extended across the only

sidewalk on High School Drive, encouraging

the latch not to be utilized or to be vandalized,

so that pedestrians could pass;

0. after adequate notice of this

accident and other collisions, which will be

proven at trial, The Johnston County Board

of Education has failed to correct this

dangerous condition or to warn students,

faculty and the public of the condition; and

p. in other respects as shall be shown at

27. Asa proximate result of the negligence

of The Johnston County Board of Education, the

Plaintiff, Nicole Ripellino received serious, painful

and permanent bodily injuries and the Plaintiff

App. 91

underwent severe pain and suffering, both of body

and mind, some of which continue at the time of the

filing of this action. Plaintiff has incurred hospital

and medical expenses and _ has incurred

transportation costs by reason of said injuries and

the treatment thereof. The Plaintiff believes that her

injuries may be permanent and that she may have

decreased earning capacity, pain and suffering,

both physical and mental, in the future, additional

medical expenses, and loss of profits and wages by

reason of the injuries sustained as hereinabove set

forth.

28. The negligence of the Defendant, The

Johnston County Board of Education, as set out

above, was a proximate cause of the Plaintiff's

injuries and damages.

29. In approximately October, 1998, The

Johnston County Board of Education, the

Association and Trust Defendants paid the property

damage portion of the Ripellino claim in the amount

of $2,153.18, thereby waiving any immunity for the

injuries and damages as sustained by the Ripellino

family as set forth in this Complaint. The

defendants should be estopped from claiming

immunity for the remaining portions of the

Ripellino claim, by reason of their voluntary

payment and admission of liability, by payment

thereof.

30. Additionally, and in the alternative,

The Johnston County Board of Education’s

participation with the Association and Defendant

App. 92

Trusts as outlined above, amounts to a waiver of

governmental immunity under N.C.G:S. § 115C-142.

31. Through the negligence of the agents

and employees of the Defendant, The Johnston

County Board of Education, the Plaintiff Nicole

Ripellino is entitled to recover damages in excess of

$10,000, as set by the Jury, for her personal

injuries.

SECOND CLAIM FOR RELIEF -

PARENTS’ MEDICAL EXPENSE CLAIM

32. The allegations of all preceding

paragraphs are incorporated by reference as though

fully alleged herein.

33. At the time of the accident, Nicole

Ripellino was 16 years of age, being a minor. The

Plaintiffs, Louise A. Ripellino and Michael G.

Ripellino, her parents, incurred and _ were

responsible for her medical expenses relating to the

accident in question, until such time as Nicole

reached 18 years of age. As a proximate result of

the negligence of the employees and agents of The

Johnston County Board of Education, Louise A.

Ripellino and Michael G. Ripellino, parents of

Nicole, have incurred on her behalf in excess of

$10,000 in medical expenses, causally related to the

accident in question, and therefore seek to and are

entitled to recover an amount, as set by the Jury, in

excess of $10,000 for Nicole Ripellino’s medical

expenses while she was a minor.

App. 93

THIRD CLAIM FOR RELIEF -

DECLARATORY JUDGMENT

34. The allegations of all preceding

paragraphs are incorporated by reference as though

fully alleged herein.

35. Pursuant to Rule 57 of the North

Carolina Rules of Civil Procedure, the Plaintiffs

would request a declaratory judgment as to the

coverage for Plaintiffs’ damages provided by the

defendants. Specifically, N.C.G.S. § 115C-142

provides for a board of education to waive

governmental immunity by purchase of liability

insurance. By statute and case law, a local board of

education is not permitted to participate in a

governmental risk-pool. Under § 115C-142, a local

board of education can choose to purchase liability

insurance as a waiver of immunity, or can claim

governmental immunity. There is no allowance, in

the statute, for a board of education to participate

with the Association or Trust Defendants in the

trusts described above. The trust documents at issue

in this case shall be presented to the Court, after

discovery, and it is respectfully requested that the

Court should construe The Johnston County Board

of Education’s arrangement with the Association and

the Trust Defendants as policies of liability

insurance, as any other construction of the

documents and arrangement would require a

finding that The Johnston County Board of

Education has acted illegally in participating in the

Trusts. Additionally, the Plaintiffs ask the Court for

its declaratory judgment that the defendants have

waived immunity for the remaining portion ot

App. 94

Plaintiffs’ claim, by reason of their payment of the

property damage, and acceptance of liability.

FOURTH CLAIM FOR RELIEF ~

CHAPTER 75 CLAIM

36. The allegations of all preceding

paragraphs are incorporated by reference as though

fully alleged herein.

37. The actions of The Johnston County

Board of Education, the Association, and the four

Trust Defendants, in “waiving the flag” of immunity

in many claims, and then voluntarily paying some

of the claims through resources of these defendants,

is an unfair and deceptive act or practice.

38. The reporting of claims, evaluation of

claims, and use of telephone and fax lines to

perpetuate the same, are all business activities in

or affecting commerce as anticipated by N.C.G.S. §

75-1.1(b).

