Doe v Charlotte-Mecklenburg Bd. of Educ

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NO. COA11-1466 NORTH CAROLINA COURT OF APPEALS Filed: 21 August 2012 JANE DOE, Plaintiff, v. Mecklenburg County No. 11-CVS-9474 THE CHARLOTTE-MECKLENBURG BOARD OF EDUCATION and RICHARD PRIODE, individually and as an employee of the CharlotteMecklenburg Board of Education, Defendants. Appeal by defendant Charlotte-Mecklenburg Board of Education from order entered 22 August 2011 by Judge F. Lane Williamson in Mecklenburg County Superior Court. Heard in the Court of Appeals 4 April 2012. Essex Richards, P.A., by Edward G. Connette and T. Patrick Matus and Karro, Sellers & Langson, by Seth Langson, for plaintiff-appellee. Parker, Poe, Adams & Bernstein L.L.P., by Anthony Fox and Benjamin Sullivan, for defendant-appellant the CharlotteMecklenburg Board of Education. North Carolina Advocates for Justice, by David C. Pishko and Lauren Weinstein, amicus curiae. ERVIN, Judge. Defendant Charlotte-Mecklenburg Board of Education appeals from an order denying its motion to dismiss Plaintiff s complaint for failing to state a claim upon which relief could be granted. In its brief, the Board contends that (1) its appeal, although interlocutory, is properly before this Court -2because the trial court s order amounted to a rejection of the Board s governmental immunity claim; (2) the Supreme Court did not hold in Craig v. New Hanover Cty. Bd. Of Educ., 363 N.C. 334, 338-42, 678 constitutional negligence; and S.E.2d claims (3) 351, (2009), rest may 354-57 solely upon Plaintiff had not that state allegations asserted of viable state constitutional claims against the Board in her complaint. After careful consideration of the Board s challenges to the trial court s order in light of the record and the applicable law, we conclude that the trial court s order should be reversed and that this case should be remanded to the Superior Court for further proceedings Mecklenburg County not inconsistent with this opinion. I. Factual Background On or about 13 May 2011, Plaintiff Jane Doe filed a complaint seeking to recover damages from Defendants stemming from sexual abuse that she suffered at the hands of Defendant Richard School. Priode, her band teacher at South Mecklenburg High According to Plaintiff s complaint, Defendant Priode made sexual advances towards her and eventually induced her to engage in various types of sexual activity, including oral sex and vaginal grounds. intercourse, Defendant with Priode was him both later on and arrested, off school charged, and -3entered a plea of guilty to taking indecent liberties with a child as a result of his involvement with Plaintiff. In her complaint, Defendant Board retention; negligent Plaintiff for negligent infliction asserted hiring, of claims against supervision, emotional and distress; and violation of Plaintiff s rights to an education and to proper educational opportunities as guaranteed by N.C. Const. art. I, § 15 and N.C. Const. art. IX, § 1, and her right to obtain a safe education as guaranteed by N.C. Const. art. I, § 19. According to Plaintiff, the Board should have recognized the signs that Defendant Priode posed a threat to her and taken action prevent the sexual abuse which she suffered at his hands. specifically, Plaintiff alleged, with respect constitutional claims, that: 40. As a separate and distinct cause of action, Plaintiff sues the Defendants for violating her constitutional rights pursuant to North Carolina State Constitution in the following particulars: a. Violation of Article I[,] Section 15 on the grounds that the Defendant allowed the conduct as alleged in this complaint and that this conduct deprived the Plaintiff of her right to an education that is free from harm: b. Violation of Article IX[,] Section 1 in that the Plaintiff was denied educational opportunities free from physical harm or psychological abuse; and to to More her -4c. Violation of Article I[,] Section 19 in that the Plaintiff has been deprived of her liberty, interest and privilege in an education free from abuse or psychological harm as alleged in this complaint. 