ROBERT ERNEST WILLETT, Plaintiff, v. THE CHATHAM COUNTY BOARD OF
Appeal by Plaintiff from judgment entered 13 December 2004 by
Judge James M. Webb in Superior Court, Chatham County. Heard in
the Court of Appeals 24 January 2006.
Staton, Doster, Post, & Silverman, Norman C. Post, Jr., for
Cranfill, Sumner & Hartzog, LLP, Stephanie Hutchins Autry and
Alycia S. Levy; and Allison B. Schafer, for
Tharrington Smith, LLP, Deborah Stagner
, for the North
Carolina School Boards Association, amicus curiae.
School boards enjoy the right of governmental immunity absent
waiver or a statute to the contrary.
(See footnote 1)
In this case, Plaintiff
Robert Ernest Willett argues that a school board's participation in
the North Carolina School Board Trust Fund and performance of a
proprietary function constituted waivers; he also asserts the
existence of a statutory cause of action. Because his arguments
are not supported by North Carolina law, we reject Plaintiff's
On 9 February 2000, while attending a middle school basketball
game at Moncure Elementary School (a public school in Chatham
County), Mr. Willett
allegedly suffered injuries when the bleachers
in the gymnasium folded, caught his ankle and caused him to fall.
Mr. Willett brought an action for damages alleging that Defendant
Chatham County Board of Education (Chatham School Board)
its governmental immunity by participating in the North Carolina
School Board Trust Risk Management Program, and by engaging in a
proprietary function. Mr. Willett further alleged that section
115C-524(b) of the North Carolina General Statutes implicitly
creates a cause of action, not barred by governmental immunity, for
injuries arising from the failure to maintain all school buildingsin good repair and proper condition.
he trial court
granted summary judgment in favor of the Chatham School Board on
sovereign immunity grounds.
Mr. Willett appeals to this Court.
 On appeal, Mr. Willett first argues that the Chatham
School Board waived governmental immunity under section 115C-42 of
the North Carolina General Statutes by entering into a general
trust fund agreement with the North Carolina School Board Trust.
We need not further consider this argument because
in Lucas v.
Swain County Bd. of Educ.
, 154 N.C. App. 357, 365, 573 S.E.2d 538,
, this Court specifically rejected it.
Ripellino v. North Carolina Sch. Bd.'s Ass'n
158 N.C. App. 423,
429, 581 S.E.2d 88, 92-93 (2003)
(holding that the Johnston County
Board of Education's participation in the North Carolina School
Board Trust did not constitute a waiver of immunity for claims up
to $ 100,000.00),
, 358 N.C. 156, 592 S.E.2d 694
Accordingly, we reject this
assignment of error as barred
by binding precedents. See In re Civil Penalty
, 324 N.C. 373, 384,
379 S.E.2d 30, 37 (1989)
(Where a panel of the Court of Appeals
has decided the same issue, albeit in a different case, a
subsequent panel of the same court is bound by that precedent,
unless it has been overturned by a higher court.).
 Mr. Willett further contends the Chatham School Boardwaived its governmental immunity by engaging in a proprietary
function. Specifically, he argues that by operating a basketball
game and charging admission, the Chatham School Board profited and
therefore waived its governmental immunity. This argument is also
Governmental immunity shields a state entity in the
performance of governmental functions, but not proprietary
functions. Hickman v. Fuqua
, 108 N.C. App. 80, 82-83, 422 S.E.2d
449, 451 (1992), disc. review denied
, 333 N.C. 462, 427 S.E.2d 621
(1993). Our Supreme Court distinguished governmental functions
from proprietary functions by stating, 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. Britt v. City of Wilmington
, 236 N.C.
446, 451, 73 S.E.2d 289, 293 (1952).
In applying the Britt
test, this Court has held, [c]harging
a substantial fee to the extent that a profit is made is strong
evidence that the activity is proprietary. Hare v. Butler
N.C. App. 693, 699, 394 S.E.2d 231, 235, disc. review denied,
N.C. 634, 399 S.E.2d 121 (1990). However, a 'profit motive' is
not the sole determinative factor when deciding whether an activity
is governmental or proprietary. Hickman
, 108 N.C. App. at 84, 422S.E.2d at 451-52 (citation omitted); see also State Art Museum
Bldg. Comm'n v. Travelers Indem. Co.
, 111 N.C. App. 330, 335, 432
S.E.2d 419, 422 (the mere receipt of private funds does not render
the State's actions proprietary), disc. review denied
, 335 N.C.
181, 438 S.E.2d 208 (1993); McCombs v. City of Asheboro
, 6 N.C.
App. 234, 241, 170 S.E.2d 169, 174 (1969) (actual profit is not
the test, and the city will not lose its government immunity solely
because it is engaged in an activity which makes a profit.).
Instead, courts look to see whether an undertaking is one
'traditionally' provided by the local governmental units.
, 108 N.C. App. at 84, 422 S.E.2d at 452.
In this case, Mr. Willett contends that the Chatham School
Board's operation of a competitive basketball team is not within
the purview of traditional government activities. However, section
115C-47(4) of the North Carolina General Statutes confers exclusive
authority on all local school boards to operate an athletic
program. Section 115C-47(4) provides in pertinent part:
In addition to the powers and duties
designated in G.S. 115C-36, local boards of
education shall have the power or duty:
(4) To Regulate Extracurricular Activities.