39. Additionally, should the Court

construe the activities of the Defendants as actions

involving policies of insurance, these same

Defendants have violated various subsections of

N.C.G.S. § 58-63-15(11), specifically but not limited

to the following:

a. have misrepresented pertinent

facts relating to coverages at issue;

App. 95

b. have failed to acknowledge and

to act reasonably promptly upon

communications with respect to claims;

c. failed to adopt and implement

reasonable standards for the prompt

investigation of claims;

d. refusing to pay claims without

conducting a reasonable investigation;

e. not attempting in good faith to

effectuate prompt, fair and _ equitable

settlements of claims:

f. compelled insureds, such as the

present Plaintiffs, to institute litigation to

recover amounts due them by offering to pay

the property damage as an attempt to make

the Plaintiffs drop the claim;

g. attempt to settle the claim for

less than the amount that a reasonable man

would think it is worth;

h. by making a claim payment to

these Plaintiffs not accompanied by a

statement setting forth the coverage under

which the payment is being made;

i. . by failing to promptly provide a

reasonable explanation of the basis in the

Trust documents in relation to the facts or

applicable law for denial of the claim or for an

offer of compromise setiieaent; and

App. 96

4. in other manners as will be shown at

trial.

40. The violation of any of the above

subsections by the Association, The Johnston

County Board of Education or Trust Defendants,

amounts to an unfair or deceptive act or practice as

a matter of law.

41. As a proximate result of the unfair or

deceptive acts and practices of the Defendants, the

Plaintiffs have been damaged in an amount in

excess of $10,000, to be proven at trial, and are

entitled to recover for the same. Furthermore,

pursuant to N.C.G.S. § 75-16, the Plaintiffs are

entitled to recover treble damages, and pursuant to

§ 75-16.1, are further entitled to recover their

reasonable attorneys fees.

FIFTH CLAIM FOR RELIEF -

CONSTITUTIONAL CLAIMS

42. The allegations of all preceding

paragraphs are incorporated by reference as though

fully alleged herein.

43. Plaintiffs bring their constitutional

and federal claims pursuant to 42 U.S.C. §§ 1983,

1988, the Fifth, the Fourteenth Amendments to the

United States Constitution and Article 1, Section

19, of the Constitution of the State of North

Carolina. The damages complained of took place in

Johnston County, North Carolina. As to the “Civil

Rights Claims” (brought pursuant to 42 U.S.C. §§

1983 and 1988), jurisdiction is contemporaneously

App. 97

conferred upon both the United States District

Court and this Court, and this Court has the

authority under 42 U.S.C. § 1988 to award

attorneys fees if the Plaintiffs prevail on their civil

rights claims.

44. At all times pertinent hereto, The

Johnston County Board of Education, the

Association, and the Trust Defendants are each a

“person” as contemplated by 42 U.S.C. § 1983. At all

times pertinent hereto, the same defendants, in

claiming immunity as to the Plaintiffs’ claims for

personal injury and medical expenses, were acting

under color of N.C.G.S. § 115C-142, and other

applicable North Carolina statutes, and have

subjected these Plaintiffs to the deprivation of their

equal protection and substantive due process rights

under the United States Constitution, as enforced

by 42 U.S.C. § 1983, and Article 1, Section 19 of the

North Carolina Constitution.

45. These Plaintiffs have been denied due

process and equal protection of the law as the

Defendants have paid the property damage, but

have asserted immunity in the remaining portion of

Plaintiffs’ claim, but have, upon information and

belief, customarily waived it for similarly situated

individuals who have been compensated for tort

damages.

46. The Association, The Johnston County

Board of Education and Trust Defendants’ policy

and custom of paying some claims but not paying

others, when immunity could be raised in each one,

has played a part in the violation of federal and

App. 98

state law. Additionally, the Defendants’ conduct in

this case, of paying the property damage, and

assuming liability for the claim, and then refusing

to pay the personal injury and medical expense

portion of the claim, is a violation of Plaintiffs’

federal and state constitutional rights, as a matter

of law.

47. Upon information and belief, the

Association, Trust Defendants and The Johnston

County Board of Education have what amounts to be

unbridled discretion to resolve claims filed with the

local board of education.

48. As a result of the conduct of these

Defendants, the Plaintiffs have been deprived of

their right to recover for the bodily injury and

medical expenses portion of the Ripellino claim.

49. The Fourteenth Amendment to the

United States Constitution, Article I, Section 19 of

the North Carolina Constitution, and 42 U.S.C. §

1983 protect these Plaintiffs against intentional

and arbitrary discrimination, being the conduct of

the Association, Board of Education and Trust

Defendants as to these Plaintiffs.

50. As a proximate result of the Fifth and

Fourteenth Amendments to the United States

Constitution, Article 1, Section 19 of the

Constitution of the State of North Carolina, and 42

U.S.C. § 1983 violations by The Johnston County

Board of Education, the Association, and the Trust

Defendants, the Plaintiffs are entitled to recover

damages, as set forth by the Jury, as well as

App. 99

reasonable attorney fees, pursuant to 42 U.S.C. §

1988.

SIXTH CLAIM FOR RELIEF -—

PUNITIVE DAMAGES

51. The allegations of all preceding

paragraphs are incorporated by reference as though

fully alleged herein.

