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KATHLYN MARIE STEIN and MICHAEL HOOTSTEIN v. ASHEVILLE CITY BOARD
OF EDUCATION, COOPERATIVE LEARNING CENTER (a/k/a WOLFE CREEK
SCHOOL, now BUNCOMBE COMMUNITY SCHOOL WEST, at the time
administered jointly by BLUE RIDGE HUMAN SERVICES FACILITIES,
INC. and/or BLUE RIDGE MENTAL HEALTH and/or ASHEVILLE CITY BOARD
OF EDUCATION and/or BUNCOMBE COUNTY BOARD OF EDUCATION), BUNCOMBE
COUNTY BOARD OF EDUCATION, BLUE RIDGE CENTER FOR MENTAL HEALTH,
and BLUE RIDGE AREA AUTHORITY
FILED: 3 MARCH 2006
1. Negligence--per se--motion to dismiss--sufficiency of evidence
The trial court did not err by dismissing under N.C.G.S. § 1A-1, Rule 12(b)(6) plaintiffs'
claims of negligence per se resulting from the off-campus shooting of plaintiff wife by students
who attended defendant's school for behaviorally and emotionally handicapped juveniles,
because: (1) although violation of a public safety statute generally constitutes negligence per se,
the school bus driver and bus monitor were not obligated under N.C.G.S. § 115C-245(d) to
report conversations they overheard by the students about robbery and homicide not specific to
any time, place, or intended victim when the plain language of N.C.G.S. § 115C-245(d) reveals
the General Assembly enacted the statute to ensure the safety of the pupils and employees
assigned to public school buses; and (2) pupils and employees assigned to buses would constitute
the protected class of persons with standing to sue for injuries proximately resulting from
violations of the statute, and nothing in plaintiffs' amended complaint suggests plaintiffs belong
to the relevant protected class.
2. Negligence--common law--motion to dismiss--sufficiency of evidence
The trial court did not err by dismissing under N.C.G.S. § 1A-1, Rule 12(b)(6) plaintiffs'
claim of common law negligence resulting from the off-campus shooting of plaintiff wife by
students who attended defendant's school for behaviorally and emotionally handicapped
juveniles, because: (1) for common law negligence purposes, no special relationship exists
between a defendant and a third person unless the defendant knows or should know of the third
person's violent propensities and defendant has the ability and opportunity to control the third
person at the time of the third person's criminal acts; (2) while plaintiffs allege violent
tendencies on the part of the students, the complaint offers no basis for believing defendant had
the ability or the opportunity to control the students during the attack on plaintiff when the
shooting occurred about 8:15 p.m. at an intersection well after normal school hours and not on
property belonging to or under the supervision of defendant, and nowhere does plaintiffs'
amended complaint suggest the students were then truant due to defendant's inadequate
oversight; and (3) the complaint fails to allege the special relationship necessary to render
defendant liable for the harm to plaintiffs by third persons.
Justice TIMMONS-GOODSON did not participate in the consideration or decision of
Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of
a divided panel of the Court of Appeals, 168 N.C. App. 243, 608
S.E.2d 80 (2005), on orders entered 8 August 2003, 13 August
2003, and 8 September 2003 by Judge Zoro J. Guice, Jr. and anorder signed by Judge James E. Lanning on 11 June 2001, all in
Superior Court, Buncombe County. The Court of Appeals affirmed
the 13 August 2003 order, reversed the 8 September 2003 order,
and dismissed plaintiffs' appeal from the 11 June 2001 and 8
August 2003 orders. Heard in the Supreme Court 12 September
Orbock Ruark & Dillard, P.C., by Mark A. Leach, for
Patrick, Harper & Dixon L.L.P., by David W. Hood and Michael
J. Barnett, for defendant-appellants Cooperative Learning
Center, Blue Ridge Human Services Facilities, Inc., Blue
Ridge Mental Health, Blue Ridge Center for Mental Health,
and Blue Ridge Area Authority.
