Lawsuits involving school buses delivering COVID meals can move forward | Eastern North Carolina Now

    Publisher's Note: This post appears here courtesy of the Carolina Journal. The author of this post is CJ Staff.

    The state Court of Appeals will allow two lawsuits to move forward in separate cases involving school buses that caused damage while delivering meals to students during the COVID pandemic.

    The cases involve plaintiffs suing the Charlotte-Mecklenburg and Alexander County school boards.

    In both instances, a unanimous Appeals Court panel has 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."


    Appellate rulings in both cases will allow the lawsuits to move forward. Judges Valerie Zachary and Hunter Murphy joined Carpenter's opinions.
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