GAYLE KEARNEY, Administratrix
of the Estate of KIM WILLIAMS,
JR.,
Plaintiff,
v
.
North Carolina
Industrial Commission
VANCE COUNTY BOARD OF EDUCATION, I.C. No. TA-16855
Defendant.
Richard B. Harper for plaintiff appellant.
Attorney General Roy Cooper, by Special Deputy Attorney
General Amar Majmundar, for the State.
McCULLOUGH, Judge.
Plaintiff, the administratrix of the estate of the decedent,
Kim Williams, Jr., appeals from a decision and award of the North
Carolina Industrial Commission denying her claim under the North
Carolina Tort Claims Act, N.C. Gen. Stat. § 143-291, et seq. We
affirm.
On 1 June 1999 decedent Kim Williams, Jr., (“Kim”) was riding
Vance County School Bus No. 108 home from E.M. Rollins Elementary
School in Henderson, North Carolina. Kim was a seven-year-old
student. Four of Kim's siblings were also riding the same bus home
that afternoon. During the afternoon trip home, the bus was traveling on
Parham Street when the driver activated the bus' cautionary lights
and stop sign, and stopped the bus at the “T” intersection of
Parham Street and Spring Street to let Kim and his siblings (“the
Williams children”) disembark. The location of this stop required
the Williams children to cross Parham Street to get to their home
on Spring Street.
According to bus driver Jeffrey Strong, he followed the
procedure in place for dropping off students by counting all five
Williams children as they exited the bus, watching them cross the
street, and counting them again after they had crossed Parham
Street. According to Strong, his count revealed that all five
children had safely traversed the street and were proceeding in the
direction of their home.
After his final count, Strong checked the bus' mirrors and
became distracted upon noticing that a few of the student riders
were not seated. He admonished these children to return to their
seats, and they quickly complied. While Strong was dealing with
the unseated children, Kim returned to retrieve a piece of paper
that he had dropped. Angel Evans, a student aboard the bus,
witnessed Kim “actually g[et] all the way across the street” before
coming back for the paper. Evans later indicated that nobody told
Strong that Kim was again near the bus.
Following the distraction occasioned by the unseated
passengers, Strong checked the mirrors that provide a view of the
areas around the bus and saw nothing amiss. He then disengaged thebus' warning lights, and proceeded to move forward. After moving
only a few feet, Strong felt what he described as a “bump” that he
believed to be debris in the roadway. He immediately felt a second
bump. Upon looking in the rearview mirror, Strong then saw Kim's
body lying in the road behind the bus. Unfortunately, Kim suffered
fatal cranial injuries as a result of this accident.
Plaintiff Gale Kearney, administratrix of Kim's estate, filed
a claim for damages against defendant Vance County Board of
Education under the North Carolina Tort Claims Act. The claim
asserted that “[b]us driver Jeff Strong negligently ran over Kim
Williams, Jr. after discharging him from the school bus . . . [in
that] he was not paying attention when he drove off . . . .” The
defendant contested the claim.
Following a hearing, Deputy Commissioner George R. Hall, III,
entered a decision and order denying plaintiff's claim. Plaintiff
appealed to the Full Commission (“the Commission”), which also
entered a decision and order denying plaintiff's claim. The
Commission made the following findings of fact:
10. . . . While they were disembarking
from the bus, Mr. Strong counted the five
Williams children. Mr. Strong then observed
the five children cross in front of the bus,
go across Parham Street, and reach safety on
Spring Street. At that time, Mr. Strong then
again counted the five Williams children, who
were beginning to proceed to their home.
11. After counting the five Williams
children on Spring Street, Mr. Strong began a
check of the various mirrors on the bus,
including a rectangular mirror that provides a
view of the children seated behind him. Upon
checking this mirror, Mr. Strong noticed thata couple of students were not seated.
Therefore, Mr. Strong turned in his driver's
seat and indicated to the students that the
bus was about to move and that they needed to
return to seated positions. The students
immediately responded to Mr. Strong's
instructions.
12. Thereafter, Mr. Strong continued his
check of mirrors, including those mirrors that
provided views of possible traffic and those
that provide a view of the areas around the
bus. Satisfied that he could safely proceed,
Mr. Strong disengaged the various warning
lights and began to move forward. Within a few
feet, [the bus struck Kim, causing fatal
cranial injuries].
. . . .
16. Following [an] investigation,
[police officers who responded to the
accident] determined that there was no basis
upon which to file charges against Mr. Strong,
and concluded that Mr. Strong had operated the
bus properly.
