1. Governmental Immunity--Board of Education--after school program
The trial erred by failing to direct partial summary judgment for the Board of Education
in a personal injury action arising from an after-school enrichment program. Application of the
principles in Britt v. Wilmington, 236 N.C. 446, and Kiddie Korner v. Board of Education, 55
N.C. App. 134, compels the inclusion of the program within the class of activities regarded as
traditional governmental functions; however, plaintiff does not dispute the assertion that the
Board had no insurance coverage applicable to the first million dollars and the trial court should
have directed partial summary judgment for the Board on claims below that amount.
2. Governmental Immunity--after-school program--staff members--sued in individual
capacity
The trial court did not err in a personal injury action arising from an after-school
program by not granting summary judgment for staff members based on governmental
immunity. Although the complaint did not specify whether these defendants were sued in their
official or individual capacities, the action was filed prior to Meyer v. Walls, 347 N.C. 97, and
Mullis v. Sechrest, 347 N.C. 548, and the Court of Appeals examined the course of the
proceedings and the allegations in the pleadings, which reflected an intent to sue these
defendants in their individual capacities.
3. Public Officers and Employees--after school program--staff as public employees
The trial court did not err in a negligence action arising from an after-school enrichment
program by denying summary judgment for two program staff members in their individual
capacities. These defendants were properly designated public employees and not public officials
and they may be held personally liable for negligent acts in the performance of their duties.
However, the court erred by denying partial summary judgment on claims against these
defendants in their official capacities for less than one million dollars, for which the Board of
Education had no insurance coverage.
Appeal by defendants from order entered 6 February 1998 by
Judge Forrest A. Ferrell in Mecklenburg County Superior Court.
Heard in the Court of Appeals 19 November 1998.
Justice & Eve, P.A., by David L. Edwards, for plaintiff-
appellee.
Charles G. Monnett III, for plaintiff-appellee.
Smith Helms Mulliss & Moore, L.L.P., by James G.
Middlebrooks and Elizabeth Baker Scanlan, for defendants-
appellants.
JOHN, Judge.
Defendants appeal the trial court's denial of their motion
for partial summary judgment predicated upon governmental
immunity. We affirm in part and reverse in part.
Pertinent facts and procedural history include the
following:
On 15 January 1992, Michael Anthony Schmidt (Michael) was a six
year old student enrolled in a voluntary after-school enrichment
program operated and controlled by defendant Charlotte-
Mecklenburg Board of Education (the Board) at the Idlewild
Elementary School (hereinafter the Program). The Program was not
included within the regular school curriculum, but rather was
conducted between 2:00 and 6:00 P.M. each weekday afternoon. It
provided:
recreation for . . . children, a nutritious
snack, homework time, . . . tutoring in areas
that they may [have] need[ed] help . . . ,
hands-on type[s] of learning, scienceactivities and music activities, language
arts . . . [and] all kinds of different
activities by way of play.
Michael's mother, plaintiff Joy E. Schmidt, was charged a thirty-
five dollar ($35.00) per week enrollment fee for her son's
participation in the Program.
According to plaintiff's complaint, Michael suffered a head
injury 15 January 1992 while participating in the Program and in
the care of Program staff members defendants Laurel Jeanne
Breeden (Breeden) and her assistant Jennifer Owens (Owens). At
home, Michael subsequently developed a headache, became nauseated
and began to vomit. According to plaintiff, she did not realize
the medical significance of these symptoms because no one from
the Program had disclosed Michael's injury. As a consequence,
appropriate medical treatment was delayed, exacerbating Michael's
condition which ultimately included permanent brain and vision
impairment.
On 8 October 1996, plaintiff filed the instant suit claiming
Michael's injuries were caused by the negligence of defendants.
The latter answered, generally denying plaintiff's allegations,
and moved for partial summary judgment (defendants' motion) upon
grounds that
the Board of Education ha[d] not purchased a
contract of insurance for the first
$1,000,000 of exposure and thus ha[d] notwaived its governmental immunity for any
claim . . . below that threshold.
In opposing defendants' motion, plaintiff did not contest
the absence of liability insurance covering claims up to
$1,000,000.00. Rather, plaintiff asserted
[t]he After-School Enrichment Program was, in
effect, a private day care facility which
operated and was located within a building
ow[n]ed by the [d]efendant School Board.
Therefore, plaintiff concluded, the Board was not entitled to
governmental immunity because operation of the Program
constituted a proprietary function. The trial court denied
defendants' motion 4 February 1998 and the latter timely
appealed.
