CLEO HUFF v. NORTHAMPTON COUNTY BOARD OF EDUCATION AND NORTH CAROLINA BOARD OF EDUCATION
SPRING TERM, 1963
Filed 20 March 1963
259 N.C. 75
In the trial below, we find
No error.
CLEO HUFF v. NORTHAMPTON COUNTY BOARD OF EDUCATION AND NORTH CAROLINA BOARD OF EDUCATION.
(Filed 20 March 1963.)
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State § 5a-
A county or city board of education may be held liable under the Tort Claims Act for negligence of the driver of a school bus employed by such units, but may not be held liable for negligence of a school principal or of the county or city board of education.
G.S. 143-300.1 . -
Same-
The State Board of Education has been relieved of all responsibility in connection with the operation and control of school buses, and therefore may not be held liable for any negligence in connection with the operation thereof.
G.S. 115-180 , et seq. -
State § 5d-
Evidence that two girls on a school bus engaged in a fight while the bus was being driven by its regular driver and that more than seven months thereafter they engaged in another fight while the bus was being driven by the monitor who had been appointed substitute driver, held insufficient to establish negligence on the part of the driver which could constitute a proximate cause of the serious injury sustained by one of the girls in the second fight, even though the first driver failed to report the incident as required by regulations, since the second fight and resulting injuries some seven months after the first could not have been reasonably foreseen.
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Same-
The act of a pupil in voluntarily entering into a fight with another on a school bus constitutes contributory negligence barring recovery against the county board of education under the Tort Claims Act for injury received in such fight.
G.S. 143-291 . -
Same-
The failure to have a monitor in addition to the driver on a school bus cannot be held for negligence since the appointment of a monitor is a matter of discretion of the school board.
State § 4-
A county board of education is subject to suit in tort only insofar as it has waived its governmental immunity, and may be held liable for negligent injury to a pupil on a school bus only if it has procured liability insurance,
G.S. 115-53 , or to the extent it may be held liable under the State Tort Claims Act.
PARKER, J., concurring in result.
APPEAL by plaintiff from Cowper, J., October Civil Term 1962 of NORTHAMPTON.
This is a proceeding brought pursuant to the provisions of the North Carolina Tort Claims Act to recover damages for injuries sustained when the plaintiff, Cleo Huff, age 17, while riding on a school bus operated by the County Board of Education of Northampton County, on 25 May 1960, was seriously injured in her upper right arm, left wrist and right hand, by cuts inflicted with a knife by Odessie Sykes, a fellow student passenger.
The evidence tends to show that James Broadnax was employed during the school year 1959-60 as a bus driver for Gumberry High School in Northampton County; that, according to the testimony of the school principal, George Vincent was appointed monitor for the bus driven by Broadnax; that Broadnax drove school bus No. 45, and among the regular passengers on that bus were Cleo Huff and Odessie Sykes. That on or about 15 October 1959 these girls had an argument and got into a fight. Broadnax stopped the bus and stopped the fight. On that occasion Odessie Sykes cut the left arm of Cleo Huff. The driver did not report the incident to the principal of the school although he had been instructed to report any misconduct to the school principal. At the time of the fight only five or six students remained on the bus. George Vincent, the monitor, had already left the bus. In fact, the driver of the bus did not know that Vincent had been appointed a monitor for the bus.
When the fight occurred on 25 May 1960, George Vincent, the monitor, had been instructed to drive the bus in the absence of the regular driver.
The evidence further tends to show that there was no misconduct on the bus between 15 October 1959 and 25 May 1960.
Cleo Huff testified: ” * * * (T)he day before school ended, we were going home that afternoon, and I was up there so me and her we hit at each other about the same time, and Thurman Paytiller stood in between us and then she cut me. That is all I know. She stabbed me, right here, and here.”
On the facts found the deputy commissioner held that the plaintiff did not suffer damages by any negligent act or omission of the defendant County Board of Education, nor were the damages suffered by the plaintiff reasonably foreseeable by the said Board of Education. The plaintiff‘s claim for damages was denied.
On appeal to the full Commission, the Commission adopted as its own the findings and result reached by the deputy commissioner.
On appeal to the Superior Court the order of the full Commission was affirmed.
The plaintiff appeals, assigning error.
Gilliland & Clayton for plaintiff appellant.
E. B. Grant for defendant appellee County Board of Education.
DENNY, C.J. The appellant assigns as error the finding of fact to the effect that the attack and injuries inflicted on Cleo Huff by Odessie Sykes were not reasonably foreseeable by either the principal or the Board of Education operating the bus in question nor were the damages suffered by the plaintiff on the occasion in question proximately caused by any negligent act or omission of the principal or Board of Education.
