Petho v Wakeman, (02-1338) 08/05/2003

Appeal by defendants from order entered 9 July 2002 by Judge J. Gentry Caudill in Superior Court, Mecklenburg County. Heard in the Court of Appeals 12 June 2003.

Crews and Klein, P.C., by Paul I. Klein and Katherine Freeman, for plaintiff-appellee.

Helms Mulliss & Wicker, PLLC, by James G. Middlebrooks, Jill C. Griset and Laura M. Snead, for defendants-appellants.

    McGEE, Judge.

    Douglas A. Petho (plaintiff), as Administrator of the Estate of Jaycoby L. Williams, filed a wrongful death complaint against Shawnee Wakeman (Ms. Wakeman) and Shirley Hood (Ms. Hood), individually and not in their official capacities, and the Charlotte-Mecklenburg Board of Education (the Board), collectively referred to as defendants, on 19 July 2001. Defendants filed an answer dated 15 August 2001. Defendants filed a motion for summary judgment on 23 May 2002. Following a hearing, the trial courtfiled an order on 9 July 2002 in which it: (1) denied summary judgment as to defendants Ms. Wakeman and Ms. Hood, individually and not in their official capacities; (2) granted summary judgment "as to Defendant Charlotte-Mecklenburg Board of Education as to Plaintiff's claims for damages in an amount equal to or less than $1,000,000"; and (3) denied summary judgment as to defendant Charlotte-Mecklenburg Board of Education "only as to Plaintiff's claims for damages in amounts greater than $1,000,000." Defendants appeal.
    The evidence before the trial court on summary judgment tended to show the following. Jaycoby Williams (the child) was a seven- year-old-boy who attended Lincoln Heights Elementary School in Charlotte, North Carolina. The child had multiple handicaps, including Down Syndrome and severe behavioral problems. He began the school year on 16 August 1999 in a special education class taught by Ms. Wakeman and Ms. Hood, his teachers from the previous school year.
    The child went with his class to eat lunch in the school cafeteria. The lunch period began at 10:45 a.m. While the class was eating lunch, the child attracted Ms. Wakeman's attention by pulling her arm and patting his chest. Ms. Wakeman believed that the child was going to vomit, so she walked him across the cafeteria to a trash can and directed him to use the trash can. When he did not vomit, Ms. Wakeman suspected that he was choking and called out for Ms. Hood to call 911. Ms. Wakeman, and then the school nurse, unsuccessfully attempted first aid.    The local ambulance service, MEDIC, was dispatched to the school at 11:02 a.m. Upon arrival at the school at 11:09 a.m., the MEDIC personnel found the child unresponsive and not breathing and noted oral cavity trauma and copious blood. They also observed a piece of a hot dog deep in his airway, which they broke and removed. The child was intubated and transported to the local hospital, where he died.
            Summary judgment should be rendered only when the pleadings, depositions, answers to interrogatories, admissions, and affidavits disclose no genuine issue of material fact entitling the moving party to judgment as a matter of law. If an issue of material fact exists, then the trial court should not grant summary judgment. The party moving for summary judgment has the burden of establishing the absence of any triable issue of fact.

Thomco Realty, Inc. v. Helms, 107 N.C. App. 224, 226, 418 S.E.2d 834, 835-36, disc. review denied, 332 N.C. 672, 424 S.E.2d 407 (1992) (citations omitted).
        "The movant may meet this burden by proving that an essential element of the opposing party's claim is nonexistent, or by showing through discovery that the opposing party cannot produce evidence to support an essential element of his claim or cannot surmount an affirmative defense which would bar the claim."