Preliminarily, we note that orders denying motions for
summary judgment are interlocutory and generally not immediately
appealable. See Hill v. Smith, 38 N.C. App. 625, 626, 248 S.E.2d
455, 456 (1978). Notwithstanding, our courts have established
that denial of a summary judgment motion grounded upon
governmental immunity affects a substantial right and is thereby
immediately appealable pursuant to N.C.G.S. § 1-277(a) (1996) andN.C.G.S. § 7A-27(d) (1995). See Hallman v. Charlotte-Mecklenburg
Bd. of Educ., 124 N.C. App. 435, 437, 477 S.E.2d 179, 180 (1996);
see also Moore v. Evans, 124 N.C. App. 35, 39, 476 S.E.2d 415,
420 (1996) (defendants' appeal proper where trial court denied
defendants' partial summary judgment motion predicated upon
governmental immunity). As defendants' motion relied upon the
defense of governmental immunity, we address the merits of their
appeal.
Summary judgment is appropriately granted if
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.G.S. § 1A-1, Rule 56(c) (1990). A summary judgment movant
bears the burden of establishing the lack of any triable issue,and may do so by showing
that an essential element of the opposing
party's claim is nonexistent, or by showing
through discovery that the opposing party
cannot . . . surmount an affirmative defense
which would bar the claim. . . . All
inferences of fact from the proofs offered at
the hearing must be drawn against the movant
and in favor of the party opposing the
motion.
Boudreau v. Baughman, 322 N.C. 331, 342-43, 368 S.E.2d 849, 858
(1988) (citations omitted).
[1]Defendants assert the trial court erred in that
operation and control of the [Program] by the
Board is a governmental function . . . and
therefore, the Board is entitled to partial
summary judgment on the ground of
governmental immunity.
We conclude defendants' argument has merit.
The liability of a county for torts of its officers and
employees is dependent upon whether the activity in which the
latter are involved is properly designated “governmental” or
“proprietary” in nature, “a county [being] immune from torts
committed by an employee carrying out a governmental function”
and “liable for torts committed [by an employee] while engaged in
a proprietary function.” 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).
Our Supreme Court has delineated the distinction betweengovernmental and proprietary functions as follows:
When a municipality is acting 'in behalf
of the State' in promoting or protecting the
health, safety, security or general welfare
of its citizens, it is an agency of the
sovereign. When it engages in a public
enterprise essentially for the benefit of the
compact community, it is acting within its
proprietary powers. In either event it must
be for a public purpose or public use.
So then, generally speaking, the
distinction is this: If the undertaking of
the municipality is one in which only a
governmental agency could engage, it is
governmental in nature. It is proprietary
and 'private' when any corporation,
individual, or group of individuals could do
the same thing. Since, in either event, the
undertaking must be for a public purpose, any
proprietary enterprise must, of necessity, at
least incidentally promote or protect the
general health, safety, security, or general
welfare of the residents of the municipality.
Britt v. Wilmington, 236 N.C. 446, 450-51, 73 S.E.2d 289, 293
(1952).
In applying the foregoing test, our courts have focused upon
the “commercial aspect of the definition.” Hickman v. Fuqua, 108
N.C. App. 80, 83, 422 S.E.2d 449, 451 (1992), disc. review
denied, 333 N.C. 462, 427 S.E.2d 621 (1993). “Charging a
substantial fee to the extent that a profit is made is strong
evidence that the activity is proprietary.” Hare, 99 N.C. App.
at 698, 394 S.E.2d at 235. Nonetheless,
a 'profit motive' is not the soledeterminative factor when deciding whether an
activity is governmental or proprietary.
Using the Britt test, courts look to see
whether an undertaking is one 'traditionally'
provided by the local governmental units.
Hickman, 108 N.C. App. at 84, 422 S.E.2d at 451-52 (citations
omitted).
Certain activities qualify as “clearly governmental such as
law enforcement operations and the operation of jails, public
libraries, county fire departments, public parks and city garbage
services.” Hare, 99 N.C. App. at 698, 394 S.E.2d at 235. “Non-
traditional governmental activities such as the operation of a
golf course or an airport are usually characterized as
proprietary functions.” Id. at 699, 394 S.E.2d at 235.
In advocating designation of the Program as a traditional
governmental activity, defendants rely upon Kiddie Korner v.
Board of Education, 55 N.C. App. 134, 285 S.E.2d 110 (1981),
disc. review denied, 305 N.C. 300, 291 S.E.2d 150 (1982), wherein
this Court viewed an after-school program as a “supplemental
educational experience” and as an operation within the defendant
school board's “[legislatively granted] power and authority.”
