*1 IN THE COURT OF MEDLIN v. BASS (1989)] App. 410 [96 MEDLIN, MEDLIN, Ad LYNN Plain WEST Guardian Litem for PAMELA GAIL agent Individually BASS, and as for FRANKLIN COUN tiff VANN J. Individually BALDWIN, EDUCATION; and as LUTHER TY BOARD OF agent EDUCATION; W. WARREN FRANKLIN BOARD OF COUNTY EDUCATION; SMITH, E. BOARD OF RUSSELL FRANKLIN COUNTY Individually agent ALLEN, for FRANKLIN OF and COUNTY BOARD EDUCATION, EDUCATION; Defendants FRANKLIN COUNTY BOARD OF No. 889SC1079 1989) (Filed 5 December in- superintendent negligent § 1. 12.1 Schools —no and vestigation, hiring, supervision principal trial court entered properly plaintiffs action based superintendent defendant of schools hiring, supervision prin- of a investigation, and negligent principal’s employ- that the cipal where evidence showed policy; application investigated according ment year no knew about a ten old evidence that defendant had been made of sexual assault of student which allegation district; did plaintiff another school principal reasonably have evidence that defendant could present by conducting thorough incident a more found out about the yearly evalua- required defendant investigation; of the principal; plaintiff presented tions female student knew of the assaults defendant in his failed to act. school and 2d, School, Tort Municipal, County,
Am Jur and State Liability §§ 633-636. — (NCI3d) superintendent negligent assistant Schools —no investigation, hiring, supervision principal
The trial court entered schools in ac- defendant assistant supervision investigation, hiring, tion based undisputed evidence showed that where system until 12 was not defendant hired, the time defend- years after in- his duties did not superintendent, ant served as assistant principals. supervision clude 2d, Schools, Municipal, County, Tort Am Jur State Liability §§ 633-636. COURT OF APPEALS *2 (NCI3d|— §
3. Schools truant negligence officer —no in in- vestigation truancy problems of child’s intentional inflic- —no tion of emotional distress trial court properly granted defendant truant officer on plaintiff’s claim of negligence performance duty defendant’s of his to investigate a child’s truancy problems and on claim of inflic- intentional distress, tion emotional since there was no evidence that time indicated to defendant that child was missing by school because of an her alleged assault school principal; the infliction of emotional distress claim was based on defendant’s instigating filing juvenile petition against the child because of her problems; plaintiff presented tort; no evidence of element of there this was no knew defendant of the alleged assault or that he intended to cause severe emotional distress the child. 2d,
Am School, Jur Municipal, County, and State Tort Liability §§ 633-636.
4. Schools principal’s assaults on student —acts imputed to school hoard court trial entered summary judgment for defendant board of imputed education based on the acts a school where assaulting student there was claim express authorization the principal’s torts; acts; nowas ratification of the principal’s alleged defendant no prior notice of the principal’s conduct and immediately sought resignation upon learning of plaintiff’s allegations; and there were no issues of material fact toas whether the in the acting scope employ- ment and in furtherance of defendant’s business when the alleged assaults occurred. 2d,
Am School, Jur Municipal, County, and State Tort Liability §§ 633-636.
Judge Phillips dissenting. by plaintiff Appeal April from Order entered 26 1988 in Court, Superior County, by Judge Crawley. B. Jack Heard in the Appeals May Court IN THE COURT of defend- favor The trial court Allen, Baldwin, Smith, E. and the W. Russell Warren ants Luther appeals. County Board of Education. Howell, Kirk, Kirk, Andy GayW. Gwynn by & Gay, McCraw, plaintiff-appellant. Katherine P.A., Alvis, Moore, P. David Sousa Henderson & Young, Smith, Danchi, Warren W. defendants-appellees Theodore S. and Luther Baldwin. Russell E. Allen Patterson, Cranfill, David Dilthey, Hartzog, by Sumner & Clay, Tomlinson, Davis, Davis, Batten; Charles M. Sturges H. & *3 Board Education. County Franklin defendant-appellee of LEWIS, Judge. several
By complaint, plaintiff amended sets forth complaint and during the 1984-85 school relief. Plaintiff alleges claims for (Bass) Elementary Bunn of year J. Bass Vann County of employee and School Franklin an (Smith) by the W. Smith Warren public schools. Education) (Board of as the County Board of Education The Board of Education of the Board Education. (Allen) Superintendent E. Allen as its Assistant employed Russell (Baldwin) complaint The officer. Luther Baldwin liability waived its the Board of Education has alleges also employees purchasing of its liabili- damages negligence from Pamela that Bass twice assaulted ty complaint alleges insurance. The student, Medlin, the first nine-year-old, grade fourth Lynn year. days few of the 1984-85 school battery, for assault and seeks to recover from Bass Plaintiff distress, infliction emotional false intentional imprisonment, services, to report failure child furnishing negligent fiduciary duty. complaint The sets forth claims and breach of abuse investigation, hiring for negligent Smith and Allen against for relief Baldwin’s Plaintiff seeks to recover for of Bass. supervising and failure to infliction of emotional distress intentional problems. attendance Pamela Medlin’s school investigate properly Bass, Smith, Allen all actions complaint alleges Education and be to the Board of Baldwin should attributed described Board previously for relief asserts each claim Education. App. $10,000.00 Plaintiff in excess of compensatory damages seeks $10,000.00. in excess of Plaintiff also punitive damages requests attorneys’ fees and costs. On 26 the trial court April granted Smith, Allen, summary judgment in favor of Baldwin and the Board of Education. claims Bass remain. appeals that there were issues grounds genuine