52. The conduct of The Johnston County

Board of Education, in designing, constructing,

maintaining, and implementing the gates in

question, amounts to willful and wanton conduct on

the part of the Board, in light of the fact that these

gates have been hit by vehicles in the past, and yet

The Johnston County Board of Education continues

to maintain the gates in their deteriorated

condition, where it was foreseeable that the gate

would swing closed into the Plaintiff, Nicole

Ripellino’s vehicle. Additionally, even after having

notice of the tragic accident involving Ms. Ripellino,

some three years ago, the gates continue to be

maintained in their present position, unsecured,

and liable to close at any time, striking a motor

vehicle. The Johnston County Board of Education,

through its officers, directors, managers, agents and

employees, engaged in this willful and wanton

conduct, and such conduct was a proximate cause of

all three Plaintiffs’ injuries and damages. The

conduct of this Defendant in failing to place warning

signs on the gates or to correct this dangerous

condition is further evidence of willful and wanton

conduct. This conduct further shows a conscious or

reckless disregard for the righis and safcty of these

_ App. 100

three Plaintiffs, as well as others similarly situated.

The willful and wanton conduct of The Johnston

County Board of Education, is an aggravating factor

as anticipated by N.C.G.S. § 1D-15, and each

Plaintiff is entitled to an award of punitive

damages, as set by the Jury, in an amount in excess

of $10,000.

WHEREFORE, the Plaintiffs, through

counsel, would move the Court for the following

relief:

1. That the Plaintiff, Nicole Ripellino,

have and recover of the Defendant, The Johnston

County Board of Education, an amount in excess of

$10,000 as fair and reasonable satisfaction for her

medical expenses, actual suffering, both in body and

mind, in the past and prospective, a fair and

reasonable compensation for inability to perform

labor and the loss of capacity to earn money in the

past and for prospective losses and as reasonable

compensation for permanent injury, if such is found

to exist.

=. That the Plaintiffs, Louise A. Ripellino

and Michael G. Ripellino, have and recover of the

Defendant, The Johnston County Board of

Education, an amount in excess of $10,000 for the

medical expenses they incurred on behalf of their

daughter, Nicole Ripellino, during her period of

minority, said bills being causally related to the

accident at issue.

3. That this Court enter its declaratory

judgment that the Trusts at issue are to be

App. 101

construed as policies of liability insurance pursuant

to § 115C-142, and that The Johnston County Board

of Education has waived immunity for the Ripellino

claim.

4, That this Court, having construed the

Trusts at issue as policies of insurance, further

declare and find the Association, Trust Defendants,

and The Johnston County Board of Education have

committed an unfair or deceptive trade practice or

act prohibited by Chapter 75, and that the Plaintiffs

recover treble damages, attorneys fees, and costs.

5. That the Plaintiffs recover damages for

the conduct of the Association, Trust Defendants

and The Johnston County Board of Education,

which have violated the Fifth and Fourteenth

Amendments of the United States Constitution,

Article 1, Section 19 of the Constitution of the State

of North Carolina, and the 42 U.S.C. § 1983 rights of

these Plaintiffs, and that the Plaintiffs further

recover their attorneys fees, pursuant to 42 U.S.C. §

1988.

6. That the Court find and enter its order

that by payment of the property damage at issue,

The Johnston County Board of Education,

Association and the Trust Defendants, have waived

governmental immunity as to the Plaintiffs’

remaining claims.

7. That each plaintiff recovers punitive

damages in an amount in excess of $10,000 for the

willful and wanton conduct of The Johnston County

School Board of Education.

App. 102

8. For a trial by jury on all issues.

9. That the Plaintiffs recover pre-

judgment interest from the date of filing of this

action.

10. That pursuant to any applicable

statute, that the costs of this action, including

reasonable attorneys fees, be taxed against the

Defendants.

11. For such other and further relief as

this Court may deem just and proper.

This the /6"/ day of April, 2001.

MAST, SCHULZ, MAST, MILLS & STEM, P.A.

By: /s/Bradley N. Schultz

Bradley N. Schulz

State Bar No. 12789

By: /s/Don R. Wells

Don R. Wells

State Bar No. 29503

Attorneys for the Plaintiffs

5842 NC Hwy. 42 West

Garner, NC 28529

919.661.2005

App. 103

NORTH CAROLINA

JOHNSTON COUNTY

IN THE GENERAL COURT OF JUSTICE

SUPERIOR COURT DIVISION

File No. 01 CVS 609

[FILED June 11, 2001)

MICHAEL G. RIPELLINO, LOUISE A. RIPELLINO

and NICOLE RIPELLINO,

Plaintiffs,

Vv.

