This post appears here courtesy of the Carolina Journal
. The author of this post is CJ Staff
State lawyers are fighting two different lawsuits involving school bus drivers who caused property damage while delivering meals for public school students during the COVID-19 pandemic.
Court filings Wednesday asked the N.C. Court of Appeals to reject both suits.
In one case, the state admits an Alexander County school bus struck an asphalt paver in March 2020, causing more than $16,000 of damage. In the second case, the state admits a Charlotte-Mecklenburg school bus "totaled"
an empty, parked car in October 2020.
In both cases, drivers were using school buses for the "sole purpose of delivering meals to remote-learning students during the school closure caused by the global Covid-19 pandemic,"
according to court filings.
Plaintiffs filed complaints about both incidents with the N.C. Industrial Commission. The local school boards argued that the cases should be dismissed based on two defenses. First, the school systems had sovereign and governmental immunity. Second, the drivers were performing an "emergency management activity"
that would exempt them from legal liability.
The Industrial Commission rejected the school systems' arguments. Now, lawyers representing N.C. Attorney General Josh Stein argue that the state Appeals Court should reverse those decisions.
"To be sure, school buses are rarely used for emergency management activities for a prolonged period during an officially declared, statewide state of emergency. But rarity of circumstance does not change the meaning of any statute's plain language; particularly when, as here, the legislature has made specific provision for that circumstance,"
wrote Special Deputy Attorney General Carl Newman in the Charlotte case. "The legislature has expressed its clear intent to make it possible to use public school buses in an officially declared state of emergency, but impossible to sue for damages for ordinary negligence arising out of those uses."
"Under N.C. Gen. Stat. § 166A-19.60(a), 'Neither the State nor any political subdivision thereof,' such as a board of education like the Defendant, can 'be liable for the death of or injury to persons, or for damage to property as a result of' any 'functions' or 'other activities relating to emergency management' during an officially declared, statewide state of emergency,"
Newman wrote. "The rationale for such an immunity is obvious: robust responses to declared states of emergency may be greatly aided if fear of potential liability for participating in the response to the emergency can be eliminated."
"The application of the immunity is limited to officially declared states of emergency. Where it applies, two branches of government have concurred - the legislature in providing the statutory immunity, and the Governor's executive orders declaring and delineating the official state of emergency."
The bus drivers' "alleged negligent conduct"
occurred while they were "providing for 'the health [and] nutrition ... needs and well-being of children during the school closure,' a specifically enumerated emergency management activity described within an executive order declaring a state of emergency,"
"There is no dispute that a declared state of emergency was in effect for the entire state, ... that schools had been closed, and that part of the emergency management response to the pandemic was to take extraordinary steps to provide meals to remote-learning students,"
he added. "There is no question that the meal delivery to remote learning students while schools were closed for the declared state of emergency qualifies as 'measures taken by the ... governments at federal, State, and local levels to minimize the adverse effects of any type of emergency."
There is no word on when the N.C. Court of Appeals could consider the cases.