{ "id": 8527631, "name": "HADLEY NEWGENT, Administrator of the Estate of JOSEPH LEVI NEWGENT, Deceased Minor, Plaintiff v. BUNCOMBE COUNTY BOARD OF EDUCATION, Defendant", "name_abbreviation": "Newgent v. Buncombe County Board of Education", "decision_date": "1994-04-19", "docket_number": "No. 9310IC610", "first_page": "407", "last_page": "412", "citations": [ { "type": "official", "cite": "114 N.C. App. 407" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "161 S.E.2d 645", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "1 N.C. App. 373", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552979 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/nc-app/1/0373-01" ] }, { "cite": "188 S.E.2d 551", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "14 N.C. App. 551", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550984 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc-app/14/0551-01" ] }, { "cite": "176 S.E.2d 161", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "pin_cites": [ { "page": "163", "parenthetical": "adopting the treatment of a demurrer under the Federal Rules of Civil Procedure" } ], "opinion_index": 1 }, { "cite": "277 N.C. 94", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561932 ], "year": 1970, "pin_cites": [ { "page": "99", "parenthetical": "adopting the treatment of a demurrer under the Federal Rules of Civil Procedure" } ], "opinion_index": 1, "case_paths": [ "/nc/277/0094-01" ] }, { "cite": "111 S.E.2d 844", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1960, "pin_cites": [ { "page": "848" } ], "opinion_index": 1 }, { "cite": "251 N.C. 603", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626670 ], "year": 1960, "pin_cites": [ { "page": "607-08" } ], "opinion_index": 1, "case_paths": [ "/nc/251/0603-01" ] }, { "cite": "109 S.E.2d 211", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1959, "pin_cites": [ { "page": "214" }, { "page": "214" } ], "opinion_index": 1 }, { "cite": "250 N.C. 456", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624343 ], "weight": 2, "year": 1959, "pin_cites": [ { "page": "460" }, { "page": "460" } ], "opinion_index": 1, "case_paths": [ "/nc/250/0456-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 143-297", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 5, "opinion_index": 1 }, { "cite": "N.C. Gen. Stat. \u00a7 143-300.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "opinion_index": 1 } ], "analysis": { "cardinality": 551, "char_count": 12544, "ocr_confidence": 0.755, "pagerank": { "raw": 2.4371260416544647e-07, "percentile": 0.8026842491589278 }, "sha256": "9dd682b3b3045e2459c5be4e09506e5db5235ad53b655a08bb3ec9e09020b5d7", "simhash": "1:a59f09c777abba1c", "word_count": 2113 }, "last_updated": "2023-07-14T17:01:59.295429+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge ORR dissents in a separate opinion.", "Judge WYNN concurs." ], "parties": [ "HADLEY NEWGENT, Administrator of the Estate of JOSEPH LEVI NEWGENT, Deceased Minor, Plaintiff v. BUNCOMBE COUNTY BOARD OF EDUCATION, Defendant" ], "opinions": [ { "text": "WELLS, Judge.\nPlaintiff assigns as error the Industrial Commission\u2019s finding and concluding that it lacked jurisdiction over this action and the dismissal of his claim. After examining the record before us, we must conclude that this assignment is without merit.\nThis action is governed by G.S. \u00a7 143-300.1, which provides in pertinent part:\nThe North Carolina Industrial Commission shall have jurisdiction to hear and determine tort claims against any county board of education . . . which claims arise as a result of any alleged mechanical defects or other defects which may affect the safe operation of a public school bus . . . resulting from an alleged negligent act of any maintenance personnel or as a result of any alleged negligent act or omission of the driver of a public school bus . . . and which driver was at the time of the alleged negligent act or omission operating a public school bus ... in the course of his employment by or training for that administrative unit or board. (Emphasis added.)\nThe Commission found and concluded that the school bus driver \u201cwas not operating a public school bus in the course of her employment\u201d at the time of the alleged negligent acts complained of; therefore, the Commission lacked jurisdiction under the statute.\nSince the applicable statute is in derogation of sovereign immunity, it must be strictly construed and its terms strictly adhered to. Etheridge v. Graham, 14 N.C. App. 551, 188 S.E.2d 551 (1972). We can discern no way that defendant\u2019s employee could be considered to have been operating the bus at the time of the negligent acts complained of \u2014 not reporting to the principal that the stop had limited visibility and that she could stop the bus and pick up students on the west side of the highway, and not informing the principal or Joseph\u2019s parents that Joseph had previously crossed the highway by himself. In order to be held liable under this statute, the negligent acts or omissions complained of must have occurred while the employee was operating the bus in the course of her employment.\nThere is competent evidence to support the Commission\u2019s finding that the bus driver was not operating the vehicle in the course of her employment at the time of the alleged negligent acts; therefore, the findings are conclusive on appeal. See G.S. \u00a7 143-293; Mitchell v. Board of Education, 1 N.C. App. 373, 161 S.E.2d 645 (1968). For the reasons stated above, the order concluding that the Commission lacked jurisdiction over the claim is hereby\nAffirmed.