The issue is whether plaintiffs have stated a claim for
negligence against defendant Blue Ridge Area Authority
(See footnote 1)
(defendant) for damages resulting from the off-campus shooting
of plaintiff Stein by students who attended defendant's school.
We hold plaintiffs have not stated a valid claim, and we reverse
the Court of Appeals.
Plaintiff Kathlyn Marie Stein (Stein) and husband
plaintiff Michael Hootstein filed suit against defendant alleging
the following facts.
(See footnote 2)
Defendant is a political subdivision ofthe State, organized under N.C.G.S. § 122C-101 through -200
(See footnote 3)
that has waived sovereign immunity through the purchase of
At the time of Stein's shooting, defendant
operated the Cooperative Learning Center (CLC), a special
school for behaviorally and emotionally handicapped children.
The CLC adhered to an unwritten policy of not reporting violent
or criminal student activities unless those activities were
likely to expose offending students to substantial incarceration.
CLC employees were instructed to look the other way when
students engaged in, or made plans to engage in, violent or
In March 1998 J.B. (age thirteen) and C.N. (age fifteen)
were behaviorally and emotionally handicapped CLC students. J.B.
suffered from an array of emotional problems including violent
outbursts, drug abuse, and fear of parental abuse. C.N. had
threatened others openly and expressed homicidal thoughts. His
mother and three uncles abused drugs, and C.N. had twice
assaulted a CLC teacher.
Along with other CLC students, J.B. and C.N. traveled to and
from the CLC on a public school bus driven by Nancy Patton and
monitored by Gail Guzman, an unpaid volunteer. While on the bus
the week before 17 March 1998, Guzman overheard two conversations
between J.B. and C.N. (the conversations). During the first,C.N. told J.B. about a gun under his mattress at home. In the
second, C.N. said, Let's rob somebody, to which J.B. replied,
Okay. C.N. stated, I have the gun. J.B. responded, I'll
kill them. Guzman repeated what she had heard to Patton, but
neither adult informed school officials or law enforcement of the
On 17 March 1998, C.N. retrieved a gun from beneath his
mattress. That same day, accompanied by eighteen-year-old Darryl
Watkins and D.V. (age thirteen), J.B. and C.N. positioned
themselves at an Asheville intersection. Between 7:00 p.m. and
8:15 p.m., the group approached three passing vehicles with the
intent to rob and kill the drivers. At 8:15 p.m., using the gun
C.N. had provided, J.B neared Stein's car and shot Stein in the
head. The bullet entered just under her left ear, struck her
second cervical vertebra, pierced an artery, and lodged in her
right jaw. As a result of the shooting, Stein suffers from
vascular problems, a spinal fracture, nerve damage, and post-
traumatic stress disorder. All four assailants pled guilty to
charges stemming from the attack. The allegations of fact
summarized above were contained in plaintiffs' initial and
subsequent complaints. Plaintiffs voluntarily dismissed their
initial complaint without prejudice. Thereafter plaintiffs filed
a new complaint and an amended complaint. The amended complaint
asserts causes of action for negligence per se
and common law
(See footnote 4)
as part of those claims, it alleges Patton worked
for defendant and Guzman monitored the bus within the course and
scope of her duties to defendant. The trial court dismissedplaintiffs' claims pursuant to Rule 12(b)(6) of the North
Carolina Rules of Civil Procedure. Plaintiffs sought review in
the Court of Appeals.
A divided Court of Appeals reversed the trial court's order
granting defendant's motion to dismiss. Stein
v. Asheville City
Bd. of Educ.