of material fact which should not have been decided on a motion Smith, Allen, summary Defendants Baldwin and the judgment. Board error to the trial court’s consideration assign of a certain supplemental affidavit. We have reviewed plaintiff’s assignment of error and conclude judgment conclusion, granted as to these defendants. Having reached this we do address defendants’ of error. assignment
Summary “if judgment deposi- should be the pleadings, tions, file, answers to interrogatories together admissions on affidavits, with the if any, show that there is no issue genuine as to material fact and that party is entitled to a 56(c). 1A-1, may as a matter of law.” G.S. Rule A defendant be entitled to if he show “there genuine can is no concerning issue material fact an essential element of the claim- ant’s claim for relief and that the ex- prove claimant cannot 107, 109, istence of that element.” Best v. Perry, “Where there is no genuine issue as *4 facts, the the presence or difficult important questions law is no barrier to the granting judgment.” Kessing 523, 534, 823, Mortgage 278 180 830 Corp., The evidence presented hearing motion for sum- mary County showed in working that before Franklin Mount, principal Rocky Bass had been as a teacher and in Carolina, 1968, years. North ten In approximately June Bass sexually junior assaulted a male school student. Bass testified high by Rocky he Superintendent that was confronted Mount school (Fields) O. Fields the incident and decided to Bass resign. C. about does not recall the assault with other than Fields discussing father, deny and the student’s Bass did not admit or assault to Fields. The student testified that he and his did not father to make the incident the focus of attention. Follow- attempt public schools, ing resignation Rocky from the Mount Bass moved County to his mother’s home in Franklin and did not work until January 2 applied County he with the Franklin schools on 1969. OF 414 BASS MEDLIN v. Franklin request he to teach at the applied testified that Bass Kelly (Kelly). employment application W. H. County principal (Holmes), Associate references. Holmes Margaret for three asked 1969, in that County schools testified of Franklin Superintendent of the county to contact two in 1969 it was the policy employment application, preferably three references listed Holmes contacted job-related with the most contact. references references, Moore, was told by telephone Millie Bass’ one of would not affect for health reasons which Rocky Bass left Mount County. February, Smith mailed in Franklin On performance references Millie another of the reference sheets to Moore and reference Ella Moore. application, listed on Bass’ County schools until were not received sheets February 1969, the Board of January Smith informed Bass that On 7 High at Bunn School begin teaching had elected Bass to for a February May applied 1969. On Bass in June. County position and was hired for this in Franklin position when requested prin- were Bass was hired No reference sheets been done a few months earlier because an cipal application. with his teaching in connection early March after Bass was hired February In late or Kelly he asked Holmes principal, became as a teacher but before visited that Bass was a homosexual. Holmes investigate a rumor Fields, and the third Rocky Mount school testified application. Holmes employment reference listed on Bass’ Fields stated he had no specific questions, response Holmes homosexuality. Bass’ Smith knew or record of knowledge was informed Rocky investigate Mount to rumor and went to he does not investigation. of her Fields testified of the substance homosexuality about Bass’ but asking remember Holmes perform- with Smith about Bass’ talking personally he does recall principal. as a ance follow- position resigned
Bass Board of Education that had assaulted complaint to the ing Previously prob- discussed Pamela’s attendance Pamela. Bass had *5 any never received indication that family lems with her but had n him personally. were related to problems Pamela’s attendance agent [1] The claims of the Board of Education are based on Smith negligent investiga- of schools and IN THE COURT OF APPEALS tion, hiring supervision of Bass. Plaintiff contends that since the evidence shows Rocky Bass left his position Mount after incident, the first alleged assault then Smith negligently investigated and hired Bass judgment was not proper as to these However, claims. the evidence shows that Bass’ employment ap- plication was investigated according policy and there is no evidence that Smith was informed of knew or about the Rocky Mount inci- dent when Bass was hired. Plaintiff did present Smith knew of the Rocky Mount incident or he reasonably could have found out about it conducting a more thorough investiga- tion. The evidence also shows that Smith properly supervised Bass. evaluations, Smith required yearly plaintiff presented no evidence that Smith knew of the alleged assaults on Pamela and failed to act. The trial court did not err in granting summary judgment as to those claims based on Smith’s actions. tion, hiring and supervision of Bass. The undisputed evidence shows [2] The claims against Allen are also based on negligent investiga that Allen was not employed by the System School 12 years until after Bass Summary was hired. judgment on the claims for negligent hiring and were As proper. Bass, the claim for negligent supervision of Allen testified that period he served as Assistant Superintendent his duties did not include supervision of principals. Summary judgment on this claim was proper.
