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Hogue Hill Jones Nash & Lynch, LLP, by David A. Nash,
for defendant-appellee New Hanover County Board of
Allison Schafer, Legal Counsel, for North
Carolina School Boards Association, amicus curiae.
This case requires us to determine whether plaintiff's
common law negligence claim, which will ultimately be defeated by
governmental immunity because of its exclusion from defendant
Board of Education's insurance coverage, provides an adequate
remedy at state law. We hold that it does not and that plaintiffmay therefore bring his colorable claims directly under the North
Carolina Constitution. We reverse the Court of Appeals.
(See footnote 1)
(plaintiff) filed this action on 20
September 2006 to recover monetary damages from the New Hanover
County Board of Education (the Board) and Annette Register,
Principal at Roland Grise Middle School, in her official and
individual capacity. He alleged that the defendants failed to
adequately protect him from a sexual assault, and enumerated four
claims. The first was based on common law negligence. His other
claims asserted that the Board deprived him of an education free
from harm and psychological abuse, thereby violating three
separate provisions of the North Carolina State Constitution:
Article I, Section 15 (right to the privilege of education);
Article I, Section 19 (no deprivation of a liberty interest or
privilege but by the law of the land); and Article IX, Section 1
(schools and means of education shall be encouraged).
The Board moved for summary judgment on 22 November
2006 on all claims, asserting the absence of any genuine issue of
material fact and raising other defenses including governmental
immunity. By an order entered 15 December 2006, the trial courtdenied the Board's motion for summary judgment,
(See footnote 2)
and the Board
appealed to the Court of Appeals on 20 December 2006.
At the Court of Appeals, a unanimous panel held that
the doctrine of sovereign immunity
(See footnote 3)
defeats plaintiff's common
law negligence claim because the Board does not carry insurance
that would cover these claims and, thus, has never waived its
immunity for the alleged injury. Craig ex rel. Craig v. New
Hanover Cty. Bd. of Educ.
, 185 N.C. App. 651, 654-55, 648 S.E.2d
923, 925-26 (2007). Specifically, the Court of Appeals noted
that the Board's excess liability insurance policy excluded
coverage for any claims arising out of or in connection with . .
. sexual acts, sexual molestation, sexual harassment, sexual
assault, or sexual misconduct of any kind; . . . [as well as]
claims for negligent hiring, negligent retention, and/or
negligent supervision. Id.
at 654, 648 S.E.2d at 925. Thus,
because the policy does not cover plaintiff's negligence claim,
both statute and longstanding case law of this State establish
that the Board has not waived immunity from suit. See
N.C.G.S. §115C-42 (2005) ([S]uch immunity is waived only to the extent
that said board of education is indemnified by insurance for such
negligence or tort.); Ripellino v. N.C. School Bds. Ass'n
N.C. App. 423, 428, 581 S.E.2d 88, 92 (2003) (holding that a
school board's participation in the North Carolina School Boards
Trust did not qualify as a purchase of liability insurance under
the definition of N.C.G.S. § 115C-42), cert. denied
, 358 N.C.
156, 592 S.E.2d 694-95 (2004).
However, the panel was divided regarding plaintiff's
constitutional claims. While recognizing that direct claims
under our State Constitution are allowed when a litigant
possesses no adequate remedy at state law, the majority concluded
that plaintiff's common law negligence claim is an adequate
remedy at state law, and thus, the constitutional claims are
, 185 N.C. App.
at 655-57, 648 S.E.2d at 926-27.
The dissenting opinion contended that plaintiff's negligence
claim cannot be an adequate state remedy since governmental
immunity completely defeats the claim. Id.
at 657, 648 S.E.2d at
927 (Bryant, J., concurring in part, dissenting in part). By an
order dated 6 March 2008, we granted certiorari to review the
Court of Appeals decision only as to the issue raised in the
dissenting opinion. Craig ex rel. Craig v. New Hanover Cty. Bd.
, 362 N.C. 234, 659 S.E.2d 439 (2008); see
N.C. R. App.
Plaintiff, a mentally disabled student with below
average communication and social skills, began attending Roland
Grise Middle School in New Hanover County in the sixth grade. On
6 January 2004, when plaintiff was fourteen years old and in the
eighth grade, an assistant principal from Roland Grise called his
mother to inform her of some sexual experimentation that
occurred in class between plaintiff and another boy. Plaintiff
alleges that he did not consent to the incident and that
defendants are liable for failing to adequately protect him from
Summary judgment is appropriate if 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.G.S. § 1A-1,
Rule 56(c) (2007). Furthermore, when considering a summary
judgment motion, 'all inferences of fact . . . must be drawn
against the movant and in favor of the party opposing the
motion.' Caldwell v. Deese
, 288 N.C. 375, 378, 218 S.E.2d 379,
381 (1975) (quoting 6 James Wm. Moore, Moore's Federal Practice
56.15, at 2337 (2d ed. 1971)). We review a trial court's
order granting or denying summary judgment de novo
. See BuildersMut. Ins. Co. v. N. Main Constr.