, 168 N.C. App. 243, 608 S.E.2d 80 (2005). The
majority determined plaintiffs stated a claim for negligence by
sufficiently alleging: (1) defendant had a legal duty to protect
others from J.B. and C.N.; (2) defendant breached its duty when
Patton and Guzman did not report the conversations as required by
N.C.G.S. § 115C-245; and (3) defendant's breach proximately
caused the injuries to Stein. Id.
at 252-56, 608 S.E.2d at 86-
89. The dissent maintained plaintiffs failed to allege a duty of
care because their allegations conclusively show defendant lacked
any ability or right to control [J.B. and C.N. at the time]
plaintiffs were injured. Id.
at 260, 608 S.E.2d at 91 (Tyson,
J., concurring in part and dissenting in part). Noting the
conversations were not specific to any time, place, or intended
victim, the dissent also argued the majority's holding would
impermissibly render defendant liable to any victim, at any time
or place, whom [J.B. and C.N.] might eventually 'rob' or 'kill.'
at 262, 608 S.E.2d at 92. Defendant filed a notice of
appeal to this Court. As this is an appeal of right based solely
on the dissent in the Court of Appeals, our review is limited to
the legal sufficiency of plaintiffs' allegations against
defendant. N.C. R. App. P. 16(b).
When reviewing a complaint dismissed under Rule 12(b)(6), we
treat a plaintiff's factual allegations as true. Wood v.Guilford Cty., 355 N.C. 161, 166, 558 S.E.2d 490, 494 (2002).
Taken as true, plaintiffs' allegations cause concern. Our
society remains in the shadow of the Columbine High School
massacre and subsequent school shootings. The educators, staff
members, and volunteers who accept the challenge of working with
behaviorally and emotionally handicapped juveniles undoubtedly
deserve praise; nonetheless, public school personnel who overhear
students discussing robbery or homicide have a moral and civic
obligation to respond appropriately. The power of the judiciary
does not extend to purely moral or civic shortcomings, however.
Absent legal grounds for visiting civil liability on defendant,
our courts cannot offer plaintiffs the requested remedy.
In their amended complaint, plaintiffs assert statutory and
common law imposed a legal duty on defendant to forestall the
shooting of Stein. See generally Estate of Mullis v. Monroe Oil
Co., 349 N.C. 196, 204, 505 S.E.2d 131, 136 (1998) (defining a
legal duty as 'an obligation, to which the law will give
recognition and effect, to conform to a particular standard of
conduct toward another'). Plaintiffs submit defendant's breach
of this duty exposed defendant to civil liability under two
theories: (1) negligence per se for a violation of N.C.G.S. §
115C-245 (detailing the responsibilities of public school bus
drivers and monitors), and (2) common law negligence. See id. at
200, 505 S.E.2d at 134. We consider the legal sufficiency of
each cause of action in turn.
A. NEGLIGENCE PER SE
 [T]he general rule in North Carolina is that the
violation of a [public safety statute] constitutes negligence per
se. Byers v. Standard Concrete Prods. Co., 268 N.C. 518, 521,151 S.E.2d 38, 40 (1966). A public safety statute is one
impos[ing] upon [the defendant] a specific duty for the
protection of others. Lutz Indus., Inc. v. Dixie Home Stores,
242 N.C. 332, 341, 88 S.E.2d 333, 339 (1955). Significantly,
even when a defendant violates a public safety statute, the
plaintiff is not entitled to damages unless the plaintiff belongs
to the class [of persons] intended to be protected by [the]
statute, Baldwin v. GTE S., Inc., 335 N.C. 544, 546, 439 S.E.2d
108, 109 (1994), and the statutory violation is a proximate
cause of [the plaintiff's] injury, Hart v. Ivey, 332 N.C. 299,
303, 420 S.E.2d 174, 177 (1992).
In the case sub judice, plaintiffs allege N.C.G.S. § 115C-
245 obligated Patton and Guzman to report the conversations at
issue to school officials. Plaintiffs contend that, had Patton
or Guzman performed her statutory duty, the attack on Stein could
have been thwarted. Plaintiffs further allege the acts and
omissions of Patton and Guzman should be imputed to defendant.
Although the Court of Appeals majority cited defendant's
purported violation of N.C.G.S. § 115C-245 as an adequate
allegation of breach when discussing plaintiffs' common law
negligence claim, it did not directly address whether plaintiffs
have successfully stated a claim for negligence per se.
