John M. Kirby
Burns v. Union County School Board; School Bus Liability
In Burns v. Union County Board of Education (unpublished), a seven year old student was crossing the street around 6:50 a.m. to board the school bus. He was struck by a motorist and sustained fatal injuries. His Estate sued the County for (a) negligence in the design of the bus stop and (b) negligence by the bus operator in failing to turn on his flashers 300 feet before the stop (which is a requirement). The action was filed in the North Carolina Industrial Commission, as a Tort Claim action. The IC dismissed the case on the basis of N.C. Gen. Stat. 143-300.1, which generally states that the IC has jurisdiction against a school board only for claims based on a mechanical defect or negligent act or omission of the operator; claims based on negligence in the designing and planning of the bus route are not allowed. The Court of Appeals held that the plaintiff's complaint sufficiently pled a claim based on the negligent operation of the bus, and that the case should not have been dismissed at the pleading stage.
This case highlights the complexities in cases against the State (and counties), which typically involve claims of immunity. The school board (as a governmental entity) is generally immune from suit (with respect to governmental, versus proprietary, functions). The individuals who make such design decisions generally have public official immunity.
John Kirby has represented parties in the Industrial Commission, and has extensively researched governmental immunities (e.g. sovereign immunity, official immunity, public duty doctrine).