THE NORTH CAROLINA SCHOOL BOARDS

ASSOCIATION, INCORPORATED; NORTH

CAROLINA SCHOOL BOARDS TRUST, a division

and/or department of, created and administered by,

THE NORTH CAROLINA SCHOOL BOARDS

ASSOCIATION, INCORPORATED; 1982 NORTH

CAROLINA SCHOOL BOARDS ASSOCIATION

SELF-FUNDED TRUST FUND, a division and/or

department of, created and administered by, THE

NORTH CAROLINA SCHOOL BOARDS

ASSOCIATION, INCORPORATED; 1986 NORTH

CAROLINA SCHOOL BOARDS ASSOCIATION

SELF-FUNDED ERRORS AND

OMISSIONS/GENERAL LIABILITY TRUST FUND,

a division and/or department of, created and

administered by, THE NORTH CAROLINA

SCHOOL BOARDS ASSOCIATION,

INCORPORATED; 1977 NORTH CAROLINA

App. 104

SCHOOL BOARDS ASSOCIATION SELF-FUNDED

AUTO/AINLAND MARINE TRUST FUND, a division

and/or department of, created and administered by,

THE NORTH CAROLINA SCHOOL BOARDS

ASSOCIATION, INCORPORATED, and THE

JOHNSTON COUNTY BOARD OF EDUCATION,

Defendants.

ANSWER

The defendants, denominated in the Amended

Complaint as “The North Carolina School Boards

Association, Incorporated; the North Carolina School

Boards Trust, a division and/or department of,

created and administered by, the North Carolina

School Boards Association, Incorporated; 1982 North

Carolina School Boards Association Self-Funded

Trust Fund, a division and/or department of, created

and administered by, the North Carolina School

Boards Association, Incorporated; 1986 North

Carolina School Boards Association Self-Funded

Errors and Omissions/General Liability Trust Fund,

a division and/or department of, created and

administered by, the North Carolina School Boards

Association, Incorporated; and 1997 North Carolina

School Boards Association Self-Funded Auto/Inland

Marine Trust Fund, a division and/or department of,

created and administered by, the North Carolina

School Boards Association, Incorporated;” answer

the specific allegations of the Complaint as follows:

i. These defendants are without

knowledge or information to form a belief as to the

truth of the allegations contained in paragraph 1.

App. 105

2. Admitted that the Johnston County

Board of Education has such duties as provided by

law, and that it operates Clayton High School in

Clayton, North Carolina. These defendants are

without knowledge or information sufficient to form a

belief as to the truth of the remaining allegations of

paragraph 2.

3. Admitted that the North Carolina

School Boards Association, Incorporated (“NCSBA”)

is a duly authorized, not-for-profit organization with

its principal office located in Raleigh, Wake County,

North Carolina, and that its members include all 117

local boards of education in North Carolina,

including the Johnston County Board of Education.

Except as admitted, paragraph 3 is denied.

4. Admitted that in 1982, NCSBA

established what is presently known as the North

Carolina School Boards Trust (““NCSBT”), which, at

that time, provided worker’s compensation coverage

through a member-funded trust fund and excess

insurance in accordance with the terms of the

applicable participation agreement and excess

insurance contract. Further admitted that NCSBT is

administered by NCSBA. Except as admitted,

paragraph 4 is denied.

5. Admitted that in 1982, NCSBA

established what is presently known as the North

Carolina School Boards Trust Worker’s

Compensation Fund, which was its first trust fund

and which provides worker’s compensation coverage

for locally and federally funded school emplovees

through a member-funded trust fund and excess

App. 106

insurance in accordance with the terms of the

applicable participation agreement and excess

insurance contract. Further admitted that such

Fund is administered by NCSBA. Except as

admitted, paragraph 5 is denied.

6. Admitted that in 1986, NCSBA created

what is presently known as the North Carolina

School Boards Trust Errors & Omissions/General

Liability Fund, which was its second trust fund, to

provide errors and omissions and general liability

coverage for school districts, local boards of

education, school board members, school employees

and authorized school volunteers in accordance with

the terms of the applicable coverage agreement and

excess insurance contract. Further admitted that

such Fund is administered by NCSBA. Except as

admitted, paragraph 6 is denied.

7. Admitted that in 1997, NCSBA created

the North Carolina School Boards’ Trust

Automobile/Inland Marine Fund, which was its third

trust fund, to provide automobile and inland marine

coverage for school-owned vehicles and

miscellaneous specified property, including coverage

for yellow school buses for exposure not covered by

the State Tort Claims Act in accordance with the

terms of the applicable coverage agreement and

excess insurance contract. Further admitted that

such Fund is administered by NCSBA. Except as .

admitted, paragraph 7 is denied.

8. Denied.

9. Denied.

App. 107

10. Denied.

11. Admitted that NCSBA and _ the

referenced trust funds are not govemmental-risk

pools. Further admitted that Section 115C-142 is in

writing and speaks for itself. Except as admitted,

paragraph 11 is denied.

12. Admitted that NCSBA has established a

website on which, in the past, authorized personnel

from member districts could log on for purposes of

obtaining payment information in worker’s

compensation claims. These defendants are without

knowledge or sufficient information to form a belief

as to when the Ripellino claim was first reported to

the Johnston County Board of Education or when

medical bills and records were forwarded to Dr.

Causby. Except as admitted, paragraph 12 is denied.

13. Admitted that NCSBT adjusts claims

throughout North Carolina pursuant to _ its

participation agreement and/or its coverage

agreements with its members. Except as admitted,

paragraph 13 is denied.