Section 115C-245 of our General Statutes reads in pertinent
(b) The driver of a school bus . . . shall have
complete authority over and responsibility for the
operation of the bus and the maintaining of good order
and conduct upon such bus, and shall report promptly to
the principal any misconduct upon such bus or disregard
or violation of the driver's instructions by any person
riding upon such bus. The principal may take such
action with reference to any such misconduct upon a
school bus, or any violation of the instructions of thedriver, as he might take if such misconduct or
violation had occurred upon the grounds of the school.
. . . .
(d) The superintendent or superintendent's
designee may, in his discretion, appoint a monitor for
any bus assigned to any school. It shall be the duty
of such monitor, subject to the direction of the driver
of the bus, to preserve order upon the bus and do such
other things as may be appropriate for the safety of
the pupils and employees assigned to such bus while
boarding such bus, alighting therefrom or being
transported thereon, and to require such pupils and
employees to conform to the rules and regulations
established by the local board of education for the
safety of pupils and employees upon school buses. Such
monitors shall be unpaid volunteers who shall serve at
the pleasure of the superintendent or superintendent's
N.C.G.S. . 115C-245 (2003) (emphasis added). Assuming arguendo
the conversations were misconduct within the meaning of
N.C.G.S. 115C-245(b), the question becomes whether the alleged
failure of Patton and Guzman to report them was negligence per
One could plausibly argue the General Assembly intended
N.C.G.S. § 115C-245 to be a public safety statute. Disorderly
students can distract a bus driver, thereby imperiling the
driver, other motorists, pedestrians, and themselves. By
investing bus drivers with authority over, and responsibility
for, good order and conduct on public school buses, subsection
(b) seems designed to avoid hazards of this sort. Subsection (d)
offers additional evidence that N.C.G.S. § 115C-245 is a public
safety statute. This subsection fixes a duty on public school
bus monitors to preserve order upon the bus and do such other
things as may be appropriate to safeguard students and school
system employees from injury while on the bus. Id. § 115C-245(d). These features are consistent with those of public
Regardless of whether N.C.G.S. § 115C-245 qualifies as a
public safety statute, plaintiffs' claim for negligence per se is
fatally defective. The plain language of N.C.G.S. § 115C-245(d)
reveals the General Assembly enacted the statute to ensure the
safety of the pupils and employees assigned to [public] school
bus[es]. Consequently, pupils and employees assigned to buses
would constitute the protected class of persons with standing to
sue for injuries proximately resulting from violations of the
statute. Nothing in plaintiffs' amended complaint suggests
plaintiffs belong to the relevant protected class. Precedents of
this Court therefore compel us to conclude plaintiffs have not
stated a negligence per se claim. E.g., Hart, 332 N.C. at 303,
420 S.E.2d at 177.
B. COMMON LAW NEGLIGENCE
 We next evaluate whether plaintiffs sufficiently allege
common law negligence. To state a claim for common law
negligence, a plaintiff must allege: (1) a legal duty; (2) a
breach thereof; and (3) injury proximately caused by the breach.
See Kientz v. Carlton
, 245 N.C. 236, 240, 96 S.E.2d 14, 17
(1957). Thus, the threshold question is whether plaintiffs
successfully allege defendant had a legal duty to avert the
attack on Stein. Palsgraf v. Long Island R.R. Co.
, 248 N.Y. 339,
, 162 N.E. 99, 99-100 (1928). In the absence of a legal
duty owed to the plaintiff by [the defendant], [the defendant]
cannot be liable for negligence. Cassell v. Collins
, 344 N.C.
160, 163, 472 S.E.2d 770, 772 (1996), overruled on other grounds
by Nelson v. Freeland
, 349 N.C. 615, 507 S.E.2d 882 (1998). Nolegal duty exists unless the injury to the plaintiff was
foreseeable and avoidable through due care. Mullis
, 349 N.C. at
205, 505 S.E.2d at 137 (holding no duty when plaintiff failed to
present evidence showing defendant commercial vendors should
have recognized that [plaintiff], or anyone similarly situated[,]
might be injured by their conduct). Whether a plaintiff's
injuries were foreseeable depends on the facts of the particular
(See footnote 5)
. at 206, 505 S.E.2d at 138.