An award against a county board of education under the provisions of the Tort Claims Act may not be predicated on the negligent act or omission of a school principal or the county board of education, but if an award is made it must be based on the negligent act or omission of the driver of a public school bus who was employed at the time by the county or city administrative unit of which such board was the governing body.
The General Assembly of North Carolina relieved the State Board of Education from all responsibility in connection with the operation and control of school buses in this State by the enactment of Chapter 1372 of the North Carolina Session Laws of 1955, which Act authorizes
It it provided in
The evidence on this record is insufficient to establish that any negligent act or omission in the operation of the school bus by the driver thereof was the proximate cause or one of the proximate causes of plaintiff‘s injuries. The evidence does not disclose any misconduct on the part of any student riding the bus driven by James Broadnax after 15 October 1959, until 25 May 1960 while the bus was being driven by George Vincent, more than seven months after the first occurrence, that would give any one any reason to suspect a second fight between the parties involved. Moreover, there is no evidence tending to show any negligent act or omission on the part of the driver of the bus on 25 May 1960 that could by any stretch of the imagination be construed as a proximate cause of plaintiff‘s injuries.
On the other hand, the Tort Claims Act does not authorize recovery unless the claimant is free from contributory negligence.
In the case of Smith v. Board of Education, 241 N.C. 305, 84 S.E. 2d 903, a 14-year-old pupil on a school bus was assaulted by another pupil. The 14-year-old pupil rushed to the front of the bus, jerked the door open and jumped to her death. The driver did not see anything that happened until she was going out of the door of the bus. The hearing commissioner held that it was the duty of the bus driver to
The appellant herein assigns as error the failure of the court below to find that the school principal was negligent in not having a monitor on said bus at the time the plaintiff sustained her injuries.
As a matter of fact, according to the evidence, the driver of the bus at the time complained of was the regular monitor. However, he had been assigned on 25 May 1960 as a substitute driver for James Broadnax, the regular bus driver. Furthermore, whether or not the principal should have appointed a monitor as a substitute for Vincent since he was driving the bus, was a matter in the discretion of the principal.
However, as heretofore pointed out, the Tort Claims Act does not authorize a recovery against a county board of education for the negligent act or omissions of its agents, servants and employees except for a claim based upon a negligent act or omission of a driver of a school bus employed by the board from which recovery is sought.
A county board of education, “unless it has duly waived immunity from tort liability, as authorized in
In our opinion, the evidence in this proceeding is insufficient to support a finding that the negligent acts or omissions of James Broadnax or George Vincent, the drivers of the school bus involved, on the occasions complained of, were the proximate cause of the plaintiff‘s injuries. Therefore, the result reached by the Industrial Commission and affirmed by the Superior Court will be upheld for the reasons set out in this opinion.
Affirmed.
PARKER, J., concurring in the result. The claimant, Cleo Huff, testified before the deputy hearing commissioner as follows:
“On the day in question, October 15, 1959, that afternoon we were almost at the church, me and Brenda, we were talking. So this Molly Sykes she said something...That is Odessie‘s sister. We weren‘t far from the church so I got off at the church. The next morning when I got on the bus she came up and told me that she was fussing at Brenda. By then, the bus hadn‘t even gotten to Brenda. After then she left and she and Brenda started fighting and then Odessie Sykes, she was arguing at me and said she was going to make some rules to go by on the bus. So Molly started fighting and we fought until James stopped the bus, and came back and stopped us. That afternoon, after we got to Brenda‘s turn, the bus stopped to put Brenda off, Brenda got to the door and I heard Odessie say, “Ain‘t you going to do something?” Then Molly came over to where I was. She jumped on me and started fighting. Yes, this was in the bus when she jumped on me and started fighting. I saw Odessie up and she cut me. This was on or about the 15th of October 1959. On the way home in the afternoon, the occasion I was cut. I was cut right here on the left arm. Brenda told James, the driver of the bus, that she had a knife. When he got back there she had cut me then. There was never any monitor on the bus at all during the year that I know of.
“Later in the school year, the day before school ended, we were going home that afternoon, and I was up there so me and her we hit at each other about the same time, and Thurman Paytiller stood in between us and then she cut me. That is all I know. She stabbed me, right here, and here.”
In my opinion, the injuries received on 25 May 1960 by the claimant, Cleo Huff, could have been reasonably foreseeable by the Nort-
DENNY, C.J.