17. Two eyewitnesses, Mr. Strong and
11-year[-]old Angel Evans, testified at the
hearing before Commissioner Hall that they
observed decedent disembark from the school
bus, cross in front of the school bus on
Parham Street, and reach a point of safety on
the other side of Parham Street. No evidence
was offered to refute this testimony. Angel
Evans was sitting on the driver's side of the
bus[,] and she stated that decedent dropped
something and came back across the street.
However, the evidence does not show how far
behind Mr. Strong Angel Evans was sitting or
whether she had the same or a different
vantage point than Mr. Strong.
18. . . . Vance County School officials
. . . conducted an independent investigation
that was later analyzed by a collection of
school bus traffic safety experts. After
reviewing the investigation findings and
reading the transcript of a deposition that
had been taken of Mr. Strong, these trafficsafety experts determined that Mr. Strong
properly operated School Bus No. 108.
19. The School Bus Drivers' Handbook
requires drivers to make sure no one is in
front of the bus by counting the passengers as
they unload and counting them again when they
are safely off the roadway. Mr. Strong counted
the children as they got off the bus and
counted the same number of children on the
side of the road after they had safely crossed
Parham Street.
20. The School Bus Drivers' Handbook for
Vance County instructs drivers to “never let a
discipline problem on the bus or any other
distraction interfere with checking your
passenger mirrors before leaving a passenger
stop.” Mr. Strong was momentarily distracted
after the Williams children had reached the
safe side of Parham Street, but after he got
his students to sit down, he closed his door,
checked all his mirrors for students and
traffic, and proceeded on his route as he is
required to do.
21. The School Bus Drivers' Handbook
requires a driver to get out and check around
the bus if he cannot account for each
passenger at a stop. Mr. Strong had already
observed the children reach safety along
Spring Street after crossing Parham Street in
front of the bus. Some of the Williams
children were running toward their home and
some were walking. Mr. Strong then got his
remaining passengers seated and checked all
his mirrors prior to leaving that stop.
22. [An expert witness] testified that
danger zones exist in front of the bus and
along a ten[-]foot area on either side of the
bus. These areas are considered danger zones
because there are blind spots that may not be
covered by the various mirrors around the bus.
[The expert] acknowledged that small children
may be in areas around the bus and not be
visible to the driver in the mirrors. However,
once the discharged passengers have reached
safety after crossing the road and have been
accounted for by the driver, the driver would
have no reason to get out of the bus and checkunder it unless he saw someone when he checked
his mirrors.
2[3]. Mr. Strong watched [Kim] and his
siblings safely cross the lanes of traffic on
Parham Street, reach a place of safety on the
other side of the street, and start down
Spring Street toward their home. Mr. Strong
counted all of the children after they reached
the other side of the street and checked his
mirrors, as he was required to do. Having seen
all the children safely across Parham Street,
Mr. Strong was not required to get out and
check under and around the bus, according to
the School Bus Drivers' Handbook.
2[4]. [T]he evidence of record fails to
prove that decedent's death was due to the
negligence of Mr. Strong. As shown by the
expert witness testimony, Mr. Strong followed
proper procedures and was paying attention to
his duties as a school bus driver. Therefore,
Mr. Strong acted in conformity with the school
bus driver standards of care and was not
negligent in the performance of his duties.
There is no evidence of record to indicate Mr.
Strong breached his duty of care in this
matter and that such breach of duty
proximately caused the death of decedent.
The Commission concluded that Kim's death was not the result of
negligence by Strong. One Commissioner dissented and concluded
that defendant should be liable because Strong negligently breached
a duty “to use due care to avoid injury to any child whom he
reasonably knew to be in the vicinity of the bus.”
Plaintiff now appeals to this Court, contending that the
Commission misapprehended the duty owed by a school bus driver to
a child passenger who has recently disembarked from the school bus.
Specifically, plaintiff insists that the Commission failed to
recognize that Strong was under a duty to, inter alia, be sure that
Kim remained in a safe place by accounting for his whereabouts afinal time before moving the bus or to exit the bus and inspect the
area around and under it if Kim could not be again accounted for.
Plaintiff further asserts, as an alternative theory, that Strong
necessarily breached his duty to use due care to avoid injury to a
child whom he knew to be within the vicinity of the bus.
We begin our analysis of plaintiff's arguments with the
standard of review. The North Carolina Tort Claims Act empowers
the Industrial Commission to adjudicate tort claims against a
county board of education arising from allegations of negligence by
the driver . . . of a public school bus . . .
when . . . [t]he driver is an employee of the
county . . . administrative unit of which that
board is the governing body, and the driver is
paid or authorized to be paid by that
administrative unit . . . and which driver was
at the time of the alleged negligent act or
omission operating a public school bus . . .
in accordance with [N.C. Gen. Stat. §]
115C-242 in the course of his employment
by . . . that administrative unit or
board . . . .