Unlike many cases involving common law negligence claims,
here plaintiffs desire damages from defendant for the actions of
third persons. There is no allegation defendant or its personnel
encouraged, planned, or executed the shooting; rather, plaintiffs
rest their claim on the failure of Patton and Guzman, and by
imputation defendant, to take reasonable steps to frustrate the
plans of J.B. and C.N.
We have often remarked the law's reluctance to burden
individuals or organizations with a duty to prevent the criminal
acts of others. Cassell
, 344 N.C. at 165, 472 S.E.2d at 773
([O]ur general rule of law . . . declines to impose civil
liability upon landowners for criminal acts committed by third
persons.); Moore v. Crumpton
, 306 N.C. 618, 622, 295 S.E.2d 436,
439 (1982) ([I]t is a well-established doctrine that the mere
fact of parenthood does not make individuals liable for the
wrongful acts of their unemancipated minor children.); Foster v.
Winston-Salem Joint Venture
, 303 N.C. 636, 638, 281 S.E.2d 36, 38(1981) (Store owners are ordinarily not liable for injuries to
[their] invitees which result from the intentional, criminal acts
of third persons.). Our cases typically regard such acts as
unforeseeable and independent, intervening cause[s] absolving
the [defendant] of liability. Foster
, 303 N.C. at 638, 281
S.E.2d at 38.
Notwithstanding the general rule, we have held a defendant
may be liable for the criminal acts of another when the
defendant's relationship with the plaintiff or the third person
justifies making the defendant answerable civilly for the harm to
the plaintiff. For example, we determined
a common carrier must
exercise reasonable care to protect its passengers from
foreseeable assaults. Smith v. Camel City Cab Co.
, 227 N.C. 572,
574, 42 S.E.2d 657, 658-59 (1947); see Foster
, 303 N.C. at 640,
281 S.E.2d at 39 (holding plaintiff stated a claim when she
alleged she was on defendant store owner's premises during
business hours to transact business and there sustained injuries
from reasonably foreseeable and preventable criminal acts of a
third person). Similarly, we
decided a parent who knows or
should know of his unemancipated minor child's dangerous
propensities may have a legal duty to exercise reasonable
control over the child so as to prevent injury to others.
, 306 N.C. at 622, 295 S.E.2d at 439-40.
In the instant case
plaintiffs assert liability founded on
defendant's relationship with the third persons who injured them.
Hence, the legal sufficiency of plaintiffs' claim hinges on
whether defendant's relationship with J.B. and C.N. amounted to a
special relationship requiring defendant to use due care to
avert the attack on Stein. The amended complaint allegesdefendant knew J.B. and C.N. were emotionally and behaviorally
handicapped children and had custody of [J.B. and C.N.] . . .
and/or had the ability or right to control [the juveniles] at the
As previously mentioned, the dissent in the Court of Appeals
argued that plaintiffs' amended complaint falls short of alleging
negligence inasmuch as its allegations show defendant lacked
custody or control of J.B. and C.N. at the time of the shooting.
, 168 N.C. App. at 260, 608 S.E.2d at 90-91 (Tyson, J.,
concurring in part and dissenting in part) ('[T]he pertinent
time' in a negligence action [is] when plaintiffs suffered
injury: the time of the shooting.). Conceding defendant
possessed no authority over the juveniles when Stein was
attacked, the Court of Appeals majority did not deem the point
Defendant contend[s] . . . no duty existed
because plaintiffs cannot establish that defendant
had custody or the ability to control the students
after school hours, when the shooting occurred. This
argument relates to the question of proximate cause
rather than duty. Plaintiffs' complaint does not argue
that defendant breached [its] duty by failing to
control the students at the time that they were
shooting plaintiff Kathlyn Stein, but rather that the
breach occurred while the students were on the bus, at
a time when . . . defendant did have custody and
control over the students. In other words, the
negligence occurred not at 7:00 p.m., but rather while
the students were on school property and . . .
defendant had custody and the legal right to control
at 254-55, 608 S.E.2d at 88.