41. This constitutional claim for damages is pled as an alternative remedy, should the court find that sovereign immunity or governmental immunity in any way of its various forms exists and, if it does exist, in that event Plaintiff has no adequate remedy at law and asserts the constitutional violations pursuant to the laws of North Carolina. On 27 June 2011, the Board filed a partial motion to dismiss pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(6), in which it claims sought on the the dismissal grounds that of Plaintiff s Plaintiff s constitutional complaint failed to allege facts which tended to establish the Board s liability to Plaintiff for violating the various cited in her complaint. constitutional provisions On the same date, the Board filed a second partial motion to dismiss pursuant to N.C. Gen. Stat. § 1A-1, Rules 12(b)(1) and (2), in which it sought the dismissal of Plaintiff s negligent hiring, supervision, and retention and negligent infliction of emotional distress claims on the grounds that the Board enjoy[ed] full governmental immunity[.] On 22 August 2011, the trial court entered an order granting the Board s motion to dismiss Plaintiff s claims for negligent hiring, supervision, and retention and negligent -5infliction of emotional distress, since the Board ha[d] not waived immunity by the purchase of liability insurance. However, the trial court denied the Board s motion to dismiss Plaintiff s constitutional claims in reliance on Craig. After the trial court, at the Board s request, certified the order denying the Board s motion to dismiss Plaintiff s constitutional claims for immediate appeal pursuant to N.C. Gen. Stat. § 1A-1, Rule 54(b), the Board noted an appeal to this Court from the trial court s order. II. Legal Analysis A. Appealability As an initial matter, we must determine whether the Board s appeal is properly before us. Although the Board acknowledges that the trial court s order is interlocutory in nature and that the trial court s order did not constitute a final judgment as to one or more but fewer than all of the claims or parties that was immediately appealable pursuant to N.C. Gen. Stat. § 1A-1, Rule 54(b), it contends that the trial court s refusal to dismiss Plaintiff s constitutional claims affected the Board s substantial right to governmental immunity. We believe that the Board s argument has merit. An interlocutory order is one made during the pendency of an action, which does not dispose of the case, but leaves it for -6further action by the trial court determine the entire controversy. in order to settle and Veazey v. Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381 (citation omitted), r hrg denied, 232 N.C. 744, 59 S.E.2d 429 (1950). As a general proposition, there is no right of immediate appeal from interlocutory orders and judgments. Travco Hotels v. Piedmont Natural Gas Co., 332 N.C. 288, 291, 420 S.E.2d 426, 428 (1992) (citation omitted). Nonetheless, in two instances a party is permitted to appeal interlocutory orders. First, a party is permitted to appeal from an interlocutory order when the trial court enters a final judgment as to one or more but fewer than all of the claims or parties and the trial court certifies in the judgment that there is no just reason to delay the appeal. Second, a party is permitted to appeal from an interlocutory order when the order deprives the appellant of a substantial right which would be jeopardized absent a review prior to a final determination on the merits. Under either of these two circumstances, it is the appellant s burden to present appropriate grounds for this Court s acceptance of an interlocutory appeal and our Court s responsibility to review those grounds. Bullard v. Tall House Bldg. Co., 196 N.C. App. 627, 637, 676 S.E.2d 96, 103 (2009) (citations and quotation marks omitted). According to well-established North Carolina law, governmental immunity is an immunity from suit rather than a mere defense to liability[.] Craig, 363 N.C. at 338, 678 S.E.2d at 354 (quoting Mitchell v. Forsyth, 472 U.S. 511, 526, -7105 S. Ct. 2806, 2815, 86 L. Ed. 2d 411, 425 (1985)) (emphasis omitted). For that reason, [t]his Court has held that denial of dispositive motions such as motions to dismiss . . . that are grounded on governmental immunity affect a substantial right and are immediately appealable. Mabrey v. Smith, 144 N.C. App. 119, 121, 548 S.E.2d 183, 185 (citation omitted), disc. review denied, 354 N.C. 219, 554 S.E.2d 340 (2001); see also Craig, 363 N.C. at 337, [d]enial of S.E.2d a summary cannot be ordinarily [before 678 the Court] at 354 judgment (stating motion immediately is proper is appealed because the that, although the interlocutory and . . . the appeal Board raises the complete defense of governmental immunity, and as such, denial of its summary judgment motion affects a substantial right ); Meherrin Indian Tribe v. Lewis, 197 N.C. App. 380, 385, 677 S.E.2d 203, 207 (2009) (recognizing that the denial of a dismissal motion lodged pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(6), based on a claim of sovereign or governmental immunity is immediately right), disc. appealable review (2010). The decisions addressing because it affects 363 N.C. 806, allowing the denied, decisions the availability a 690 immediate of substantial S.E.2d appeal sovereign 705 of or governmental immunity hinge upon the fact that, were the case to be erroneously permitted to proceed to trial, immunity would -8be effectively lost. Christmas v. Cabarrus Cty., 