Id. at 140, 285 S.E.2d at 114. In Kiddie Korner, the Charlotte-
Mecklenburg Board of Education had established a committee to
operate an after-school program at Dilworth Elementary School
(the Dilworth program). Id. at 135-36, 285 S.E.2d at 112. TheDilworth program was designed to “alleviate the problem of the
'latch key' child,” i.e., a child “left without supervision
between the time school closes and the time [the child's] parents
come home from work.” Id. at 135 n.1, 285 S.E.2d at 112 n.1.
Instead of leaving school at the end of
the regular school day, the students enrolled
in the [Dilworth] program remain[ed] at
school where, under the supervision of
program staff, they d[id] homework or study,
and engage[d] in athletic or artistic
activities.
Id. at 136, 285 S.E.2d at 112. “[T]he program [wa]s self-
sufficient, the operating costs being covered by the $15.00 per
week tuition charged to the participants.” Id.
In similar vein, plaintiff testified she placed Michael in
the Program because he “needed a safe place . . . to stay after
school until [his parents] could pick him up after work,” thereby
resolving plaintiff's “latch key” child situation. Further, like
the Dilworth program, the Program herein did not constitute part
of the regular school curriculum, charged a fee, and provided
recreation for . . . children, a nutritious
snack, homework time, . . . tutoring in areas
that they may [have] need[ed] help . . . ,
hands-on type[s] of learning, science
activities and music activities, language
arts . . . [and] all kinds of different
activities by way of play.
Careful comparison leads to the conclusion that the Program
is indistinguishable from that reviewed in Kiddie Korner. UnderKiddie Korner and the test enunciated in Britt, therefore, the
Program is properly characterized as “an undertaking . . .
'traditionally' provided by the local governmental units,”
Hickman, 108 N.C. App. at 84, 422 S.E.2d at 452 (citation
omitted), and correctly classified as a “supplemental educational
experience,” Kiddie Korner, 55 N.C. App. at 140, 285 S.E.2d at
114.
Plaintiff concedes that “governments in North Carolina have
traditionally engaged in activities involving the education of
children.” However, plaintiff advances the further contention
that the Program is more accurately described as a day-care
facility, and thus a non-traditional governmental activity, in
that it is subject to N.C.G.S. § 110-85 et seq. and the rules and
regulations established by the Child [Day] Care Commission.
Plaintiff is mistaken.
Significantly, plaintiff cites no legal authority, and our
research has disclosed none, supporting her contention. To the
contrary, similar to our conclusion in Kiddie Korner that the
Dilworth program was not subject to G.S. § 110-85 et seq. and
attendant day-care regulations, see Kiddie Korner, 55 N.C. App.
at 137, 285 S.E.2d at 113, we observe the Program fails to meet
the statutory definitional requirement that it operate “for more
than four hours per day.” See G.S. § 110-86(3) (defining day-care facility as “any day-care center or child-care arrangement
which provides day care on a regular basis for more than four
hours per day . . . .) (emphasis added); cf. 60 N.C. Op. Atty.
Gen. 36 (1990) (“the General Assembly intended all programs
operated by public schools under the authority conferred upon
them by the General Assembly and the State Board of Education to
be exempt from licensure and regulation by the Day Care
Commission”). Plaintiff's reliance on G.S. § 110-85 et seq. is
thus unfounded.
In addition, plaintiff places great weight upon the
circumstance that she is charged a weekly fee for Michael's
participation in the Program. This Court has observed that
“[c]harging a substantial fee to the extent that a profit is made
is strong evidence that the activity is proprietary.” Hare, 99
N.C. App. at 699, 394 S.E.2d at 235. However, no evidence in the
record sub judice reveals the profit, if any, derived by the
Board from the weekly fees collected from participants in the
Program.
Moreover, taking into consideration the twenty hour per week
operation of the Program, simple mathematical calculation places
plaintiff's weekly fee payment at less than two dollars per hour
for Michael's enrollment. It is doubtful that such a fee
structure, which must account for costs of activities, materials,staff compensation and refreshments, may fairly be described as
“substantial.” Id. at 699, 394 S.E.2d at 235.