The Court of Appeals majority applied an incorrect rule of
We have never held the ability of an otherwise legally
blameless defendant to control a third person at the time of the
third person's criminal acts is unrelated to the question oflegal duty, and we decline to do so now.
(See footnote 6)
For common law
negligence purposes, no special relationship exists between a
defendant and a third person unless (1) the defendant knows or
should know of the third person's violent propensities and (2)
the defendant has the ability and opportunity to control the
third person at the time of the third person's criminal acts.
Only after a plaintiff has sufficiently alleged and proved a
special relationship between the defendant and the third person
will the finder of fact reach the issue of breach, that is,
whether the [defendant] exercised reasonable care under all of
the circumstances. Moore
, 306 N.C. at 624, 295 S.E.2d at 440.
Our holding accords with this Court's decision in Moore v.
, the plaintiff brought a personal injury
action against the defendant parents for her rape at the hands of
their son, John, Jr. Id
. at 619, 295 S.E.2d at 438. The
plaintiff alleged the parents knew or should have known that
their son's drug abuse and dangerous mental state anddisposition made it foreseeable he would intentionally injure
. at 619-20, 295 S.E.2d at 438. She alleged her rape
was the proximate result of the parents' negligent failure to
control John, Jr. Id
. at 620, 295 S.E.2d at 438. The trial
court granted the parents' motions for summary judgment, and the
Court of Appeals affirmed. Id
. at 622, 295 S.E.2d at 439.
, this Court held a parent may be liable for not
exercising reasonable control over a child if the parent (1) had
the ability and opportunity to control his child and (2) knew or
should have known of the necessity for exercising such control.
. at 623, 295 S.E.2d at 440. Turning to the facts of Moore
the Court upheld summary judgment for both parents, first
reasoning that neither parent knew or should have known of the
necessity for controlling John, Jr. Id
. at 626-28, 295 S.E.2d at
441-43. Despite being aware of John, Jr.'s persistent drug
problems, his impregnation of a young girl, and his assault on
another person, the parents had no recent information to
indicate that another assault might occur or that John, Jr. might
become involved in a forcible rape. Id
. at 627, 295 S.E.2d at
This Court further
concluded neither parent had the ability
seventeen-year-old John, Jr. at the time of the rape.
It noted the parents' marital separation shortly before the
incident had left John, Jr. under the exclusive care and control
of his father. Id
. at 626, 295 S.E.2d at 441. On the night of
the rape, the mother was at the beach, far away . . . and had
had no regular contact with or responsibility for John, Jr.
since the separation. Id
. As for the father, having
responsibility for John, Jr. and one other child [made it] almostimpossible for him to watch [John, Jr.] twenty-four hours a day.
, 306 N.C. at 628, 295 S.E.2d at 443.
John, Jr. apparently
left home [to rape the plaintiff] after midnight . . . when
parents ordinarily would not be expected to be engaged in
maintaining surveillance of their children. Id
at 626, 295
S.E.2d at 442.
Short of physically restraining [John, Jr.] and
placing him under twenty-four hour . . . observation, the father
could not have prevented the harm to the plaintiff. Id
. at 627,
295 S.E.2d at 442; see also O'Connor v. Corbett Lumber Corp
N.C. App. 178, 352 S.E.2d 267 (1987) (affirming summary judgment
for the employer of a work release inmate who was not on the job
when he broke into plaintiff's house and raped plaintiff).