192 N.C. App. 227, 231, 664 S.E.2d 649, 652 (2008) (quoting Slade v. Vernon, 110 N.C. App. 422, 425, 429 S.E.2d 744, 746 (1993), implicit overruling on other grounds recognized in Boyd v. Robeson Cty., 169 N.C. App. 460, 470, 621 S.E.2d 1, 7, disc. review denied, 359 N.C. 629, 615 S.E.2d 866 (2005)), disc. review denied, 363 N.C. 372, 678 S.E.2d 234 (2009). Although Plaintiff the trial judge [had] acknowledges denied the that, in the event that Board s motion to dismiss [P]laintiff s negligence claims based on governmental immunity, that order would have been appealable immediately, Plaintiff argues that, since Craig holds that governmental immunity is not a bar to constitutional claims such as those that Plaintiff has asserted in this case, the Board is not entitled to rely upon governmental immunity in response to Plaintiff s constitutional claims and that any decision to review the denial of the Board s dismissal motion on a limited record like that before the Court in this case would be tantamount to the unfair prejudicial adoption of a heightened pleading standard. and We do not find Defendant s argument persuasive. The record before us in this case clearly reflects that the Board asserted governmental immunity in its responsive pleading and argued that Plaintiff was not entitled to overcome a -9governmental immunity that solely rested negligently. bar upon by asserting allegations constitutional that the Board claims acted The fact that the trial court rejected the Board s claim of governmental immunity means nothing more than that the trial court found that Plaintiff had stated one or more viable constitutional claims. Such a determination does not mean that the Board is not entitled to governmental immunity; instead, it means that the same determination must be made in order to both determine whether we are entitled to hear the Board s appeal on an interlocutory basis and ascertain whether Plaintiff has, in fact, stated a claim for relief against the Board on the basis of the constitutional provisions upon which she relies. Thus, we cannot determine the extent to which the Board is entitled to appeal the trial court s order on an interlocutory basis without addressing the merits of its challenge to the trial court s determination that Plaintiff stated a claim for relief under the constitutional provisions upon which she relies. that Plaintiff has asserted that certain of The mere fact her claims are constitutional in nature does not automatically mean that she has stated one or more valid constitutional claims or that the Board is not entitled to avoid liability with respect to those claims, properly understood, on governmental immunity grounds. Miller v. Rose, 138 N.C. App. 582, 592, 532 S.E.2d 228, 235 -10(2000) (stating that, in addressing motions filed pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(6), a party s [l]egal conclusions . . . are not entitled to a presumption of truth ). A failure to evaluate the validity of Plaintiff s constitutional claims would allow Plaintiff to simply re-label claims that would otherwise by barred on governmental immunity grounds as constitutional in nature, effectively circumventing the Board s right to rely on a governmental immunity bar. in the event immediately negligence that appeal, we were it to will allegations, hold have thereby to that In other words, the Board litigate forfeiting cannot [Plaintiff] s its substantial right to rely, in appropriate instances, on the doctrine of sovereign immunity in response to Plaintiff s claims. As a result, trial we conclude that the Board s appeal from the court s order is properly before this Court. B. Plaintiff s Constitutional Claims Secondly, the Board contends that the trial court erred by denying its motion to dismiss Plaintiff s constitutional claims on the grounds that [n]one of the constitutional provisions cited by [Plaintiff] can be violated by negligence alone. Put another way, the ultimate issue raised by the Board s appeal is whether Plaintiff has stated a claim for relief based upon the relevant provisions of the state constitution. After careful -11consideration, we conclude that this question must be answered in the negative. 1. Standard of Review We review a motion to dismiss for failure to state a claim de novo. Bobbitt ex. rel. Bobbitt v. Eizenga, __ N.C. App. __, __, 715 S.E.2d 613, 615 (2011) (citation omitted). In making that determination, we must ascertain whether, as a matter of law, the allegations of the complaint . . . are sufficient to state a claim upon which relief may be granted. Farrell v. Transylvania Cty. Bd. of Educ., 175 N.C. App. 689, 695, 625 S.E.2d 128, 133 (2006) (quoting Harris v. NCNB Nat. Bank of North Carolina, (1987)). 