In short, application of Kiddie Korner and the principles
enunciated in Britt compels inclusion of the Program within the
class of activities regarded as traditional governmental
functions. See Rowan County Bd. of Education v. U.S. Gypsum Co.,
332 N.C. 1, 10, 418 S.E.2d 648, 654-55 (1992) (“[e]ducation is a
governmental function so fundamental in this state that our
constitution contains a separate article entitled 'Education'”
[and] “the construction and maintenance of local public schools
by a local school board is . . . a governmental function”); see
also Hickman, 108 N.C. App. at 84, 422 S.E.2d at 452 (“[t]he
creation and operation of . . . recreation programs are
legitimate and traditional functions of government”); cf. Dollar
v. Dalton Public Schools, 233 Ga. App. 827, 828, 505 S.E.2d 789,
790 (1998) (“after-school program, for which [plaintiff] paid a
fee, . . . operated by
a school district [on school premises] . . . is . . . a
governmental activity”); Abrams v. City of Rockville, 88 Md. App.
588, 604, 596 A.2d 116, 124 (1990) (after-school program
“designed to provide an educational and socialization program to
children in the city as well, no doubt, to safeguard andsupervise them while their parents were at work . . . . [is] of a
governmental nature”). Under N.C.G.S. § 115C-42 (1997),
therefore, the Board is entitled to governmental immunity to the
extent it has not been waived by the purchase of liability
insurance. Overcash v. Statesville City Bd. of Educ., 83 N.C.
App. 21, 24, 348 S.E.2d 524, 527 (1986).
Plaintiff does not dispute defendants' assertion that “the
Board had no insurance coverage in effect on [the date of
Michael's injury] that might be applicable to the first
$1,000,000 in damages.” The trial court thus erred by failing to
direct partial summary judgment in favor of the Board for
plaintiff's claims below that amount, see Boudreau, 322 N.C. at
342-43, 368 S.E.2d at 858, and this matter must be remanded for
entry of such order.
[2]Defendants next argue that because Breeden and Owens
were “sued only in their official capacity,” they were “entitled
to partial summary judgment to the same extent as the Board.” We
cannot agree.
Our Supreme Court examined the distinction between official
and individual capacity claims in Meyer v. Walls, 347 N.C. 97,
489 S.E.2d 880 (1997):
The crucial question for determining
whether a defendant is sued in an individual
or official capacity is the nature of therelief sought, not the nature of the act or
omission alleged. . . . If money damages are
sought, the court must ascertain whether the
complaint indicates that the damages are
sought from the government or from the pocket
of the individual defendant. If the former,
it is an official-capacity claim; if the
latter, it is an individual-capacity claim;
and if it is both, then the claims proceed in
both capacities.
Id. at 110, 489 S.E.2d at 887 (citation omitted).
Further,
It is true that it is often not clear in
which capacity the plaintiff seeks to sue the
defendant. In such cases it is appropriate
for the court to either look to the
allegations contained in the complaint to
determine plaintiff's intentions or assume
that the plaintiff meant to bring the action
against the defendant in his or her official
capacity.
Mullis v. Sechrest, 347 N.C. 548, 552, 495 S.E.2d 721, 723 (1998)
(citation omitted).
In the case sub judice, plaintiff has sought monetary
damages, but failed to specify in the caption of her complaint
whether Breeden and Owens were being sued in their official or
individual capacities. It is now clear that “in order for
defendant[s] . . . to have an opportunity to prepare a proper
defense, [a] pleading should . . . clearly state[] the capacity
in which [defendants are] being sued.” Id. at 552, 495 S.E.2d at
724. As noted in Mullis:
It is a simple matter for attorneys to
clarify the capacity in which a defendant is
being sued. Pleadings should indicate in the
caption the capacity in which a plaintiff
intends to hold a defendant liable. For
example, including the words “in his official
capacity” or “in his individual capacity”
after a defendant's name obviously clarifies
the defendant's status. In addition, the
allegations as to the extent of liability
claimed should provide further evidence of
capacity. Finally, in the prayer for relief,
plaintiffs should indicate whether they seek
to recover damages from the defendant
individually or as an agent of the
governmental entity.
Id. at 554, 495 S.E.2d at 724-25.
Notwithstanding, as the instant suit was filed prior to the
decisions in Meyer and Mullis, we decline defendants' invitation
to reverse the trial court upon the ground that plaintiff's
complaint failed to meet the requirements thereof. Rather, we
proceed to examine the “course of the proceedings and allegations
contained in the pleading to determine the capacity in which
defendant[s] [Breeden and Owens have] be[en] sued.” Mullis, 347
N.C. at 553, 495 S.E.2d at 724.