14. Admitted, on information and belief,

that Superintendent Causby is an agent of Johnston

County Board of Education. Except as admitted,

paragraph 14 is denied.

15. Admitted that the immunity defense is

raised in appropriate cases. Further admitted that

NCSBT has paid claims in the past, notwithstanding

the assertion of immunity, in specific types of

situations, such as situations in which the

App. 108

settlement amount is less than the potential cost of

defense or in situations which include a claim

against an individual who does not have immunity,

or a claim for which the immunity defense is not

available. Except as admitted, paragraph 15 is

denied.

16. Admitted that the Johnston County

Board of Education operates and maintains Clayton

High School, an educational facility in Johnston

County. These defendants are without knowledge or

information sufficient to form a belief as to the truth

of the remaining allegations of paragraph 16.

17. These defendants are without

knowledge or information sufficient to form a belief

as to the truth of the allegations of paragraph 17.

18. These defendants are without

knowledge or information sufficient to form a belief

as to the truth of the allegations of paragraph 18.

19. These defendants are without

knowledge or information sufficient to form a belief

as to the truth of the allegations of paragraph 19.

20. These defendants are without

knowledge or information sufficient to form a belief

as to the truth of the allegations of paragraph 20.

FIRST CLAIM FOR RELIEF

Negligence

21. These defendants incorporate’ by

reference their responses to paragraphs 1-20.

App. 109

22. Admitted, on information and belief,

that on March 9, 1998, there was a collision between

the plaintiffs’ vehicle and a gate on the property of

Clayton High School. These defendants are without

knowledge or information sufficient to form a belief

as to the truth of the remaining allegations of

paragraph 22.

23. These defendants are without

knowledge or information sufficient to form a belief

as to the truth of the allegations of paragraph 23.

24. These defendants are without

knowledge or information sufficient to form a belief

as to the truth of the allegations of paragraph 24.

25. These defendants are without

knowledge or information sufficient to form a belief

as to the truth of the allegations of paragraph 25.

26. These defendants are without

knowledge or information sufficient to form a belief

as to the truth of the allegations of paragraph 26.

27. These defendants are without

knowledge or information sufficient to form a belief

as to the truth of the allegations of paragraph 27.

28. These defendants are without

knowledge or information sufficient to form a belief

as to the truth of the allegations of paragraph 28.

29. Admitted, on information and belief,

that a property damage claim was paid by the

App. 110

Johnston County Board of Education. Except as

admitted, paragraph 29 is denied.

30. Denied.

31. Denied.

SECOND CLAIM FOR RELIEF

Parents’ Medical Expense Claim

32. These defendants incorporate’ by

reference their responses to paragraphs 1-31.

33. These defendants are without

knowledge or information sufficient to form a belief

as to the truth of the allegations of paragraph 33.

THIRD CLAIM FOR RELIEF

Declaratory Judgment

34. These defendants incorporate’ by

reference their responses to paragraphs 1-33.

35. Admitted that the plaintiffs have

requested the relief set forth in paragraph 35 but

denied that the plaintiffs are entitled to such relief.

Further admitted that a local board of education has

no authority to participate in a local government-

risk pool pursuant to North Carolina law. Further

admitted that N.C.G.S.8115C-142 does not address

whether a board of education can participate with

NCSBA or the trusts administered by NCSBA,

inasmuch as N.C.G.S. §115C-142 does not pertain to

immunity at all or other relevant subject matter.

Except as admitted, paragraph 35 is denied.

App. 111

FOURTH CLAIM FOR RELIEF

Chapter 75 Claim

36. These defendants incorporate by

reference their responses to paragraphs 1-35.

37. Denied.

38. Denied.

39. Denied.

40. Denied.

41. Denied.

FIFTH CLAIM FOR RELIEF

Constitutional Claims

42. These defendants incorporate’ by

reference their responses to paragraphs 1-41.

43. Admitted, on information and belief,

that the incident in question took place in Johnston

County, North Carolina. The remaining allegations

of paragraph 43 state legal conclusions to which no

response is required. Admitted that the referenced

statutes are in writing and speak for themselves.

Except as admitted, paragraph 43 is denied.

44. The allegations of paragraph 44 state

legal conclusions to which no response is required.

Admitted that the referenced statutes are in writing

and speak for themselves. Except as admitted,

paragraph 44 is denied.

App. 112

45. Denied.

46. Denied.

47. Denied.

48. Denied.

49. The allegations of paragraph 49 state

legal conclusions to which no response is required.

Admitted that the referenced constitutional section

and statute are in writing and speak for themselves.

Except as admitted, paragraph 49 is denied.

50. Denied.

SIXTH CLAIM FOR RELIEF

Punitive Damages

51. These defendants’ incorporate’ by

reference their responses to paragraphs 1-50.

52. These defendants are without

knowledge or information sufficient to form a belief

as to the truth of the allegations of paragraph 52.

ALL ALLEGATIONS NOT SPECIFICALLY

ADMITTED ARE DENIED.

FIRST AFFIRMATIVE DEFENSE

The complaint fails to state a claim upon

which relief may be granted as to the answering

defendants.