85 N.C. App. 669, 670, 355 S.E.2d 838, 840 In conducting the required analysis, we must consider the allegations in the [plaintiff s] complaint [to be] true, construe the complaint liberally, and only reverse the trial court s denial of a motion to dismiss if [the] plaintiff is entitled to no relief under any set of facts which could be proven in support of the claim. Id. (citing Hyde v. Abbott Laboratories., Inc., 123 N.C. App. 572, 575, 473 S.E.2d 680, 682, disc. review denied, 344 N.C. 734, 478 S.E.2d 5 (1996)). Dismissal is proper when one of the following three conditions is satisfied: (1) the complaint on its face reveals that no law supports the plaintiff s claim; (2) the complaint on its face reveals the absence of facts sufficient to make a good -12claim; or (3) the complaint discloses some fact that necessarily defeats the plaintiff s claim. Bobbitt, __ N.C. App. at __, 715 S.E.2d at 615 (quoting Guyton v. FM Lending Services, Inc., 199 N.C. App. 30, 33, 681 S.E.2d 465, 469 (2009) (citation and quotation marks omitted)). 2. Applicability of Craig In determining that Plaintiff had, in fact, adequately stated a claim for relief under the relevant provisions of the North Carolina Constitution, the trial court appears to have concluded that the allegations underlying the constitutional claims that Plaintiff has asserted here are identical to those at issue in Craig and that the Supreme Court held in Craig that such allegations sufficed to state a claim for relief pursuant to the constitutional provisions upon which Plaintiff relies. We believe that the trial court s decision, with which our dissenting colleague agrees, rests upon a misapprehension of the Supreme Court s decision in Craig. In Craig, the plaintiff sought to obtain a damage recovery against the New Hanover County Board of Education based upon its failure to protect him from sexual abuse that he allegedly suffered at the hands of one of the defendant s employees. N.C. at 335, 678 S.E.2d at 352. asserted various common law 363 In his complaint, the plaintiff negligence claims against the -13defendant and also alleged that the defendant deprived him of an education free from harm and psychological abuse in violation of N.C. Const. art. I, §§ 15 & 19 and N.C. Const. art. IX, § 1. Id. After failing to persuade the trial court to grant summary judgment in its favor, the defendant appealed to this Court, which unanimously reversed the trial court s decision with respect to the plaintiff s common law claims on governmental immunity grounds. 353. Id. at 335-36, 678 S.E.2d at In addition, by a divided vote, we reversed the trial court s decision with respect to the plaintiff s constitutional claims on the grounds that the plaintiff s common law negligence claim [was] an adequate remedy at state law. Id. In other words, a majority of this Court held that, even though the plaintiff s common law negligence claims were clearly barred by the doctrine of governmental immunity, that fact did not render whether those the claims inadequate plaintiff constitutionally-based for was entitled claims. On purposes to appeal, of assert the determining alternative Supreme Court held that the [p]laintiff s common law cause of action for negligence [did] not provide an adequate remedy at state law when governmental immunity [stood] as an absolute bar to [that] claim, so that the plaintiff could alternatively advance his colorable claims directly under our State Constitution based on -14the same facts that negligence claim. In denying constitutional appears to the basis for his common law Id. at 340, 678 S.E.2d at 355. the claims have formed Board s in motion reliance concluded that on Craig to dismiss Craig, the contained Plaintiff s trial two court separate holdings, one of which relates to the substantive merits of the plaintiff s constitutional claims, instead of a single holding to the effect that a common law claim which is barred by the doctrine of governmental immunity is not an adequate substitute for a constitutionally-based claim. The fundamental problem with the trial court s logic is that the Supreme Court simply declined to consider constitutional claims the that substantive the viability plaintiff of attempted the state to assert pursuant to N.C. Const. art. I, §§ 15 & 19 and N.C. Const. art. IX, § 1, in Craig, explicitly stating that its decision did not predetermine the likelihood that [the] [p]laintiff [would] win other pretrial ultimately motions, succeed on the defeat merits affirmative of his case defenses, and that or its holding simply ensure[d] that an adequate remedy must provide the possibility of relief under the circumstances. Id. In other words, the Supreme Court simply held in Craig that the existence of common law claims that were barred by the doctrine of sovereign or governmental immunity did not operate to bar the -15plaintiff from attempting to assert any constitutional claims that he might