- The state Court of Appeals will rehear two cases involving school bus drivers involved in accidents while delivering meals during the COVID-19 pandemic.
- Initial rulings in both cases would have allowed legal action against the Charlotte-Mecklenburg and Alexander County school boards to proceed to trial.
- A state Justice Department lawyer representing both school boards argued in November that the initial Appeals Court decisions "misapprehended or overlooked" important issues.
The state Court of Appeals has granted rehearings in two cases involving school bus drivers who caused accidents while delivering meals during the COVID-19 pandemic.
October rulings in both cases would have allowed the lawsuits to proceed to trial. A state Justice Department lawyer representing the Charlotte-Mecklenburg and Alexander County school boards asked the court in November to take another look at the legal issues involved.
Unanimous orders issued Monday granted rehearing requests in both cases. The orders indicated that the appellate judges do not need any additional briefs from opposing lawyers to help make their decisions.
In both instances, a unanimous Appeals Court panel initially rejected the schools’ arguments that they should have won the legal dispute because of sovereign immunity.
In the Alexander County case, bus driver Karen Kondas collided with an asphalt paver while delivering meals to remote-learning students in March 2020, during the early days of Gov. Roy Cooper’s state of emergency related to COVID-19.
Seven months later, bus driver Gerald Rand collided with a parked car while delivering meals to remote-learning students in Charlotte. That accident also took place while Cooper’s state of emergency remained in effect.
Both incidents prompted lawsuits with the state Industrial Commission under the Tort Claims Act in January 2021. Both school boards cited sovereign immunity. Both claimed that the drivers were performing emergency management activity covered by the state Emergency Management Act.
“Concerning whether the Board is immune from suit in this case, we start with the premise that, generally, it is,” Judge Jeff Carpenter wrote in the Alexander County case. “And we acknowledge the TCA clearly waived immunity for school-bus accidents.”
“That clarity, however, faded with the passage of the EMA,” Carpenter added. “The TCA waived immunity, but the EMA created a caveat. In other words, because statutes waiving sovereign immunity must be strictly construed, school boards may be sued in tort concerning school-bus accidents, but they may not be sued concerning accidents involving school buses used for emergency-management purposes.”
“Here, Kondas, as a state employee, drove a yellow ‘school bus’ to deliver food to students during the Covid-19 pandemic,” according to the opinion. “While making her deliveries, Kondas collided with Plaintiff’s property, and under the TCA, Plaintiff sued the Board, the owner of the school bus. North Carolina was in a state of emergency during the incident, and school buses may be used for ‘emergency management’ purposes. Thus, the question before us is whether the school bus in this case was indeed used for an emergency-management purpose.”
“[W]hether the school bus in this case was used for an emergency- management purpose is, at least partly, a remaining issue of fact,” Carpenter explained. “Further, the use of Kondas’s bus is a ‘material fact’ because if it was used for an emergency-management purpose, the Board may maintain sovereign immunity.”
“And if it was not used for an emergency-management purpose, the Board likely does not maintain immunity,” Carpenter added. “Because the bus’s use remains unclear, we think the ‘drastic’ measure of summary judgment is improper.”
The Charlotte case included an additional wrinkle. The record does not indicate whether Rand drove a “school bus” as defined by state law, Carpenter wrote. “[B]ecause N.C. Gen. Stat. § 115C-242 applies to school buses, it is unclear whether the EMA applies to Rand’s conduct, and it is therefore unclear whether the Board maintains sovereign immunity.”
Judges Valerie Zachary and Hunter Murphy joined Carpenter’s opinions in both cases.
In the Charlotte case, Special Deputy Attorney General Carl Newman of the NC Department of Justice argued in a November court filing that the Appeals Court had “misapprehended or overlooked” two issues. First, “it was an undisputed fact that the bus involved was a school bus.”
Second, a 2016 state Supreme Court precedent dictates that Charlotte-Mecklenburg Schools should enjoy sovereign immunity if the vehicle that caused the accident was anything other than a school bus, Newman argued.
“[T]his opinion will require Defendant to have a trial where the only possible outcome is dismissal for lack of jurisdiction due to sovereign immunity, thus eliminating one benefit of that immunity – immunity from trial,” Newman wrote.
In the Alexander County case, Newman raised an additional reason for a new review of the case. “[R]ehearing is needed because the opinion overlooked that it was an undisputed fact that the school bus was being used for an emergency management purpose,” he wrote.
“Because it is undisputed that the school bus involved was being used for an emergency management purpose at the time the collision occurred, this Court’s own holding on the Emergency Management Act’s immunity requires entry of summary judgment on the ground of sovereign immunity,” Newman argued.
No date has been set for the rehearings.