\nJudge ORR dissents in a separate opinion.\nJudge WYNN concurs.", "type": "majority", "author": "WELLS, Judge." }, { "text": "Judge ORR\ndissenting.\nBecause the majority, in my opinion, construes the jurisdictional statute too narrowly, I respectfully dissent.\nI do not believe that the Legislature intended for N.C. Gen. Stat. \u00a7 143-300.1 to preclude the Industrial Commission from hearing tort claims wherein certain alleged negligent acts or omissions arose out of, and were inseparably connected to, events occurring at the time a school bus driver was operating the bus in the course of her employment.\nIn the present case, in accordance with N.C. Gen. Stat. \u00a7 143-297, plaintiff filed an affidavit with the Commission that included a statement of facts and circumstances surrounding the injury giving rise to the claim. In this affidavit, plaintiff stated that her child, decedent, Joseph Levi Newgent, was a student at West Buncombe Elementary School assigned to bus number 463. Plaintiff stated that she and decedent lived on Cole Road, located on the West side of N.C. Hwy. 63, \u201ca very busy highway currently under expansion by the North Carolina Department of Transportation to five lanes.\u201d Further, the affidavit stated:\nThe school bus driver, Jean Freeman, took the school bus (#463) home with her on a daily basis. Ms. Freeman lived North of the point where Frisbee Road (off of which Cole Road is located) intersects with NC Highway 63. In the mornings, Mrs. Freeman would drive by Frisbee Road, the side on which the deceased child lived, traveling in a southerly direction. She would turn the school bus around and travel the same route in a Northerly direction. She would proceed to make one stop and then pick up Joseph Levi Newgent on the East side of NC Highway 63. Therefore, it was necessary for Joseph Levi Newgent to cross NC Highway 63 in order to board the school bus.\nThe bus stop where Joseph Levi Newgent was picked up was located on a[n] incline, in a curve to the right with very limited visibility. Ms. Freeman has stated ... that Joseph Levi Newgent had crossed the road twice before on his own. She further stated that she had not reported his crossing NC Highway 63 by himself to any person, including the principal of the elementary school nor to his parents. On the day of 10 December, 1990 at approximately 6:50 a.m., a period of time where there was very limited visibility, my son[, Joseph Levi Newgent,] was killed while crossing NC Highway 63 in order to await the arrival of the school bus.\nAlso in this affidavit, plaintiff stated that she \u201cbelieve[d] Ms. Freeman was negligent by\u201d failing to inform the principal and decedent\u2019s parents of facts Ms. Freeman observed and alternative routes Ms. Freeman should have taken while operating the bus in the course of her employment.\nUnder N.C. Gen. Stat. \u00a7 143-297, in \u201call claims which may . . . be filed against the various . . . agencies of the State, the claimant . . . shall file with the Industrial Commission an affidavit . . . setting forth the following information: ... A brief statement of the facts and circumstances surrounding the injury and giving rise to the claim.\u201d \u201cAdherence to formal rules of pleading is not required but the claim should state facts sufficient to identify the agent or employee and a brief statement of the negligent act that caused the injury.\u201d Turner v. Gastonia City Bd. of Educ., 250 N.C. 456, 460, 109 S.E.2d 211, 214 (1959).\nNo formal pleadings are required in a proceeding under our State Tort Claims Act. It is only necessary in order to invoke the jurisdiction of the Industrial Commission for the claimant or person in whose behalf the claim is made to file with the Industrial Commission an affidavit in duplicate setting forth the material facts, as required by G.S. 143-297.\nBranch Banking & Trust Co. v. Wilson County Bd. of Educ., 251 N.C. 603, 607-08, 111 S.E.2d 844, 848 (1960). I would conclude, therefore, that plaintiffs affidavit contained sufficient facts in compliance with N.C. Gen. Stat. \u00a7 143-297 to confer jurisdiction on the Industrial Commission under N.C. Gen. Stat. \u00a7 143-300.1.\nIf, however, \u201cthe claim, upon its face, shows that the State department or agency sought to be charged is not liable, then the Commission may end the proceeding.\u201d Turner, 250 N.C. at 460, 109 S.E.2d at 214. Prior to the enactment of our Rules of Civil Procedure, the proper way to take advantage of this defect was by demurrer. Id. Under our Rules of Civil Procedure, \u201c \u2018[a] motion to dismiss \u201cfor failure to state a claim upon which relief can be granted [pursuant to Rule 12(b)(6)]\u201d is the modern equivalent of a demurrer.\u2019 \u201d Sutton v. Duke, 277 N.C. 94, 99, 176 S.E.2d 161, 163 (1970) (adopting the treatment of a demurrer under the Federal Rules of Civil Procedure) (citations omitted).\nThe present case was not, however, brought under a Rule 12(b)(6) motion to dismiss for failure to state a claim. Instead, this action was brought under Rule 12(b)(1) and (2) for lack of personal and subject matter jurisdiction. Based on the liberal pleading rules applying N.C. Gen. Stat. \u00a7 143-297, I do not find that this action was a proper one for dismissal based on lack of jurisdiction.