App. 113

SECOND AFFIRMATIVE DEFENSE

Other than NCSBA, the other answering

defendants are not legal entities and cannot be sued.

THIRD AFFIRMATIVE DEFENSE

The applicable NCSBT Errors’ and

Omissions/General Liability Coverage Agreement

specifically provides that “no Member shall admit

any liability, settle any Claim, incur any costs or

retain any attorney, the cost of which the Member

expects the Fund to pay, without the written consent

of the Fund.” Any admission of liability on the part

of the Johnston County Board of Education without

the consent of NCSBT would violate the terms of the

Coverage Agreement and void coverage for this

claim.

FOURTH AFFIRMATIVE DEFENSE

The applicable NCSBT Errors’ and

Omissions/General Liability Coverage Agreement

specifically provides as follows:

Litigation Against the Fund

No legal action may be brought against the

Fund until there has been full compliance with

all terms of this Coverage Agreement. In

addition, no legal action may be brought

against the Fund until:

a. The Fund agrees in writing (i) that the

Member has an obligation to pay the

App. 114

Claim, and (ii) on the amount of such

obligation; or

b. The amount of the Member’s obligation

has been finally determined by

judgment after trial.

No person or organization has the right under

this Coverage Agreement to bring the Fund into any

action to determine the liability of a Member.

The answering defendants are improper defendants

in this action.

FIFTH AFFIRMATIVE DEFENSE

The plaintiffs have no standing to file suit

against these defendants pursuant to law and/or the

terms of the applicable NCSBT Errors and

Omissions/General Liability Coverage Agreement or

any other coverage or participation agreement.

SIXTH AFFIRMATIVE DEFENSE

These defendants plead lack of personal

jurisdiction, insufficiency of process and insufficiency

of service of process in bar to this action.

SEVENTH AFFIRMATIVE DEFENSE

These defendants plead all applicable statutes

of limitation and repose in bar to this action, in

whole or in part.

App. 115

EIGHTH AFFIRMATIVE DEFENSE

The North Carolina School Boards Trust

Worker’s Compensation Fund and the North

Carolina School Boards Trust Automobile/Inland

Marine Fund have no application to the matters in

issue in this lawsuit.

NINTH AFFIRMATIVE DEFENSE

In the alternative to dismissal, these

defendants are entitled to severance of all claims

against them, in that such claims are inappropriately

joined with the claims against the Johnston County

Board of Education.

WHEREFORE, these defendants pray:

- That this action be dismissed;

2. That the plaintiffs have and recover

nothing of these defendants;

3. That the costs of this action, including

attorney’s fees, be taxed against the

plaintiffs;

4. For a trial by jury on all issues so

triable; and

5. For such other relief as the court deems

appropriate.

This the 8th day of June, 2001.

App. 116

YATES, McLAMB & WEYHER, L.L.P.

By:/s/Michael C. Hurley/for NCBN 19648

Barbara B. Weyher

Attorney for Answering Defendants

Post Office Box 2889

Raleigh, NC 27602

Telephone: 919-835-0900

Fax: 919-835-0910

App. 117

STATE OF NORTH CAROLINA

JOHNSTON COUNTY

IN THE GENERAL COURT OF JUSTICE

SUPERIOR COURT DIVISION

FILE NO.: 01 CVS 609

[FILED June 12, 2001]

MICHAEL GG. RIPELLINO, LOUISE A.

RIPELLINO AND NICOLE RIPELLINO,

Plaintiffs,

Vs.

THE NORTH CAROLINA SCHOOL BOARDS

ASSOCIATION, INCORPORATED; NORTH

CAROLINA SCHOOL BOARDS TRUST, a division

and/or department of, created and administered by,

THE NORTH CAROLINA SCHOOL BOARDS

ASSOCIATION, INCORPORATED; 1982 NORTH

CAROLINA SCHOOL BOARDS ASSOCIATION

SELF-FUNDED TRUST FUND, a division and/or

department of, created and administered by, THE

NORTH CAROLINA SCHOOL BOARDS

ASSOCIATION, INCORPORATED; 1986 NORTH

CAROLINA SCHOOL BOARDS ASSOCIATION

SELF-FUNDED ERRORS AND

OMISSIONS/GENERAL LIABILITY TRUST

FUND, a division and/or department of, created

and administered by, THE NORTH CAROLINA

SCHOOL BOARDS ASSOCIATION,

INCORPORATED; 1997 NORTH CAROLINA

App. 118

SCHOOL BOARDS ASSOCIATION ~ SELF-

FUNDED AUTO/INLAND MARINE TRUST

FUND, a division and/or department of, created

and administered by, THE NORTH CAROLINA

SCHOOL BOARDS ASSOCIATION,

INCORPORATED, and THE JOHNSTON

COUNTY BOARD OF EDUCATION,

Defendants.

ANSWER OF THE JOHNSTON COUNTY

BOARD OF EDUCATION TO PLAINTIFF'S

FIRST AMENDED COMPLAINT

NOW COMES the Johnston County Board of

Education (hereinafter “Board”) by and through

counsel, and responds to Plaintiffs’ First Amended

Complaint as follows:

FIRST DEFENSE

The plaintiffs’ First Amended Complaint, or one

or more causes of action contained therein, fails to

state a claim upon which relief can be granted against

the Board.

