Suing the School

Suing the School

Our kids spend thousands of hours in the public schools of North Carolina. Not only are they on school grounds for classroom work, they participate in a vast amount of after school activities such as cheerleading, baseball, football and other sports. Just like a store or a private residence, negligence can occur from the actions or inactions of staff, teachers, coaches, or administration at a public school. The claims against a school or its employees would be the same against any other landowner or any other person. Depending on the facts, this could be a claim that the teacher or coach negligently acted or failed to act and caused an injury. It could also mean that there was a hidden or concealed condition that the school knew about and the injured person did not, and the school failed to correct or warn and caused injury. The school would have the same defenses that a private person or landowner would have, primarily any contributory negligence on the part of the injured person, which would bar his recovery. This defense is mitigated somewhat as a child 7 and under cannot be found to be contributorily negligent and a child between 7 and 14 will be compared to a reasonable 7-14 year old, rather than a reasonable adult.

The main defense a public school will have that a private individual or landowner will not have, is the defense of sovereign immunity. The general rule in North Carolina is that you cannot sue the State or its lesser government entities such as towns and school boards. Therefore, under the general rule, even if you have negligence, you cannot sue a public school or school board for your injuries. However, there are some exceptions. First, the activity must be a traditional government activity. Any classroom activity is a traditional government activity and would be protected by sovereign immunity. The courts have also found school basketball games and after-school daycare are also protected under sovereign immunity. Only where the activity is not a traditional activity is sovereign immunity not a defense, as when a city runs a concert arena or rents out low-income housing.  

The second exception occurs when North Carolina allows itself or its lesser governmental entities to be sued. Suits against the state or its agencies can proceed before the Industrial Commission rather than the state courts. School bus accidents can also proceed in this manner. Also, the state has provided by statute that if a governmental entity entitled to sovereign immunity purchases liability insurance, it has waived any sovereign immunity right up to the amount of that insurance. Historically, this has been the route to defeat sovereign immunity arguments against schools. However, in recent years several counties in North Carolina, including my home county New Hanover, have not purchased insurance but rather participate in the North Carolina School Board Trust. While it appears that the trust would have the same function as true liability insurance, the North Carolina Supreme Court has determined that a school board that participates in the Trust does not waive sovereign immunity.

Even where sovereign immunity exists, some counties will allow for a small amount of recovery for medical bills of the injured student that are not paid by the student’s health insurance. In New Hanover County, this amount is $2500.

Finally, even where the school and school board is protected by sovereign immunity, that protection does not extend to the individual teachers, coaches or staff that were negligent. While an individual teacher likely would not have personal assets to pay for a serious injury to a student, the teacher may have a personal policy of insurance they have privately purchased or obtained through membership with a teacher union or organization. Also, beginning in 2012, the state has paid for an “excess educator’s professional liability policy” for personal liability for teachers in their professional capacity (probably to remove the impetus for the teachers to join a union). Although the policy says “excess,” if the school board has paid nothing voluntarily, that excess insurance should be primary and pay from the first dollar spent, or at least after the school board has paid the $2500.

–Bradley A. Coxe is a practicing attorney in Wilmington, NC with Hodges & Coxe PC who specializes in Personal Injury, Medical Malpractice, Homeowner’s Associations, Contract and Real Estate disputes and all forms of Civil Litigation.  Please contact him at (910) 772-1678.



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