N.C. Gen. Stat. § 143-300.1(a)(1) (2003). Under the Act, a
decision of a hearing Commissioner may be appealed to the Full
Commission, which “may issue its own findings of fact and
conclusions of law.” N.C. Gen. Stat. § 143-292 (2003). A decision
and order of the Full Commission may be appealed to this Court;
“[s]uch appeal shall be for errors of law only under the same terms
and conditions as govern appeals in ordinary civil actions, and the
findings of fact of the Commission shall be conclusive if there is
any competent evidence to support them.” N.C. Gen. Stat. § 143-293
(2003). Thus, the standard of review in this Court is: “(1)whether competent evidence exists to support the Commission's
findings of fact, and (2) whether the Commission's findings of fact
justify its conclusions of law and decision.” Simmons v. N.C.
Dept. of Transportation, 128 N.C. App. 402, 405-06, 496 S.E.2d 790,
793 (1998). Where the Commission acts under a misapprehension of
law, an appellate court “will, where the ends of justice require,
remand the cause so that the evidence may be considered in its true
legal light.” Bailey v. Dept. of Mental Health, 272 N.C. 680, 684,
159 S.E.2d 28, 31 (1968).
With these principles in mind, we first address plaintiff's
primary argument on appeal, in which she contends that the
Commission failed to recognize that Strong had a duty to be sure
that Kim remained in a safe place by accounting for his whereabouts
a final time before moving the bus, and if Kim could not be
accounted for, to exit and inspect the areas around and under the
bus. We are not persuaded that the Commission erred in its
application of the law to the facts of the instant case.
“Under the [Tort Claims] Act, negligence is determined by the
same rules as those applicable to private parties.” Bolkhir v.
N.C. State Univ., 321 N.C. 706, 709, 365 S.E.2d 898, 900 (1988).
Thus, to make a prima facie case, “plaintiff must show that: (1)
defendant failed to exercise due care in the performance of some
legal duty owed to plaintiff under the circumstances; and (2) the
negligent breach of such duty was the proximate cause of the
injury.” Id. Our Supreme Court has held that the following principles
govern the duty of a school bus driver to young passengers:
[T]he presence of children on or near a
highway is a warning signal to a motorist. He
must recognize that children have less
capacity to shun danger than adults; are more
prone to act on impulse, regardless of the
attendant peril; and are lacking in full
appreciation of danger which would be quite
apparent to a mature person. When, therefore,
he sees, or by the exercise of due care should
see, that children are on the highway, he must
immediately bring his vehicle under control
and, in the exercise of ordinary care, proceed
in such manner and at such speed as is
reasonably calculated to enable him to avoid
striking such child or children.
This duty to exercise a high degree of
caution in order to meet the standard of care
required of a motorist when he sees or by the
exercise of ordinary care should see children
on a highway applies with peculiar emphasis to
the operator of a school bus transporting
children to their homes after school. His
passengers are in his care and he knows that
many of them must cross the road after they
alight from the bus. It is his duty to see
that those who do alight are in places of
safety before he again puts his vehicle in
motion.
Greene v. Mitchell County Bd. of Educ., 237 N.C. 336, 340, 75
S.E.2d 129, 131 (1953) (citations omitted). In Greene, five
children disembarked from a school bus at the same time and place,
and three of them had to cross over to the left side of the road to
reach their destination. Id. at 341, 75 S.E.2d at 132. The
Supreme Court affirmed the Commission's finding of negligence where
the driver began moving the bus forward as soon as the last child
had alighted, failed to give the children time to cross in front of
the bus, and “'drove away in a hasty manner while simultaneouslyclosing the bus door,'” thus causing fatal injury to one of the
children Id. On these facts, the Court concluded that the driver
was negligent because he “failed to exercise proper care to
ascertain that [the children] 'had crossed the highway in safety'
or were 'otherwise out of danger'” after discharging them from the
bus. Id. at 342, 75 S.E.2d at 132.
Likewise, this Court has subsequently affirmed a finding that
a school bus driver was negligent where the driver discharged a
six-year-old passenger and left him alone to attempt to maneuver
through the traffic of a busy highway, thus permitting the child to
be hit by another vehicle. Slade v. Board of Education, 10 N.C.