SECOND DEFENSE

The Board responds to the specifically

enumerated paragraphs of Plaintiffs’ First Amended

Complaint as follows:

3 Admitted, upon information and belief.

App. 119

2. The Board alleges that the allegations of

the first sentence of Paragraph 2 are conclusions of law

to which no response is required. To the extent that a

response to those allegations is deemed to be

required, they are admitted, except that it is denied

that the Board is charged with the duty of providing a

safe environment for the education of children and

their travel to and from the school facility. The Board

admits the allegations of the second sentence of

Paragraph 2.

3. The Board admits that it is a member of

the North Carolina School Board’s Association,

Incorporated (hereinafter “Association”). The Board

lacks information sufficient to form a belief as to the

truth or falsity of the remaining allegations of

Paragraph 3 and they are therefore denied.

4. The Board lacks information sufficient to

form a belief as to the truth or falsity of the allegations

of Paragraph 4 and they are therefore denied.

5. The Board lacks information sufficient to

form a belief as to the truth or falsity of the allegations

of Paragraph 5 and they are therefore denied.

6. The Board lacks information sufficient to

form a belief as to the truth or falsity of the allegations

of Paragraph 6 and they are therefore denied.

7. The Board lacks information sufficient to

form a belief as to the truth or falsity of the allegations

of Paragraph 7 and they are therefore denied.

App. 120

8. The Board alleges that the allegations of

Paragraph 8 are directed to parties other than the

Board, such that the Board has no obligation to

respond to those allegations. To the extent that a

response by the Board is deemed to be required, those

allegations are denied.

9. The Board denies the allegations of

Paragraph 9.

10. The Board denies the allegations of

Paragraph 10.

11. The Board alleges that the allegations of

Paragraph 11 are directed to parties other than the

Board, such that the Board has no obligation to

respond to those allegations. To the extent that a

response by the Board is deemed to be required, it is

admitted that the Association and trust defendants

are not risk pools. The allegations are otherwise

denied.

12. The Board denies the allegations of

Paragraph 12.

13. The Board alleges that the allegations of

Paragraph 13 are directed to parties other than the

Board, such that the Board has no obligation to

respond to those allegations. To the extent that a

response by the Board is deemed to be required, those

allegations are denied.

14. The Board admits that Superintendent

Causby is, at certain times and with regard to certain

App. 121

matters, an agent of the Board. The remaining

allegations of Paragraph 14 are denied.

15. The Board admits that, in specific

circumstances, such as where defense costs wuld

exceed the costs of settlement and where a non-

immune defendant was entitled to coverage, claims

were paid. The Board further admits it has raised

immunity defense appropriately in other cases. The

Board denies the remaining allegations of Paragraph

15.

16. The Board admits the allegations of

Paragraph 16, except that the Board denies that it

had any duty to inspect the gates described.

17. The Board admits the allegations of

Paragraph 17.

18. The Board denies the allegations of

Paragraph 18.

19. The Board denies the allegations of

Paragraph 19.

20. The Board alleges that the allegations of

Paragraph 20 are conclusions of law to which no

response is required. In the event that a response is

deemed to be required, the Board admits that Nicole

Ripellino was a student enrolled at Clayton High

School at the time of the accident described in the

Plaintiffs’ First Amended Complaint.

App. 122

NEGLIGENCE

21. The Board realleges and incorporates by

reference its responses to Paragraphs 1 through 20 as

though fully set forth herein.

22. The Board admits, upon information and

belief, that at approximately the time alleged, Nicole

Ripellino’s car struck one of the gates on High School

Drive. The Board further admits that it owned the

gate. The remaining allegations of Paragraph 22

are denied.

23. The Board denies the allegations of

Pargaraph 23.

24. The Board denies the allegations of

Paragraph 24.

25. The Board denies the allegations of

Paragraph 25.

26. The Board denies the allegations of

Paragraph 26, and each subparagraph thereof.

27. The Board denies the allegations of

Paragraph 27.

28. The Board denies the allegations of

Paragraph 28.

29. The Board denies the allegations of

Paragraph 29 except that it admits it made some

App. 123

payment to plaintiffs for physical damage to the

Ripellino vehicle.

30. The Board denies the allegations of

Paragraph 30.

31. The Board denies the allegations of

Paragraph 31.

RESPONSE TO SECOND CLAIM FOR RELIEF -

PARENTS’ MEDICAL EXPENSE CLAIM

32. The Board realleges and incorporates by

reference its responses to Paragraphs 1 through 31 as

though fully set forth herein.

33. The Board admits, upon information

and belief, the allegations of the first sentence of

Paragraph 33. The Board alleges that the allegations

of the second sentence of Paragraph 33 are

conclusions of law to which no response is required.

The Board denies the remaining allegations of

Paragraph 33.

NSE R RELIEF -

DECLARATORY JUDGMENT

34. The Board realleges and incorporates by

reference its responses to Paragraphs 1 through 33 as

though fully set forth herein.

