An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA04-475


Filed: 1 March 2005

CRAIG HARPER, minor, by
and through his Guardian
Ad Litem, L. Lamont
Wiggins; and MICHAEL

v .                         Nash County
                            No. 02 CVS 2017
WAYNE DOLL, in his
individual capacity; JOHN
HAMMET, in his individual
capacity; and GEORGE
NORRIS; in his individual

    Appeal by defendant John Hammet from order entered 16 January 2004 by Judge John R. Jolly, Jr. in Nash County Superior Court. Heard in the Court of Appeals 17 November 2004.

    Robert L. White, for plaintiff-appellees.

    Valentine, Adams & Lamar, L.L.P., by Lewis W. Lamar, Jr., for defendant-appellant.

    CALABRIA, Judge.

    John Hammet (“defendant”) appeals the trial court's denial of his summary judgment motion. Because we conclude teachers are not entitled to public official immunity, we affirm.
    On 16 October 2001, Craig Harper (“plaintiff”), a sixteen- year-old junior at Rocky Mount Senior High School, was assigned to a weight lifting class taught by defendant. Approximately ten minutes prior to the end of the class, plaintiff and Marcus Jenkins(“Jenkins”) were straightening the weight room by, inter alia, returning the weights and bars to their proper place. While unloading the weights from a bar on one of the squat racks, Jenkins improperly removed the weights from one side before the corresponding weights from the other side were removed. As a result, the remaining weights caused the bar to tilt, and the weights and bar fell. Despite some conflict, all parties agree that either the weights, the bar, or both struck plaintiff on the head. Defendant was not in the room supervising the students at the time of the accident.
    Plaintiff suffered a depressed skull fracture and was taken to the hospital, where he underwent surgery. Plaintiff remained in the Intensive Care Unit for two days and was released from the hospital on 20 October 2001. At least until December of 2003, plaintiff was still receiving treatment for his injuries.
    In September 2002, plaintiff filed suit against defendant in his individual capacity; Wayne Doll, the principal of Rocky Mount Senior High School, in his individual capacity; and George Norris, the superintendent of the Nash-Rocky Mount County Schools, in his individual capacity. All three filed motions to dismiss under N.C. Gen. Stat. § 1A-1, Rule 12 (2003), and the trial court granted the motions only with respect to Wayne Doll and George Norris. Defendant answered the allegations contained in plaintiff's complaint and moved for summary judgment based on public official immunity, governmental immunity, and contributory negligence. The trial court denied defendant's motion. Defendant appeals.    As a preliminary matter, we note defendant's appeal from the denial of summary judgment is interlocutory. Satorre v. New Hanover County Bd. of Comm'rs, ___ N.C. App. ___, ___, 598 S.E.2d 142, 144 (2004). However, “[o]rders denying dispositive motions based on public official's immunity affect a substantial right and are immediately appealable.” Summey v. Barker, 142 N.C. App. 688, 689, 544 S.E.2d 262, 264 (2001). Accordingly, defendant's appeal is properly before this Court.
    Defendant asserts on appeal that summary judgment was improperly denied because “public officials sued in their individual capacity for the performance of job-related duties may not be held liable for mere negligence with respect to those duties, except under circumstances of bad faith, malice or corruption.” Summary judgment is appropriate when, viewing the evidence in the light most favorable to the non-movant, “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) (2003); Liberty Mut. Ins. Co. v. Pennington, 356 N.C. 571, 579, 573 S.E.2d 118, 124 (2002).
    The issue presented to this Court is whether defendant, as a North Carolina public school teacher, is entitled to public official immunity. While a “public officer is shielded from liability unless he engaged in discretionary actions which were allegedly: (1) corrupt; (2) malicious; (3) outside of and beyondthe scope of his duties; (4) in bad faith; or (5) willful and deliberate,” see Reid v. Roberts, 112 N.C. App. 222, 224, 435 S.E.2d 116, 119 (1993) (internal citations omitted), a public employee may be held individually liable for his negligence in the performance of his duties proximately causing injury. Givens v. Sellars, 273 N.C. 44, 49, 159 S.E.2d 530, 534-35 (1968). This Court has, as defendant concedes, previously addressed whether public official immunity should be extended to teachers. 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), this Court characterized a defendant teacher as “a public employee [and] not a public official . . . because his duties at the time the alleged negligence occurred [were] not considered in the eyes of the law to involve the exercise of the sovereign power[.]” Additionally, in Daniel v. City of Morganton, 125 N.C. App. 47, 55, 479 S.E.2d 263, 268 (1997), this Court observed a schoolteacher was “an employee and not an officer” with duties that were “purely ministerial” and did not “involve the exercise of sovereign power[.]” We likewise conclude that teachers are not public officers entitled to immunity and, therefore, hold the trial court correctly determined defendant was not entitled to summary judgment.
    Defendant asserts, in the alternative, that he was entitled to summary judgment on the grounds of public official immunity because he was the high school head varsity football coach. However, at the time plaintiff was injured, defendant was teaching the weightlifting class, not acting as the high school head varsity football coach. See Mullis, 126 N.C. App. at 98, 484 S.E.2d at 427 (analyzing the defendant teacher's “duties at the time the alleged negligence occurred”) (emphasis added). Accordingly, we find defendant's assertion unpersuasive.
    Judges HUNTER and LEVINSON concur.
    Report per Rule 30(e).

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