Id. at 228, 418 S.E.2d at 837 (quoting Roumillat v. Simplistic Enterprises, Inc., 331 N.C. 57, 63, 414 S.E.2d 339, 342 (1992)). "Once the moving party meets its burden, the non-movant must come forward with facts showing that it will be able to make out a prima facie case at trial." Hallman v. Charlotte-Mecklenburg Bd. of Educ., 124 N.C. App. 435, 437, 477 S.E.2d 179, 180 (1996).     We first note that defendants appeal from an order granting in part, and denying in part, their motion for summary judgment. The denial of a motion for summary judgment is interlocutory and not immediately appealable. Lee v. Baxter, 147 N.C. App. 517, 519, 556 S.E.2d 36, 37 (2001). This rule is designed to prevent fragmented, premature, and unnecessary appeals by permitting the trial court to bring a case to final judgment before submitting it to the appellate courts. Id. A party may only appeal an interlocutory order where the order affects a substantial right that "will clearly be lost or irremediably adversely affected if the order is not reviewable before final judgment." Blackwelder v. Dept. of Human Resources, 60 N.C. App. 331, 335, 299 S.E.2d 777, 780 (1983).
    Although defendants' appeal is interlocutory, our Court has held that when an order "declines to recognize a claim of governmental immunity on the part of defendants, it is subject to immediate appeal on that issue, as a substantial right is affected." Andrews v. Crump, 144 N.C. App. 68, 74, 547 S.E.2d 117, 122, disc. review denied, 354 N.C. 215, 553 S.E.2d 907 (2001); see Denegar v. City of Charlotte, 115 N.C. App. 166, 166-67, 443 S.E.2d 778, 779 (1994). Defendants' appeal is therefore properly before us to the extent that it is based on the defense of governmental immunity. Defendants' additional arguments are interlocutory and we do not address those issues. See Kephart v. Pendergraph, 131 N.C. App. 559, 562, 507 S.E.2d 915, 918 (1998).
    Defendants first argue the trial court erred in failing to hold that the Board has governmental immunity for amounts in excessof $1,000,000. "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, 124 N.C. App. at 437, 477 S.E.2d at 180. N.C. Gen. Stat. § 115C-42 (2001) states:
            Any local board of education, by securing liability insurance as hereinafter provided, is hereby authorized and empowered to waive its 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 waiver of sovereign immunity may not be lightly inferred and statutes waiving this immunity must be strictly construed. Herring v. Winston-Salem/Forsyth County Bd. of Educ., 137 N.C. App. 680, 685, 529 S.E.2d 458, 462, disc. review denied, 352 N.C. 673, 545 S.E.2d 423 (2000). "The statute makes clear that unless the negligence or tort is covered by the insurance policy, sovereign immunity has not been waived by the Board or its agents." Beatty v. Charlotte-Mecklenburg Bd. of Education, 99 N.C. App. 753, 755, 394 S.E.2d 242, 244 (1990), disc. review improvidently allowed, 329 N.C. 691, 406 S.E.2d 579 (1991).
    In a motion for summary judgment, "[s]upporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to thematters stated therein." N.C. Gen. Stat. § 1A-1, Rule 56(e) (2001). "The converse of this requirement is that affidavits or other material offered which set forth facts which would not be admissible in evidence should not be considered when passing on the motion for summary judgment." Borden, Inc. v. Brower, 17 N.C. App. 249, 253, 193 S.E.2d 751, 753, rev'd on other grounds, 284 N.C. 54, 199 S.E.2d 414 (1973). Portions of an affidavit that are simply the affiant's legal conclusions are not facts that would be admissible into evidence and are not considered on a motion for summary judgment. Singleton v. Stewart, 280 N.C. 460, 467, 186 S.E.2d 400, 405 (1972).
    In the case before us, the only evidence that the Board's insurance policy would not cover damages sought by the child is found in the affidavit of Greg Gaskins, the acting manager of the Risk Management Division of the Finance Department of the City of Charlotte. Gaskins' affidavit offered a mixture of evidence and conclusions regarding the Board's insurance coverage. The portions of Gaskins' affidavit containing opinions and conclusions of law must be disregarded. After disregarding the objectionable portions of Gaskins' affidavit, only the following portions that are relevant to the Board's insurance coverage remain.
        6.    The Board's Comprehensive General Liability Policy covering the period from May 1, 1999 to May 1, 2000 contains a Self-Insured Retention Limit of $1,000,000. The Policy also contains a Self-Insured Retention Endorsement that provides that "When the insured's legal obligation to pay damages to which this insurance applies has been determined, and: (1) the amount of such damages isgreater than the Self-Insured Retention Amount, and (2) the insured has paid the Self-Insured Retention amount to the claimant, then and only then will the insured be entitled to make claim for indemnity under this Policy."