App. 287, 292, 178 S.E.2d 316, 319, cert. denied, 278 N.C. 104, 179
S.E.2d 453 (1971). In Slade, the child had been on a school bus
only twice before and, on those occasions, had been discharged on
the side of the street closest to his house; the Commission found
that the driver was negligent in discharging the child on the
opposite side of the street, immediately driving off, and releasing
traffic before the youth had crossed a busy street. Id. In
upholding the Commission's award, this Court reiterated that “[t]he
element of negligence present in Greene was not the failure of the
driver to exercise caution in the operation of his bus, but his
failure to ascertain that his discharged passenger was in a place
of safety before starting the bus forward.” Id. at 291, 178 S.E.2d
at 319. Further, we provided the following guidance with respect
to when a student reaches a place of safety after alighting from a
school bus: What constitutes a place of safety
depends upon the age, experience and ability
of the passenger. A place of safety for an
eighteen-year-old high school senior of
ordinary experience and intelligence might be
a place of peril for an inexperienced
six-year-old first grader. The care which a
school bus driver must exercise toward a
school bus passenger is proportionate to the
degree of danger inherent in the passenger's
youth and inexperience. We hold that under the
circumstances of this case the Commission
correctly refused to limit the responsibility
of the school bus driver to the mere discharge
of the minor plaintiff in a place where he
would be safe so long as he remained.
Id. at 295, 178 S.E.2d at 321.
The present plaintiff's argument relies heavily upon isolated
passages from Greene and Slade. In particular, she notes that the
Supreme Court indicated that “[i]t is [a bus driver's] duty to see
that those who do alight [from his bus] are in places of safety
before he again puts his vehicle in motion,” Greene, 237 N.C. at
340, 75 S.E.2d at 131 (emphasis added), and that this Court refused
“to limit the responsibility of the school bus driver to the mere
discharge of the minor plaintiff in a place where he would be safe
so long as he remained,” Slade, 10 N.C. App. at 295, 178 S.E.2d at
321 (emphasis added). According to plaintiff, the emphasized
language mandates that, even if a bus driver has seen a young
passenger disembark, reach a place of safety, and begin to travel
away from the driver's field of vision, the driver must again
account for the whereabouts of the child before moving the bus
forward notwithstanding that the driver may have no indication that
the child has returned to an area where he may be struck by thebus. Put differently, plaintiff essentially insists that the
quoted passages require a driver to be sure that a disembarked
student passenger remains in a safe place. However, plaintiff's
reading of the foregoing passages divorces the emphasized language
from the factual context of the quoted decisions and ignores the
significant factual differences between cases like Greene and Slade
and the case sub judice.
As further support for her contention that Strong was required
to again account for Kim or to inspect the exterior of the bus,
plaintiff also relies upon the following admonition in the North
Carolina Handbook for School Bus Drivers:
Do not release the stop sign until all
students are either on the bus or well off the
road on their side of the street or highway.
Always check the passenger mirrors just before
leaving a passenger stop. If the driver cannot
account for each passenger at a stop, he
should not move the bus until he gets out and
checks around and under the bus. Students
should remain seated until the bus has come to
a complete stop and only then move forward to
leave the bus. After passengers have boarded
the bus, the driver should not move the bus
until students are seated.
(Emphasis in original). We agree that, to comply with this
directive, a school bus driver sometimes may be required to exit
the bus to ensure that children who have not been accounted for and
who may be within a dangerous area near the bus will not be harmed.
However, we are unpersuaded that a driver is necessarily required
to do so if a youthful passenger has disembarked and reached a
place of safety and the driver has no reason to believe that the
child has returned to an area where he may be harmed. In the instant case, we conclude that the Commission correctly
applied the law respecting a bus driver's duty of care to its
findings of fact, which are in turn supported by competent evidence
in the record. Specifically, the Commission found that Strong
watched Kim and all of his siblings cross Parham Street and travel
down Spring Street towards their home and that he had no reason to
suspect that any of the children had come back within a zone of
danger. Further, it is implicit in the Commission's findings that
Strong was reasonable in believing that Kim had reached, and
remained in, a place of safety. Given these factual
determinations, the Commission properly determined that the driver
was not under a duty to exit the bus and inspect the areas around
and beneath it. The corresponding assignments of error are
overruled.
Plaintiff also argues as an alternative theory that the
dissenting Commissioner correctly concluded that Strong breached
his duty to use due care to avoid injury to a child whom he knew to
be within the vicinity of the bus. However, as already indicated,
a majority of the Commission necessarily determined that Strong
reasonably believed that Kim had moved out of the area in which the
bus might cause him harm and that Strong properly inspected his
mirrors to determine whether anyone was in the vicinity of the bus.
In light of these factual determinations, the Commission did not
err by failing to find that Strong breached his duty to avoid
injury to a child reasonably known to be in the vicinity of the
bus. The corresponding assignments of error are overruled. In addition, we have considered the remaining assignments of
error brought forward in plaintiff's brief and have determined that
they lack merit. Though we lament the tragic loss of young life
involved in the present case, we are unable to conclude that the
Commission erred in denying plaintiff's claim. Therefore, the
Commission's decision and order denying plaintiff's claim must be
Affirmed.
Judges ELMORE and LEVINSON concur.
Report per Rule 30(e).
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