Local boards of education shall make all rules
and regulations necessary for the conducting
of extracurricular activities in the schools
under their supervision, including a program
of athletics, where desired, without assuming
provided, that allinterscholastic athletic activities shall be
conducted in accordance with rules and
regulations prescribed by the State Board of
N.C. Gen. Stat. § 115C-47(4) (2005). The General Assembly's
mandate in section 115C-47(4) leaves little room for doubt as to
whether the school board's operation of an athletic program is a
traditional government function. The fact that section 115C-47(4)
grants all local boards of education across the state the exclusive
authority to control the interscholastic athletic program for the
county's public schools renders this function traditionally
governmental in nature. The statute further provides that the
local boards shall not incur liability by virtue of its control
over activities of the athletic program, making it clear that the
local boards are not waiving their governmental immunity. See
North Carolina Utilities Comm'n v. McKinnon
, 254 N.C. 1, 11, 118
S.E.2d 134, 142 (1961) (In our opinion, the phrase 'without
assuming liability therefor' was inserted for the purpose of making
it clear that such governing authorities were not waiving
Moreover, the Chatham School Board's charging admission to the
basketball game is not conclusive in determining that it engaged in
a proprietary activity. In McIver v. Smith
, this Court rejected
the assertion that one of the major tests in labeling a governmentactivity proprietary is whether a monetary fee is involved.
McIver v. Smith,
134 N.C. App. 583, 586, 518 S.E.2d 522, 525
(1999), disc. review improvidently allowed
, 351 N.C. 344, 525
S.E.2d 173 (2000). In that case, we held that the county's
ambulance service was not a proprietary activity, stating [t]he
fact that [the county] charged a fee for its ambulance service does
not alone make it a proprietary operation. Id.
at 587, 518 S.E.2d
at 525. Likewise, the fees charged in this case do not make the
basketball game held at the public school a proprietary operation.
The admission fee of $1.00 for students and $2.00 for parents was
hardly substantial, and there is no evidence in the record to
show that the basketball admission charges generated enough revenue
to pay for anything other than the school's athletic program.
Because the operation of an athletic program is an authority
conferred on the school board by the legislature, and the Chatham
School Board did not engage in a proprietary operation, we conclude
that the Chatham School Board did not waive its governmental
 Mr. Willett next contends that the trial court erred in
granting summary judgment because section 115C-524(b) of the North
Carolina General Statutes implicitly creates a cause of action--not
barred by governmental immunity--for injuries arising from the
failure to maintain all school buildings in good repair and propercondition. We disagree.
School boards enjoy the right of sovereign immunity absent a
statute to the contrary. Smith,
235 N.C. at 7, 68 S.E.2d at 787
(a subordinate division of the state, or agency exercising
statutory governmental functions like a city administrative school
unit, may be sued only when and as authorized by statute);
, 108 N.C. App. at 761, 425 S.E.2d at 468 (schools enjoy
the right of sovereign immunity absent a statute to the
North Carolina General Statute section 115C-524(b)
It shall be the duty of local boards of
education and tax-levying authorities, in
order to safeguard the investment made in
public schools, to keep all school buildings
in good repair to the end that all public
school property shall be taken care of and be
at all times in proper condition for use. . .
Notwithstanding the provisions of G.S.
115C-263 and 115C-264, local boards of
education may adopt rules and regulations
under which they may enter into agreements
permitting non-school groups to use school
real and personal property, except for school
buses, for other than school purposes so long
as such use is consistent with the proper
preservation and care of the public school
property. No liability shall attach to any
board of education, individually or
collectively, for personal injury suffered by
reason of the use of such school property
pursuant to such agreements.
N.C. Gen. Stat. § 115C-524(b) (2005). Generally, a statute allowsfor a private cause of action only where the legislature has
expressly provided a private cause of action within the statute.
Lea v. Grier
, 156 N.C. App. 503, 508, 577 S.E.2d 411, 415 (2003)
(quoting Vanasek v. Duke Power Co.
, 132 N.C. App. 335, 339, 511
S.E.2d 41, 44 (1999)).
Here, section 115C-24 does not expressly create a basis for an
individual to bring a claim against a local board of education for
its alleged failure to maintain school property in proper condition
Indeed, the plain language of the statute provides that
the local boards and tax-levying authorities must keep all school
buildings in good repair in order to safeguard the investment made
in public schools
N.C. Gen. Stat. § 115C-524(b) (emphasis
added). While Mr. Willett argues that section 115C-524(b)
creates a private right of action for individuals, our
courts have declined to infer or imply an abrogation of a school
board's immunity. See Ripellino,
158 N.C. App. at 428, 581 S.E.2d
at 92 (rules of strict construction apply to interpretation of
statutes dealing with curtailment of board's governmental
immunity); Overcash v. Statesville City Bd. of Educ.
, 83 N.C. App.
21, 26, 348 S.E.2d 524, 527 (1986) ([f]ollowing the rule of strict
construction, we decline to impose any further waiver not created
by the statute.). Accordingly, absent express language in section
115C-524 indicating that the statute curtails the school board'sgovernmental immunity, that immunity cannot be curtailed.
Judges HUNTER and JACKSON concur.
See Smith v. Hefner, 235 N.C. 1, 68 S.E.2d 783 (1952);
Lindler v. Duplin County Bd. of Educ., 108 N.C. App. 757, 425
S.E.2d 465 (1993).
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