Here defendant's position appears analogous to that of the
mother in Moore
. Though the conversations arguably alerted
defendant to the criminal designs of J.B. and C.N., but see
168 N.C. App. at 262, 608 S.E.2d at 92 (Tyson, J.,
concurring in part and dissenting in part)
conversations as not specific to any time, place, or intended
victim), plaintiffs' allegations establish J.B. and C.N. were
entirely outside of defendant's custody and control at the time
of the shooting. Whatever authority Patton and Guzman could have
otherwise wielded over J.B. and C.N. terminated once the
juveniles exited the bus. The shooting occurred about 8:15 p.m.
at an Asheville intersection, well after normal school hours and
not on property belonging to, or under the supervision of,
defendant. Nowhere does plaintiffs' amended complaint suggest
J.B. and C.N. were then truant due to defendant's inadequate
oversight. In sum, while plaintiffs allege violent tendencies on
the part of J.B. and C.N., their complaint offers no basis forbelieving defendant had the ability or the opportunity to control
J.B. and C.N. during the attack on Stein. The complaint
therefore fails to allege the special relationship necessary to
render defendant liable for the harm to plaintiffs by third
Based on the factual allegations in plaintiffs' complaint,
N.C.G.S. . 115C-245 did not require defendant to safeguard
plaintiffs. Moreover, defendant had no common law duty
prevent the attack on Stein. Consistent with our case law, we
regard the shooting as the regrettable, but ultimately
unforeseeable, criminal act of third persons. E.g.
N.C. at 638, 281 S.E.2d at 38
. The trial court properly
dismissed plaintiffs' claims for negligence per se
and common law
negligence. Accordingly, the decision of the Court of Appeals is
Justice TIMMONS-GOODSON did not participate in the
consideration or decision of this case.
Footnote: 1 According to plaintiffs' amended complaint, the Blue Ridge
Area Authority comprises the Blue Ridge Center for Mental Health,
Cooperative Learning Center, Blue Ridge Human Services
Facilities, Inc., Blue Ridge Mental Health, and the Authority
Footnote: 2 Plaintiffs also named the Buncombe County Board of
Education and the Asheville City Board of Education as
defendants. The trial court eventually dismissed plaintiffs'
claims against both boards. A unanimous Court of Appeals
affirmed dismissal in favor of the Asheville City Board andconcluded plaintiffs' appeal from dismissal in favor of the
Buncombe County Board was untimely filed. Stein, 168 N.C. App.
at 246-251, 608 S.E.2d at 83-86. These determinations are not
before this Court.
Footnote: 3 These statutes authorize area authorities, such as
defendant, which are charged with planning, budgeting,
implementing, and monitoring of . . . community-based mental
health, developmental disabilities, and substance abuse
services. N.C.G.S. § 122C-117 (2003).
Footnote: 4 The amended complaint also asserts a cause of action for
plaintiff Hootstein's loss of consortium.
Footnote: 5 Foreseeability is also an element of proximate cause. See
Williamson v. Liptzin, 141 N.C. App. 1, 10, 539 S.E.2d 313, 319
(2000) (The element of foreseeability is a requisite of
proximate cause.). Given that we hold no duty existed, we do
not reach the question of proximate cause.
Footnote: 6 Nor, apparently, has the Court of Appeals heretofore so
held. In King v. Durham Cty. Mental Health Developmental
Disabilities and Substance Abuse Auth., 113 N.C. App. 341, 439
S.E.2d 771, disc. rev. denied, 336 N.C. 316, 445 S.E.2d 396
(1994), for example, seventeen-year-old Mohammed Thompson fatally
shot Sherri King after escaping from the defendants' facility for
youths with violent tendencies. Id. at 342-43, 439 S.E.2d at
772-73. The Court of Appeals held the defendants were not liable
for Thompson's actions because Thompson voluntarily resided at
the facility and [i]t [could] therefore [not] be said that any
of the defendants had custody of Thompson or . . . the ability or
[legal] right to control him. Id. at 347, 439 S.E.2d at 775.
In Pangburn v. Saad, 73 N.C. App. 336, 326 S.E.2d 365
(1985), the Court of Appeals held the plaintiff sufficiently
stated a claim against the defendant psychiatrist for the
wrongful discharge of a patient who stabbed her following his
release. Id. at 337, 326 S.E.2d at 366. Unlike Thompson's
situation in King, the patient in Pangburn was involuntarily
committed to the defendant's care. Id. at 347, 326 S.E.2d at
372. Thus, the defendant could have controlled the patient at
the time of the stabbing but for the wrongful release.
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