, 361 N.C. 85, 88, 637 S.E.2d
528, 530 (2006) (citing Howerton v. Arai Helmet, Ltd.
, 358 N.C.
440, 470, 597 S.E.2d 674, 693 (2004)). Under a de novo
the court considers the matter anew and freely substitutes its
own judgment for that of the lower tribunal. In re Appeal of
The Greens of Pine Glen Ltd. P'ship
, 356 N.C. 642, 647, 576
S.E.2d 316, 319 (2003) (citing Mann Media, Inc. v. Randolph Cty.
, 356 N.C. 1, 13, 565 S.E.2d 9, 17 (2002)). The
showing required for summary judgment may be accomplished by
proving an essential element of the opposing party's claim . . .
would be barred by an affirmative defense . . . . Dobson v.
, 352 N.C. 77, 83, 530 S.E.2d 829, 835 (2000) (citing
Goodman v. Wenco Foods, Inc.
, 333 N.C. 1, 21, 423 S.E.2d 444, 454
Denial of a summary judgment motion is interlocutory
and ordinarily cannot be immediately appealed. However, the
appeal here is proper because the Board raises the complete
defense of governmental immunity, and as such, denial of its
summary judgment motion affects a substantial right. N.C.G.S. §
7A-27(d)(1) (2007); see Bailey v. Gooding
, 301 N.C. 205, 209, 270
S.E.2d 431, 433 (1980) (explaining that interlocutory decrees
are immediately appealable only when they affect some substantial
right (citing Veazey v. City of Durham
, 231 N.C. 354, 362, 57
S.E.2d 377, 381 (1950)). As noted by the United States Supreme Court, such
immunity is more than a mere affirmative defense, as it shields a
defendant entirely from having to answer for its conduct at all
in a civil suit for damages. See Mitchell v. Forsyth
, 472 U.S.
511, 525, 86 L. Ed. 2d 411, 424 (1985). Thus, unlike affirmative
defenses explicitly listed in our Rules of Civil Procedure, see
N.C.G.S. § 1A-1, Rule 8(c) (2007), the denial of summary judgment
on grounds of sovereign immunity is immediately appealable,
though interlocutory, because it represents a substantial right,
as [t]he entitlement is an immunity from suit
rather than a mere
defense to liability; and . . . it is effectively lost if a case
is erroneously permitted to go to trial. Mitchell
, 472 U.S. at
526, 86 L. Ed. 2d at 425.
Plaintiff argues that his common law negligence claim
is not an adequate remedy at state law because the doctrine of
governmental immunity prevails against it. Consequently, he
asserts that per this Court's decision in Corum v. University of
, 330 N.C. 761, 413 S.E.2d 276, cert. denied
U.S. 985, 121 L. Ed. 2d 431 (1992), he should be allowed to bring
claims directly under our State Constitution that will not be
susceptible to an immunity defense. We agree.
The practical effect of the Court of Appeals' holding
otherwise would be to allow the doctrine of sovereign immunity tostand as a barrier to North Carolina citizens who seek to remedy
violations of their rights guaranteed by the Declaration of
exactly contrary to our prior holding in Corum
785-86, 413 S.E.2d at 291
. Indeed, the application of sovereign
immunity to plaintiff's common law negligence claim is integral
to our assessment here of the adequacy of plaintiff's state law
remedy. Allowing sovereign immunity to defeat plaintiff's
colorable constitutional claim here would defeat the purpose of
the holding of Corum
This Court could hardly have been clearer in its
holding in Corum
: [I]n the absence of an adequate state remedy,
one whose state constitutional rights have been abridged has a
direct claim against the State under our Constitution. Id.
782, 413 S.E.2d at 289. In outlining the rationale for allowing
such claims to proceed in the alternative, this Court further
The civil rights guaranteed by the
Declaration of Rights in Article I of our
Constitution are individual and personal
rights entitled to protection against state
action . . . . The fundamental purpose for
[the] adoption [of the Declaration of Rights]
was to provide citizens with protection from
the State's encroachment upon these rights.
Encroachment by the State is, of course,
accomplished by the acts of individuals who
are clothed with the authority of the State.