\nIn her affidavit, plaintiff set out the circumstances surrounding the alleged negligent acts of Ms. Freeman. These circumstances show that at the time Ms. Freeman was operating the bus in the course of her employment, she saw the decedent, an elementary aged child, cross the busy road twice on his own, and she could allegedly see that the bus stop was in an area of limited visibility for a pedestrian. Further, while she was operating the bus in the course of her employment, every morning Ms. Freeman would drive by Frisbee Road in a southerly direction. If Ms. Freeman had picked up decedent while she was traveling in a southerly direction instead of turning the bus around and picking him up while she was driving the bus in a northerly direction, decedent would not have had to cross the highway and thus be exposed to the danger of crossing the highway.\nThe alleged acts and omissions of failing to inform the principal and decedent\u2019s parents arose out of events that occurred while Ms. Freeman was operating the bus in the course of her employment. In light of the fact that plaintiff is not required under N.C. Gen. Stat. \u00a7 143-297 to adhere to formal rules of pleading, the events described in the affidavit, in my opinion, are sufficient for jurisdictional purposes to show that the alleged acts or omissions occurred while Ms. Freeman was operating the bus in the course of her employment.\nWhile the majority relies on the language of N.C. Gen. Stat. \u00a7 143-300.1 requiring that the driver be operating the public school bus \u201cat the time of the alleged negligent act or omission\u201d to defeat plaintiffs claim based on a lack of jurisdiction, I find the affidavit sufficient to set out facts arising from the actual operation of the school bus and would reverse the order of the Industrial Commission and remand for a hearing on plaintiff\u2019s claim.", "type": "dissent", "author": "Judge ORR" } ], "attorneys": [ "Long, Parker, Hunt, Payne & Warren, P.A., by Ronald K. Payne, for plaintiff-appellant.", "Attorney General Michael F. Easley, by Assistant Attorney General Richard L. Griffin, for defendant-appellee." ], "corrections": "", "head_matter": "HADLEY NEWGENT, Administrator of the Estate of JOSEPH LEVI NEWGENT, Deceased Minor, Plaintiff v. BUNCOMBE COUNTY BOARD OF EDUCATION, Defendant\nNo. 9310IC610\n(Filed 19 April 1994)\nState \u00a7 63 (NCI4th) \u2014death of a child crossing road to catch bus \u2014 allegedly negligent acts of bus driver \u2014 driver not operating bus in course of employment when acts occurred\nIn an action to recover for the death of a child who was struck and killed when attempting to cross the highway in order to await the arrival of his school bus, the Industrial Commission properly found that it did not have jurisdiction over the action because the bus driver was not operating the vehicle in the course of her employment at the time of the alleged negligent acts, which included not reporting to the principal that the stop had limited visibility and that she could stop the bus and pick up students on the other side of the highway, and not informing the principal or the child\u2019s parents that the child had previously crossed the highway by himself. N.C.G.S. \u00a7 143-300.1.\nAm Jur 2d, Municipal, County, School, and State Tort Liability \u00a7\u00a7 649-651.\nJudge ORR dissenting.\nAppeal by plaintiff from order of the Industrial Commission issued 12 April 1993. Heard in the Court of Appeals 7 March 1994.\nOn 10 December 1990, at approximately 6:50 a.m. near the intersection of N.C. Highway 63 and Frisbee Road in Buncombe County, Joseph Levi Newgent was struck by an automobile and killed when attempting to cross Highway 63 in order to await the arrival of his school bus. On 21 November 1991, plaintiff filed a Tort Claim Affidavit pursuant to N.C. Gen. Stats. \u00a7\u00a7 143-297 and 143-300.1. The affidavit alleged that Jean Freeman, the driver of the school bus which Joseph rode to school and was planning to board when he crossed the highway and was struck by another vehicle, was negligent by: not reporting to the principal that the bus stop that Joseph used every morning was in an area with limited visibility, not informing the principal that she could stop the bus in the mornings and pick up Joseph on the west side of the road so that he would not need to cross the highway, and by not informing the principal and Joseph\u2019s parents that he had previously crossed the highway by himself prior to being struck and killed by an automobile on 10 December 1990.\nOn 12 December 1991, defendant filed a motion to dismiss. Following a hearing, Commissioner J. Randolph Ward entered an Order dismissing the claim, concluding that, at the time of the negligent acts complained of, Jean Freeman was not operating the school bus in the course of her employment and therefore the Industrial Commission had no jurisdiction. Plaintiff then appealed to the Full Commission. From the Commission\u2019s Order confirming the order of dismissal, plaintiff now appeals.\nLong, Parker, Hunt, Payne & Warren, P.A., by Ronald K. Payne, for plaintiff-appellant.\nAttorney General Michael F. Easley, by Assistant Attorney General Richard L. Griffin, for defendant-appellee." }, "file_name": "0407-01", "first_page_order": 435, "last_page_order": 440 }