have otherwise had against the defendant while expressly declining constitutional claims to address had the extent substantive merit. to which Fothergill his v. Jones Cty. Bd. of Educ., __ F. Supp. 2d __, __, 2012 WL 202777, *3, 2012 U.S. Dist. LEXIS 7570, *8 (E.D.N.C. Jan. 8, 2012) (holding that the court in Craig expressly declined to rule on the merits of that constitutional claim . . . . ); Collum v. Charlotte-Mecklenburg Bd. of Educ., 2010 WL 702462, *2, 2010 U.S. Dist. LEXIS 15824, *7 (W.D.N.C. Feb. 23, 2010) (holding that the Supreme Court in Craig simply stated that the plaintiff in that case was not precluded from asserting the state constitutional claim, without reaching the merits of that claim ).1 1 As a result, contrary to the conclusion reached by the Admittedly, the Supreme Court made several references to the colorable claims asserted by the plaintiff in its opinion in Craig, a fact which seems to lie at the heart of our dissenting colleague s belief that Craig implicitly addresses substantive constitutional issues in addition to determining whether the existence of a common law claim that is clearly barred by governmental immunity precludes the assertion of a constitutionally-based claim. However, the absence of any substantive analysis of the viability of the plaintiff s claims under the relevant provisions of the North Carolina constitution coupled with the Supreme Court s explicit statement that its decision did not predetermine the likelihood that [the] [p]laintiff [would] win other pretrial motions, defeat affirmative defenses, or ultimately succeed on the merits of his case, Craig, 363 N.C. at 340, 678 S.E.2d at 355, indicates that the Supreme Court did not intend these references to the plaintiff s colorable claims to be tantamount to a holding -16trial court dissenting and in colleague, the separate Craig does opinion not submitted control the by our substantive issue before us in this case, resulting in the necessity for us to independently determine whether Plaintiff has stated a claim for which relief can be granted under some [constitutionallybased] legal theory. Bobbitt, __ N.C. App. at __, 715 S.E.2d at 615 (citation and quotation marks omitted).2 In seeking to establish that the present case is factually and procedurally indistinguishable from Craig and that we are bound by what she perceives to be the holding in that case, State v. Gillis, 158 N.C. App. 48, 53, 580 S.E.2d 32, 36 (stating that [t]his Court is bound by precedent of the North Carolina Supreme Court ), disc. review denied, 357 N.C. 508, 587 S.E.2d 887 (2003), our dissenting colleague advances a number of different arguments. As an initial matter, our dissenting that the allegations in the plaintiff s complaint stated a valid claim for relief. In order to reach a contrary determination, we would have to conclude that the Supreme Court recognized a constitutionally-based liability claim sounding primarily in negligence without engaging in any analysis of the extent to which that outcome was appropriate, an outcome which we believe to be unlikely. 2 Although Plaintiff argues that the effect of our decision is to impose a heightened pleading requirement upon claims such as those that she is attempting to assert here, the ultimate issue that we must address is, in reality, the exact contours of the substantive rights created by the constitutional provisions upon which Plaintiff relies rather than the manner in which claims arising under those constitutional provisions should be pled. -17colleague contends that the only dispositive difference between this case and Craig is that Craig was decided on a motion for summary judgment while here the trial [D]efendant[s] . . . 12(b)(6) motion. our dissenting colleague that the court ruled upon Although we agree with factual allegations relied upon in Craig and those relied upon in the present case are substantially the same and that this difference in the procedural context between the two cases does not justify a different outcome with respect to the merits of the two claims, that fact does not have any real bearing upon the proper resolution of the underlying dispute at issue here, which is whether Craig contains a single holding relating to the extent to which the existence of a common law claim that is barred by the doctrine of governmental immunity precludes the assertion of a constitutionally-based claim or whether Craig addresses substantive constitutional issues as well. in concluding that Craig contains an implicit implicitly Secondly, substantive constitutional holding, our dissenting colleague emphasizes the fact that the Supreme Court in Craig reversed our decision to the effect that summary judgment should have been granted in favor of the constitutional defendant claims. with respect However, this to the argument plaintiff