The very purpose of the Declaration of Rights
is to ensure that the violation of these
rights is never permitted by anyone who mightbe invested under the Constitution with the
powers of the State.
at 782-83, 413 S.E.2d at 289-90 (citation omitted).
Nevertheless, this Court also addressed the inherent tension for
the judicial branch in safeguarding against the encroachment of
citizens' constitutional rights while also respecting the
doctrine of sovereign immunity:
The doctrine of sovereign immunity has been
modified, but never abolished. It has been
said that the present day doctrine seems to
rest on a respect for the positions of two
coequal branches of government--the
legislature and the judiciary. Thus, courts
have deferred to the legislature the
determination of those instances in which the
sovereign waives its traditional immunity.
However, in determining the rights of
citizens under the Declaration of Rights of
our Constitution, it is the judiciary's
responsibility to guard and protect those
rights. The doctrine of sovereign immunity
cannot stand as a barrier to North Carolina
citizens who seek to remedy violations of
their rights guaranteed by the Declaration of
Rights. It would indeed be a fanciful
gesture to say on the one hand that citizens
have constitutional individual civil rights
that are protected from encroachment actions
by the State, while on the other hand saying
that individuals whose constitutional rights
have been violated by the State cannot sue
because of the doctrine of sovereign
It is also to be noted that individual rights
protected under the Declaration of Rights
from violation by the State are
constitutional rights. Such constitutional
rights are a part of the supreme law of the
State. On the other hand, the doctrine ofsovereign immunity is not a constitutional
right; it is a common law theory or defense
established by this Court . . . . Thus, when
there is a clash between these constitutional
rights and sovereign immunity, the
constitutional rights must prevail
at 785-86, 413 S.E.2d at 291-92 (emphasis added) (internal
citation omitted). The Court of Appeals' holding here
constitutes precisely the type of fanciful gesture that this
Court cautioned against in Corum
Here, plaintiff's remedy cannot be said to be adequate
by any realistic measure. Indeed, to be considered adequate in
redressing a constitutional wrong, a plaintiff must have at least
the opportunity to enter the courthouse doors and present his
claim. Under the facts averred by plaintiff here,
(See footnote 4)
of sovereign immunity precludes such opportunity for his common
law negligence claim because the defendant Board of Education's
excess liability insurance policy excluded coverage for the
negligent acts alleged.
Plaintiff's common law cause of action
for negligence does not provide an adequate remedy at state law
when governmental immunity stands as an absolute bar to such aclaim. But as we held in Corum
, plaintiff may move forward in
the alternative, bringing his colorable claims directly under our
State Constitution based on the same facts that formed the basis
for his common law negligence claim.
This holding does not predetermine the likelihood that
plaintiff will win other pretrial motions, defeat affirmative
defenses, or ultimately succeed on the merits of his case.
Rather, it simply ensures that an adequate remedy must provide
the possibility of relief under the circumstances.
language of the excess liability insurance policy and
corresponding applicability of sovereign immunity, make relief
impossible on plaintiff's common law negligence claim, regardless
of his ability to prove his case. Further, the facts presented
here are distinguishable from a case in which a plaintiff has
lost his ability to pursue a common law claim due to expiration
of the statute of limitations, for example. Sovereign immunity
entirely precludes this plaintiff from moving forward with his
common law claim; without being permitted to pursue his direct
colorable constitutional claims, he will be left with no remedy
for his alleged constitutional injuries.
, state law did not provide for the type of
remedy sought by the plaintiff; as such, this Court did not
consider the relevance of sovereign immunity in its initial
determination that he had no adequate remedy at state law. Nevertheless, as outlined above, this Court did clearly establish
the principle that sovereign immunity could not operate to bar
direct constitutional claims. Here, although plaintiff does have
a negligence claim under the common law, such claim is
automatically precluded by sovereign immunity due to the language
of the excess liability insurance policy excluding coverage for
negligent acts. If plaintiff is not allowed to proceed in the
alternative with his direct colorable constitutional claim,
sovereign immunity will have operated to bar the redress of the
violation of his constitutional rights, contrary to the explicit
holding of Corum
In addition to Corum
, our holding here is likewise
consistent with the spirit of our reasoning in Sale v. State
Highway & Public Works Commission
, 242 N.C. 612, 89 S.E.2d 290
, and Midgett v. North Carolina State Highway Commission
260 N.C. 241, 132 S.E.2d 599 (1963), overruled on other grounds
by Lea Co. v. North Carolina Board of Transportation
, 308 N.C.
