{ "id": 11865801, "name": "ROBERT L. PHARR, Plaintiff v. STEVEN W. WORLEY, and THE CHARLOTTE MECKLENBURG BOARD OF EDUCATION, Defendants", "name_abbreviation": "Pharr v. Worley", "decision_date": "1997-01-07", "docket_number": "No. COA96-68", "first_page": "136", "last_page": "139", "citations": [ { "type": "official", "cite": "125 N.C. App. 136" } ], "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": "163 S.E.2d 353", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "pin_cites": [ { "page": "357" } ], "opinion_index": 0 }, { "cite": "274 N.C. 328", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560069 ], "year": 1968, "pin_cites": [ { "page": "333" } ], "opinion_index": 0, "case_paths": [ "/nc/274/0328-01" ] }, { "cite": "29 L. Ed. 2d 859", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1971, "opinion_index": 0 }, { "cite": "403 U.S. 948", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12043280, 12043226 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/us/403/0948-02", "/us/403/0948-01" ] }, { "cite": "167 S.E.2d 241", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "opinion_index": 0 }, { "cite": "275 N.C. 288", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558608 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/nc/275/0288-01" ] }, { "cite": "476 S.E.2d 115", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "344 N.C. 436", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 867688, 867668, 867542, 867642, 867614 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/nc/344/0436-01", "/nc/344/0436-04", "/nc/344/0436-03", "/nc/344/0436-05", "/nc/344/0436-02" ] }, { "cite": "468 S.E.2d 846", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "850" } ], "opinion_index": 0 }, { "cite": "122 N.C. App. 198", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11916366 ], "opinion_index": 0, "case_paths": [ "/nc-app/122/0198-01" ] }, { "cite": "374 S.E.2d 401", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1988, "pin_cites": [ { "page": "405" }, { "page": "405" } ], "opinion_index": 0 }, { "cite": "92 N.C. App. 306", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526841 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "309-10" }, { "page": "310-11" } ], "opinion_index": 0, "case_paths": [ "/nc-app/92/0306-01" ] }, { "cite": "159 S.E.2d 530", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "pin_cites": [ { "page": "534-35", "parenthetical": "cited to and quoted in part by Harwood v. Johnson, 92 N.C. App. 306, 309-10, 374 S.E.2d 401, 405 (1988" } ], "opinion_index": 0 }, { "cite": "273 N.C. 44", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574366 ], "year": 1968, "pin_cites": [ { "page": "49", "parenthetical": "cited to and quoted in part by Harwood v. Johnson, 92 N.C. App. 306, 309-10, 374 S.E.2d 401, 405 (1988" } ], "opinion_index": 0, "case_paths": [ "/nc/273/0044-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 58-23-1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 1994, "opinion_index": 0 }, { "cite": "477 S.E.2d 150", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1996, "opinion_index": 0 }, { "cite": "344 N.C. 676", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 867561 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/nc/344/0676-01" ] }, { "cite": "435 S.E.2d 337", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "334 N.C. 621", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2530443, 2532332, 2530396, 2531257, 2532508 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc/334/0621-03", "/nc/334/0621-02", "/nc/334/0621-05", "/nc/334/0621-04", "/nc/334/0621-01" ] }, { "cite": "430 S.E.2d 689", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "691" } ], "opinion_index": 0 }, { "cite": "110 N.C. App. 531", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525976 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc-app/110/0531-01" ] }, { "cite": "399 S.E.2d 121", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "327 N.C. 634", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2495648, 2499943, 2496788, 2493082, 2500123 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc/327/0634-02", "/nc/327/0634-03", "/nc/327/0634-04", "/nc/327/0634-05", "/nc/327/0634-01" ] }, { "cite": "394 S.E.2d 231", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1990, "pin_cites": [ { "page": "235" }, { "page": "236" } ], "opinion_index": 0 }, { "cite": "99 N.C. App. 693", "category": "reporters:state", "reporter": "N.C. 