            . . . .

        11.    The Policy further provides that it "is not intended by the insured to waive its governmental immunity as allowed by North Carolina Statutes Sec. 115C-42."

    After reviewing the evidence in the record, we hold that defendants are not entitled to summary judgment on the issue of governmental immunity for amounts greater than $1,000,000. Defendants have failed to offer sufficient evidence demonstrating that the Board was not covered under its insurance policy and has not waived governmental immunity for amounts in excess of $1,000,000. An examination of the record shows that no copy of the Board's insurance policy was entered into evidence or considered by the trial court. While Mr. Gaskins' affidavit provides some evidence regarding the Board's lack of insurance coverage, the evidence in the affidavit is insufficient to establish that the Board retained governmental immunity above $1,000,000 or that it is not obligated to pay any judgment above that amount. The evidence also fails to identify the "insured" and does not adequately provide the terms of the Board's Comprehensive General Liability Policy to determine the full extent of its coverage or lack thereof. As a result, defendants have failed to show that plaintiff will be unable to surmount the affirmative defense of governmental immunity.    Defendants argue that plaintiff has offered no evidence regarding the issue of governmental immunity. However, since defendants have failed to meet their initial burden of demonstrating that plaintiff will be unable to surmount the affirmative defense, the burden of establishing facts supporting a prima facie case for trial has not been shifted to plaintiff. Hallman, 124 N.C. App. at 437, 477 S.E.2d at 180. After examining the record, we hold that defendants did not present evidence to entitle them to summary judgment on the issue of the Board's governmental immunity on amounts in excess of $1,000,000. Accordingly, the trial court did not err in denying summary judgment for defendants on this issue. This assignment of error is without merit.
    Defendants next argue the trial court erred in denying summary judgment for Ms. Wakeman on the issue of public official immunity. In Daniel v. City of Morganton, 125 N.C. App. 47, 55, 479 S.E.2d 263, 268-69 (1997), this Court held that a teacher was an employee and not an officer and therefore not entitled to governmental immunity. In holding that teachers may be held personally liable for negligent acts in the performance of their duties, we classified the duties of a teacher as "'ministerial'" and not involving the exercise of sovereign power. Id. In Mullis v. Sechrest, 126 N.C. App. 91, 98, 484 S.E.2d 423, 427 (1997), rev'd on other grounds, 347 N.C. 548, 495 S.E.2d 721 (1998), and Schmidt v. Breeden, 134 N.C. App. 248, 259, 517 S.E.2d 171, 178 (1999), our Court reaffirmed that teachers are not entitled to governmentalimmunity for their negligent actions in their individual capacities.
    This Court is bound by our previous decisions under the principle of stare decisis. Reid v. Town of Madison, 145 N.C. App. 146, 151, 550 S.E.2d 826, 829 (2001), review improvidently allowed, 355 N.C. 276, 559 S.E.2d 786 (2002). "'The determination of a point of law by a court will generally be followed by a court of the same or lower rank if a subsequent case presents the same legal problem . . . .'" Dunn v. Pate, 106 N.C. App. 56, 60, 415 S.E.2d 102, 104 (1992) (quoting 20 Am. Jur. 2d Courts § 183 (1965)), reversed on other grounds, 334 N.C. 115, 431 S.E.2d 178 (1993). Based on established case law, Ms. Wakeman is not entitled to governmental immunity and the trial court did not err in denying defendants' motion for summary judgment. This assignment of error is without merit.
    As previously stated, defendants' appeal is properly before this Court only to the extent it is based on the defense of governmental immunity. Defendants' remaining arguments are interlocutory and defendants have failed to show that they affect a substantial right that entitles them to review before the trial court renders a final judgment. Accordingly, we do not address those issues in this appeal. See Kephart, 131 N.C. at 562, 507 S.E.2d at 918.
    Affirmed.
    Judges BRYANT and GEER concur.
    Report per Rule 30(e).

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