Defendants suggest the “only indication that might possibly
lead to the conclusion that [Breeden] and [Owens] were sued in
their individual capacit[ies]” is found in plaintiff's prayer for
relief “jointly and severly [sic].” We conclude the language ofplaintiff's request for relief indeed implies that “damages
[we]re [being] sought from the . . . pocket[s]” of Breeden and
Owens in their individual capacities, Meyer, 347 N.C. at 110, 489
S.E.2d at 887, but find further indications supporting this
conclusion as well.
For example, in the section of her complaint identifying
“Parties, Jurisdiction and Venue,” plaintiff alleged that Breeden
and Owens were “citizen[s] and resident[s] of Charlotte,
Mecklenburg County, North Carolina,” and only in a subsequent
paragraph linked them to the Board as agents. By contrast, the
allegations of residency and agency in Mullis were included in a
single paragraph. See Mullis, 347 N.C. at 553, 495 S.E.2d at
724.
More significantly, plaintiff's complaint posited two
separate causes of action, the first asserting “Negligence of
Defendant Board of Education,” and the second “Negligence of
Defendants Breeden and Owens.” See id. (circumstance that
plaintiffs “only set forth one claim for relief” relevant in
determining intended capacity of defendants).
Thus, in view of the “course of the proceedings and the
allegations contained in the [pleading],” id., plaintiff's
complaint adequately reflected “an intent . . . to sue
defendant[s]” Breeden and Owens in their individual capacitiessuch that defendants had an “opportunity to prepare a proper
defense.” Id. at 554, 495 S.E.2d at 725.
[3]Our courts have long recognized that public officers and
public employees are generally afforded different protections
under the law when sued in their individual capacities. Having
determined Breeden and Owens to have been sued individually, we
therefore next consider whether each qualifies as a public
officer or public employee.
“An essential difference between a public office and mere
employment is the fact that the duties of the incumbent of an
office shall involve the exercise of some portion of sovereign
power.” State v. Hord, 264 N.C. 149, 155, 141 S.E.2d 241, 245
(1965).
A public officer is shielded from liability
unless he engaged in discretionary actions
which were allegedly: (1) corrupt, Wiggins
v. City of Monroe, 73 N.C. App. 44, 49, 326
S.E.2d 39, 43 (1985); (2) malicious, id.; (3)
outside of and beyond the scope of his
duties, id.; (4) in bad faith, Hare, 99 N.C.
App. at 700, 394 S.E.2d at 236; or (5)
willful and deliberate, Harwood v. Johnson,
92 N.C. App. 306, 310, 374 S.E.2d 401, 404
(1988).
Reid v. Roberts, 112 N.C. App. 222, 224, 435 S.E.2d 116, 119,
disc. review denied, 335 N.C. 559, 439 S.E.2d 151 (1993).
A public employee, on the other hand, “is personally liable
for negligence in the performance of his or her dutiesproximately causing an injury,” Hare, 99 N.C. App. at 700, 394
S.E.2d at 236, “even though his employer is clothed with
immunity and not liable on the principle of respondeat superior.”
Pharr v. Worley, 125 N.C. App. 136, 138, 479 S.E.2d 32, 34 (1997)
(citation omitted).
In light of the foregoing authorities, we believe Breeden
and Owens are properly designated public employees and not public
officials. Their duties as staff members of the Program when the
alleged negligence occurred cannot be considered in the eyes of
the law to involve the exercise of the sovereign power. To the
contrary, a schoolteacher “is an employee and not an officer and
is therefore not entitled to governmental immunity as [his or]
her duties are purely ministerial. . . .” Daniel v. City of
Morganton, 125 N.C. App. 47, 55, 479 S.E.2d 263, 268 (1997).
Accordingly, defendants Breeden and Owens may be held personally
liable for negligent acts in the performance of their duties, see
id., and the trial court did not err in denying defendants'
motion as it pertained to plaintiff's claims against Breeden and
Owens in their individual capacities.
However, Breeden and Owens were entitled to partial summary
judgment to the same extent as the Board for claims against them
in their official capacities. See Moore v. City of Creedmoor,
345 N.C. 356, 367, 481 S.E.2d 14, 21 (1997) (official-capacitysuits merely another means of pleading an action against the
governmental entity), and the trial court erred by denying this
portion of defendants' motion.
In sum, the trial court's denial of defendants' motion as to
the Board and to Breeden and Owens in their official capacities
is reversed and this matter remanded for entry of partial summary
judgment in favor of said defendants on plaintiff's claims below
$1,000,000.00. The trial court's denial of defendants' motion as
it pertained to the claims of plaintiff against Breeden and Owens
in their individual capacities is affirmed.
Reversed and remanded in part; affirmed in part.
Judges WALKER and McGEE concur.
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