Schmidt v. Breeden

134 N.C. App. 248, 517 S.E.2d 171 (1999)



The liability of a county for torts of its officers and employees is dependent upon whether the activity is properly designated governmental or proprietary in nature. A county is immune from torts committed by an employee carrying out a governmental function and liable for torts committed by an employee while engaged in a proprietary function.


Plaintiff’s son was injured in a program operated by defendant board of education. The parent sued the board and two program staff members, which later moved for partial summary judgment on the ground of governmental immunity. The trial court denied defendants' motion for partial summary judgment. 


Were defendants board of education and staff employees entitled to governmental immunity when it operated the after-school enrichment program?


Yes, and No.


Defendant board was entitled to partial summary judgment on the grounds of governmental immunity. Operation of the after-school program was a governmental, rather than a proprietary, function because governments in the state traditionally engaged in the education of children. The trial court erred by failing to direct partial summary judgment in favor of defendant board. Staff members were also entitled to partial summary judgment to the same extent as the Board for claims against them in their official capacities. However, staff members could be held personally liable for negligent acts in the performance of their duties and thus were not entitled to summary judgment for claims against them in their individual capacities.

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