[3] Plaintiff alleges Baldwin was
performing
duty
to investigate
Pamela’s
problems. There is no evidence
time indicated to Baldwin that Pamela was
missing school because of the alleged
assault
Bass. The evidence
shows
performed
Baldwin
duty,
judgment was
proper on this claim. Plaintiff
brought
claim
Baldwin
for intentional infliction of emotional distress. The claim is based
on Baldwin’s actions of
instigating
filing
juvenile
petition
against Pamela because of her truancy problems. The elements
(1)
(2)
conduct,
of this tort are
extreme and outrageous
which is
(3)
intended to cause and does cause
severe emotional distress.
Dickens v. Puryear, 302 N.C.
416 v.
MEDLIN BASS App. (1989)] N.C. [96 of are the Board based against claims above, Smith, Allen, Baldwin Bass. discussed imputed acts of As against on the claims judgment was Smith, Baldwin, liability the basis and there is no on Allen and of of these employees. actions
[4] As to the claims based
Bass’
alleged
conduct, summary
vicariously
employer
An
can be held
proper.
was
(1) when
employees
liable for the torts of its
three situations:
(2)
act;
when
employee’s
the
employer expressly
the
authorizes
scope
employment
the
act is
the
of his
employee’s
committed
(3)
business; or
when the
employer’s
and in furtherance of the
Country
Hogan
Forsyth
act.
employer
employee’s
ratifies
116,
denied,
Co.,
disc. rev.
App.
Club
79 N.C.
case,
In
claim
Judge Phillips dissents.
Judge Phillips dissenting.
Judge In my plain- whether defendant Bass’s abuse of opinion tiff within the school scope employment occurred fact, law, is claim question board erroneously scope ground board dismissed. Bass’s im- employment majority was not confined to as the doing good, job operate As plicitly holds. session; according
control the children while school was evidence, of her hours his abuse occurred school Thus, her in his where she went to his directive. pursuant office related job that Bass’s abuse arose out materials indicate COURT OF FOUR COUNTY ELECTRIC MEMBERSHIP CORP. v. POWERS authority and circumstances that the law this state and the *7 operating school board under it created. For the assigned board her to that school and she was required obey to attend it and her, those over placed obeying go instructions to to his office she was abused. Since the board endowed Bass with authority and control over the school and Bass exercised that authori- inferred, ty me, reasonably it can plaintiff, abuse be it seems board’s work of operating controlling very definitely the children was in plaintiff’s involved abuse. That the board did not authorize wrongful Bass’s act is beside the point, only as criminals such as the hire people wrong; Mafia to do those who conduct their business through others are as accountable they for their as employees’ mishaps are entitled profit from their ironically beneficial acts. This unjustly decision would beyond the leave law’s all pale rights of children of this state daily who follow the law’s mandate and submit themselves to the school, dominion of kindergarten day care officials and suffer because of I it. do not the law requires any thing. believe such
I also am the that it was opinion error to dismiss the claim against Superintendent Smith negligently investigating the report past of Bass’s sexual For abuses. defendant’s materials indicate though his reported activities and tendencies were most serious children, for one having only control of haphazard, small inept, indeed, conducted; token investigation was instead establishing as a matter of law that the accomplished with care, inference, diligence they either or due support my view, that it was negligently conducted.
FOUR COUNTY ELECTRIC MEMBERSHIP v. HELEN A. CORPORATION POWERS, capacity Secretary Carolina in her official the North Department of Revenue
No. 8910SC34 (Filed 1989) 5 December utility 1. Taxation cooperative electric —franchise of patronage capital tax —exclusion correctly The superior court Secretary
for defendant of Revenue in an refund action