603, 616, 304 S.E.2d 164, 174 (1983)
. In Sale
, the plaintiffs
sued the State Highway Commission after buildings that it had
contracted with the plaintiffs to remove and reconstruct at a
different site were destroyed by fire during the process.
Although the plaintiffs had no statutory claim, this Court
essentially allowed the plaintiff's negligence claim to proceed
under the common law as an allegation of the State agency'sviolation of his constitutional rights. 242 N.C. at 620-22, 89
S.E.2d at 297-98. The State agency defendant in Sale
that, based on the facts alleged in the plaintiff's complaint, it
could not be sued under statute, in contract, or in tort, this
last due to immunity at common law. Likewise, defendant Board of
Education here argues that it is entitled to summary judgment
because its sovereign immunity bars the claim on the facts
alleged by plaintiff. The Court in Sale
, when faced with a
plaintiff who would otherwise receive no compensation for a
constitutional wrong, recognized the significance of such a
violation of the fundamental law of this State, id.
at 620, 89
S.E.2d at 297, and fashioned a remedy at common law to ensure an
opportunity for the plaintiff to have the merits of his case
heard and his injury redressed if successful on those merits.
Finally, in Midgett
, the plaintiffs alleged a taking by
the State Highway Commission after the agency constructed a
highway, allegedly altering the natural flow of water and causing
recurring flooding on the plaintiffs' private property. 260 N.C.
at 248, 132 S.E.2d at 606. Under those circumstances, a
statutory remedy to recover damages against the State Highway
Commission existed and was ordinarily exclusive when available.
Nevertheless, after finding that the plaintiffs' damages did not
accrue until after the time for the statutory cause of action had
expired, this Court allowed the plaintiffs to proceed with aconstitutional claim for just compensation. Id.
at 249-50, 132
S.E.2d at 607-08.
Thus, the type of remedy sought by the plaintiff in
was precisely the same under either the statute or the
constitutional claim asserted. Once again, when faced with a
plaintiff who had suffered a colorable constitutional injury that
could not be redressed through other means, this Court allowed
the plaintiff to proceed with his direct constitutional claim
because the state law remedy did not apply to the facts alleged
by the plaintiff. Id.
at 251, 132 S.E.2d at 608-09. Here, as in
, the facts plaintiff alleges and the damages he seeks are
also the same under either his common law negligence claim or his
direct colorable constitutional claim. Moreover, although the
timing of plaintiff's injury is not the issue
, as it was in
, the particular fact situation would make a recovery by
the plaintiff in the instant case impossible. Id.
In sum, we hold that plaintiff's common law negligence
claim is not an adequate remedy at state law because it is
entirely precluded by the application of the doctrine of
sovereign immunity. To hold otherwise would be contrary to our
opinion in Corum
and inconsistent with the spirit of our long-
standing emphasis on ensuring redress for every constitutional
injury. Moreover, our constitutional rights should not be
determined by the specific language of the liability insurancepolicies carried by the boards of education in each county.
Allowing sovereign immunity to bar this type of constitutional
claim would lead to inconsistent results across this State, as
persons in some counties would find themselves in plaintiff's
position, with no remedy at all for this type of injury, while
others would be compensated. Instead, individuals may seek to
redress all constitutional violations, in keeping with the
fundamental purpose of the Declaration of Rights to ensure
that the violation of [constitutional] rights is never
by anyone who might be invested under the Constitution with the
powers of the State. Corum
, 330 N.C. at 782-83, 413 S.E.2d at
289-90 (emphasis added).
Accordingly, we reverse the Court of Appeals and affirm
the trial court's denial of defendant's motion for summary
judgment on plaintiff's direct colorable constitutional claims.
Footnote: 1 Jon-Paul brings this action by his mother and next friend,
Kimberly Craig. For ease of reference, we refer to Jon-Paul as
Footnote: 2 The trial court granted defendant Register's motion to
dismiss all claims against her. Plaintiff has not appealed the
dismissal of claims against defendant Register.
Footnote: 3 The Board is a county agency. As such, the immunity it
possesses is more precisely identified as governmental immunity,
while sovereign immunity applies to the State and its agencies.
See Meyer v. Walls, 347 N.C. 97, 104, 489 S.E.2d 880, 884 (1997).
In application here, the distinction is immaterial.
Footnote: 4 In the original complaint, plaintiff specifically averred:
The constitutional claim for damages is plead [sic] as an
alternative remedy, should the court find that sovereign immunity
or governmental immunity in any of its various forms exists and,
if it does exist, which the plaintiffs deny, then, in that event,
plaintiffs have no adequate remedy at law and assert the
constitutional violations pursuant to the laws of North
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