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App.", "case_ids": [ 8527043 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "30" }, { "page": "30" } ], "opinion_index": 0, "case_paths": [ "/nc-app/114/0025-01" ] } ], "analysis": { "cardinality": 480, "char_count": 8020, "ocr_confidence": 0.739, "pagerank": { "raw": 3.187598811779442e-07, "percentile": 0.864939230047775 }, "sha256": "411f3dd5222c4bdbff6c570df3921db79c05b3465736c86b466f624a34450bf4", "simhash": "1:4f21445ab7e7720c", "word_count": 1296 }, "last_updated": "2023-07-14T22:18:02.941264+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges EAGLES and MARTIN, John C., concur." ], "parties": [ "ROBERT L. PHARR, Plaintiff v. STEVEN W. WORLEY, and THE CHARLOTTE MECKLENBURG BOARD OF EDUCATION, Defendants" ], "opinions": [ { "text": "SMITH, Judge.\nThis case involves injuries arising out of an automobile accident between plaintiff and Steven W. Worley (Worley), a security officer for the Charlotte-Mecklenburg Board of Education (the Board). Plaintiffs suit against both Worley and his employer, the Board, proceeded under the supposition that the Board had waived its governmental immunity by purchasing liability insurance under the aegis of a \u201clocal government risk pool.\u201d At trial, defendants moved for a directed verdict at the close of plaintiffs evidence, arguing the Board had not participated in a \u201crisk pool,\u201d and, therefore, had not waived its governmental immunity by the purchase of insurance.\nA directed verdict is properly granted where it appears, as a matter of law, that the nonmoving party cannot recover upon any view of the facts which the evidence reasonably tends to establish. Sheppard v. Zep Manufacturing Co., 114 N.C. App. 25, 30, 441 S.E.2d 161, 164 (1994). Under this standard, this Court must determine whether plaintiffs evidence, when considered in the light most favorable to plaintiff, was legally sufficient to withstand defendants\u2019 motion for a directed verdict as to plaintiffs claims. See Sheppard, 114 N.C. App. at 30, 441 S.E.2d at 164.\nOn appeal, plaintiff first argues that defendant Worley was engaged in a proprietary, rather than governmental function in his capacity as a patrol officer with the Board\u2019s security department. \u201cTraditionally, a county [agency has been held] immune from torts committed by an employee carrying out a governmental function, but [the agency may still be held] liable for torts committed while [its employee is] engaged in a proprietary function.\u201d Hare v. Butler, 99 N.C. App. 693, 698, 394 S.E.2d 231, 235, disc. review denied, 327 N.C. 634, 399 S.E.2d 121 (1990).\nWe have carefully reviewed the record. Having done so, we are unable to consider plaintiff\u2019s governmental/proprietary function arguments because plaintiff did not raise such issues in the court below. N.C.R. App. 10(b)(1) (1997); Northwestern Financial Group, Inc. v. County of Gaston, 110 N.C. App. 531, 430 S.E.2d 689, 691, disc. review denied, 334 N.C. 621, 435 S.E.2d 337 (1993). We are bound by our case law and appellate rules, and accordingly, we dismiss plaintiffs governmental/proprietary function argument.\nNext, we address plaintiffs claim that the Board is a participant in a \u201clocal government risk pool,\u201d and has thereby waived governmental immunity. The question of whether the risk management agreement (agreement) between the City of Charlotte, Mecklenburg County, and the Charlotte-Mecklenburg Board of Education constitutes a risk pool was recently settled by our Supreme Court in Lyles v. City of Charlotte, 344 N.C. 676, 477 S.E.2d 150 (1996). The Lyles Court concluded that \u201cthere must be more risk-sharing than is contained in the [instant] agreement in order to create a local government risk pool.\u201d Id., slip op. at 5. Furthermore, the Lyles Court held that \u201c[t]he Charlotte-Mecklenburg Board of Education could not join a risk pool pursuant to [N.C. Gen. Stat. \u00a7 58-23-1 (1994)].\u201d Id., slip op. at 5 (emphasis added). Since the instant case involves the same risk management plan at issue in Lyles, we must conclude that the instant Board is not and could not be, a risk pool participant, and has not waived its immunity. Accordingly, the trial court\u2019s directed verdict for defendant Board was not error.\nThe final question is whether plaintiffs suit against defendant Worley should have been allowed to proceed despite the Board\u2019s governmental and official immunity defenses. Our courts have frequently stated that\n[a]n employee of a governmental agency ... is personally liable for his negligence in the performance of his duties proximately causing injury to the property [or person] of another even though his employer is clothed with immunity and not liable on the principle of respondeat superior.