35. The Boards admits that the Plaintiffs

request a declaratory judgment as set forth in

Paragraph 35. The Board denies that the plaintiffs

App. 124

are entitled to the declaratory judgment sought, and

deny the remaining allegations of Paragraph 35.

RESPONSE TO FO 'H CLAIM F LIEF -

CHAPTER 75 CLAIM

36. The Board realleges and incorporates by

reference its responses to Paragraphs 1 through 35 as

though fully set forth herein.

37. The Board denies the allegations of

Paragraph 37.

38. The Board alleges that the allegations of

Paragraph 38 are conclusions of law to which no

response is required. To the extent that a response

to those allegations is deemed to be required, they

are denied.

39. The Board denies the allegations of

Paragraph 39, and each subparagraph thereof.

40. The Board denies the allegations of

Paragraph 40.

41. The Board denies the allegations of

Paragraph 41.

RESPONSE TO FIFTH CLAIM FOR RELIEF -

CONSTITUTIONAL CLAIMS

42. The Board realleges and incorporates by

reference its responses to Paragraphs 1 through 41 as

though fully set forth herein.

App. 125

43. The Board alleges that the allegations of

Paragraph 43 are conclusions of law to which no

response is required. To the extent that a response

to those allegations is deemed to be required, the

allegations are denied.

44. The Board alleges that the allegations of

Paragraph 44 are conclusions of law to which no

response is required. To the extent that a response

to those allegations is deemed to be required, the

allegations are denied.

45. The

Paragraph 495.

46. The

Paragraph 46.

47. The

Paragraph 47.

48. The

Paragraph 48.

49. The

Paragraph 49.

50. The

Paragraph 50.

Board

Board

Board

Board

Board

Board

denies

denies

denies

denies

denies

denies

the

the

the

the

the

the

allegations

allegations

allegations

allegations

allegations

allegations

of

of

of

of

of

of

App. 126

NSE IXTH LIEF -

PUNITIVE DAMAGES

51. The Board realleges and incorporates by

reference its responses to Paragraphs 1 through 50 as

though fully set forth herein.

52. The Board denies the allegations of

Paragraph 52.

THIRD DEFENSE

As to each and every one of the Plaintiffs’

claims against it, the Board asserts the doctrine of

sovereign and/or governmental immunity to the fullest

extent allowed by law.

FO D E M NTOB A

RP D GE

If an issue relating to punitive damages is to be

submitted to the jury, The Board moves, pursuant to

N.C. Gen. Stat. § 1D-30, that the issues of liability for

compensatory damages and the amount of

compensatory damages, if any, be tried separately

from. the issues of liability for punitive damages and

the amount of punitive damages, if any.

TY TH DEFENSE

Plaintiffs’ claim for punitive damages is

unconstitutional because it is in violation of the Fifth

and Fourteenth Amendments to the Constitution of

the United States in that it deprives The Board of

property without due process of law; it is violative of

App. 127

the Fourteenth Amendment of the Constitution of the

United States because it denies equal protection to

The Board; it is violative of the North Carolina

Constitution in that it denies equal protection to The

Board and deprives The Board of property without

due process of law; and finally, it is violative of the

prohibition against excess fines in the Eighth

Amendment of the Constitution of the United States

and in the North Carolina Constitution.

SIXTH DEFENSE AND

MOTION FOR ATTORNEYS’ FEES

The Board alleges that the Plaintiffs’ claim for

punitive damages is one which the Plaintiffs know or

should know to be frivolous or malicious. The Board

hereby gives notice that, pursuant to N.C. Gen. Stat. §

1D-45, it will seek an award of reasonable attorneys

fees resulting from the defense against the punitive

damage claim asserted by the Plaintiffs, and to the

extent any damages may be awarded the Plaintiffs as

compensatory damages, that The Board will seek to

have such award be set off against the attorneys fees

sought herein.

SEVENTH DEFENSE

The plaintiffs’ claim for punitive damages must

be dismissed on the grounds that punitive damages

are not recoverable against the Johnston County

Board of Education.

App. 128

EIGHTH DEFENSE

If the Board was negligent, or its conduct was

willful, wanton, reckless or intentional, which is denied,

then upon information and belief, at the time of the

events alleged in the Plaintiffs’ First Amended

Complaint, the actions of the Plaintiff Nicole Ripellino

were negligent, willful, wanton, reckless, or

intentional in that:

(a) Nicole Ripellino placed herself in a place

at a time and under circumstances that she knew, or

should have known, were likely to create an

unreasonable risk of harm to her;

(b) She failed to keep a reasonable lookout

as required for her own safety and protection;

(c) She drove at a speed and in a manner

that were unsafe for the area in which she was

driving;

(d) She was negligent in such other and

further ways as may be shown through discovery and

at trial.

Upon information and belief, the plaintiffs’ own

negligent, willful, wanton, reckless and/or intentional

conduct was a proximate cause of the Plaintiffs’

injuries and is a complete bar to the Plaintiffs’ claims

against The Board.

App. 129

NINTH DEFENSE

It is specifically denied that any conditions of

The Board’s premises were dangerous or defective. If

dangerous or defective conditions existed, however, the

Plaintiffs had equal or gre

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