\nGivens v. Sellars, 273 N.C. 44, 49, 159 S.E.2d 530, 534-35 (1968) (cited to and quoted in part by Harwood v. Johnson, 92 N.C. App. 306, 309-10, 374 S.E.2d 401, 405 (1988). An officer, on the other hand, is entitled to share in the immunity of the sovereign, Harwood, 92 N.C. App. at 310-11, 374 S.E.2d at 405, and to assert the separate defense of official immunity where applicable. See Epps v. Duke University, 122 N.C. App. 198; 203, 468 S.E.2d 846, 850 (\u201cOfficial immunity is a derivative form of sovereign immunity.\u201d (emphasis added)), disc. review denied, 344 N.C. 436, 476 S.E.2d 115 (1996). Determining whether a governmental worker is an employee or an official is often a difficult distinction to draw. See Hare, 99 N.C. App. at 698, 394 S.E.2d at 236.\nIn the instant appeal, we are unable to determine whether defendant Worley\u2019s duties and responsibilities were such that he is entitled to either official immunity or to share in the Board\u2019s sovereign immunity. Plaintiff has included only twenty-eight pages of transcript from the proceedings below in the record, none of which speak to these particular issues. In the portion of the transcript provided, plaintiff\u2019s arguments are directed solely at whether the Board waived its immunity by purchasing liability insurance or by participating in a local government risk pool. It is appellant\u2019s duty and responsibility to see that the record is in proper form and complete. N.C.R. App. P. 9(a)(1)(e) and 9(a)(1)\u00ae (1997); and see State v. Atkinson, 275 N.C. 288, 167 S.E.2d 241 (1969), death sentence vacated sub. nom., Atkinson v. North Carolina, 403 U.S. 948, 29 L. Ed. 2d 859 (1971). From the record before us, we cannot, without engaging in speculation, determine defendant Worley\u2019s status as an employee or officer. \u201cAn appellate court is not required to, and should not, assume error by the trial judge when none appears on the record before the appellate court.\u201d State v. Williams, 274 N.C. 328, 333, 163 S.E.2d 353, 357 (1968). Thus, we affirm the trial court\u2019s directed verdict for defendant Worley as well.\nIn summary, we affirm the directed verdict of the court below as to all defendants for the reasons stated herein.\nAffirmed.\nJudges EAGLES and MARTIN, John C., concur.", "type": "majority", "author": "SMITH, Judge." } ], "attorneys": [ "Marshall A. Swann for plaintiff appellant.", "Smith Helms Mulliss & Moore, L.L.P., by James G. Middlebrooks and Scott Boatwright, for defendant appellees." ], "corrections": "", "head_matter": "ROBERT L. PHARR, Plaintiff v. STEVEN W. WORLEY, and THE CHARLOTTE MECKLENBURG BOARD OF EDUCATION, Defendants\nNo. COA96-68\n(Filed 7 January 1997)\n1. Appeal and Error \u00a7 156 (NCI4th)\u2014 governmental/proprietary function \u2014 issue not raised at trial\nThe plaintiffs governmental/proprietary function argument was dismissed where plaintiff did not raise the issue in the trial court. N.C. R. App. P. 10(b)(1).\nAm Jur 2d, Appellate Review \u00a7 614.\n2. Counties \u00a7 81 (NCI4th)\u2014 board of education \u2014 not risk pool participant \u2014 no waiver of sovereign immunity\nA county board of education was not and could not be a local government risk pool participant so as to waive its sovereign immunity for negligence in an automobile accident by a security officer it employed.\nAm Jur 2d, Municipal, County, School, and State Tort Liability \u00a7\u00a7 524, 633, 634.\n3. Appeal and Error \u00a7 357 (NCI4th)\u2014 directed verdict \u2014 sovereign immunity \u2014 employee or officer \u2014 failure of record to show\nThe trial court\u2019s directed verdict for the individual defendant in a negligence action was affirmed where the Court of Appeals was unable, without engaging in speculation, to determine whether this defendant was an employee or an officer of defendant board of education and thus entitled to official immunity or to share in the board\u2019s sovereign immunity. An appellate court is not required to, and should not, assume error by the trial judge when none appears on the record before the appellate court.\nAm Jur 2d, Appellate Review \u00a7 617.\nAppeal by plaintiff from directed verdict for defendants entered 16 December 1994 by Judge Chase B. Saunders in Mecklenburg County Superior Court. Heard in the Court of Appeals 7 October 1996.\nMarshall A. Swann for plaintiff appellant.\nSmith Helms Mulliss & Moore, L.L.P., by James G. Middlebrooks and Scott Boatwright, for defendant appellees." }, "file_name": "0136-01", "first_page_order": 174, "last_page_order": 177 }