s overlooks the fact that we had held that summary judgment should have been -18awarded in favor of the defendant on the grounds that the availability of governmental immunity as an absolute bar to the plaintiff s common law claims did not suffice to render those common law remedies inadequate for the purpose of determining whether a constitutionally-based claim arising out of the same alleged conduct should be recognized, not that the substantive allegations in the plaintiff s complaint stated a valid claim for relief under the relevant constitutional provisions or that summary judgment could never be granted in that case under any theory. Thirdly, essentially the rejecting fact the that the defendant s Supreme attempt Court, to by obtain an appellate decision which, in essence, would have recognized a governmental immunity defense to constitutionally-based claims which bore provided a North adjudicate resemblance Carolina plaintiff s to trial claims recognized courts fully, common with says law claims, jurisdiction nothing about to the extent, if any, to which the Supreme Court implicitly held that the allegations set out in the complaints at issue in either this case or Craig stated a viable claim for relief based upon the relevant constitutional provisions. As a result, given that none of the arguments advanced by our dissenting colleague in support of the trial court s interpretation of Craig strike us as persuasive, we will proceed to determine whether the -19allegations of Plaintiff s complaint do, in fact, state valid claims for relief predicated upon the relevant constitutional provisions. 3. N.C. Const. art. I, § 15 and N.C. Const. art. IX, § 1 Initially, Plaintiff contends that the Board s negligent acts and omissions violated her right to an education that [was] free from harm and psychological abuse as guaranteed by N.C. Const. art. I, § 15 and N.C. Const. art. IX, § 1. N.C. Const. art. I, § 15 provides that [t]he people have a right to the privilege of education, and it is the duty of the State to guard and maintain that right. Similarly, N.C. Const. art. IX, § morality, 1 states necessary to that [r]eligion, good government and the and knowledge happiness of being mankind, schools, libraries, and the means of education shall forever be encouraged. guarantees, In the giving Supreme content Court has to these held constitutional that North Carolina students are entitled to receive an education that satisfies certain qualitative standards. of North Carolina, 346 N.C. 336, 345, 488 S.E.2d 249, 254 (1997). As a result, the Supreme Court entitled to receive a has sound Leandro recognized basic v. State that education a in student our schools, including: (1) sufficient ability to read, write, and speak the English language and a sufficient is public -20knowledge of fundamental mathematics and physical science to enable the student to function in a complex and rapidly changing society; (2) sufficient fundamental knowledge of geography, history, and basic economic and political systems to enable the student to make informed choices with regard to issues that affect the student personally or affect the student s community, state, and nation; (3) sufficient academic and vocational skills to enable the student to successfully engage in post-secondary education or vocational training; and (4) sufficient academic and vocational skills to enable the student to compete on an equal basis with others in further formal education or gainful employment in contemporary society. Id. at 347, 488 S.E.2d at 255. To date, we are not aware of any decision by either this Court or the Supreme Court which has extended the educational rights guaranteed by N.C. Const. art. I, § 15 and N.C. Const. art. IX, § 1, beyond matters that directly relate to the nature, extent, and quality of the educational opportunities available to students in the public school system. made Although the serious wrongfulness inherent in the actions in which Defendant Priode allegedly engaged should not be minimized in any way, we are unable to see how the allegations set out in Plaintiff s complaint state provisions. a claim for violating these constitutional Put another way, we are unable to discern from either the language of the relevant constitutional provisions or the reported decisions construing these provisions that North -21Carolina public school students have a state constitutional right to recover damages from local boards of education for injuries remain sustained aware employees. of as and the result supervise of the a negligent conduct of failure public to school As a result, Plaintiff s complaint on its face reveals the absence of facts sufficient to make a good claim under N.C. Const. art. I, § 15 or N.C. Const. art. IX, § 1, such that Plaintiff constitutional has failed provisions to upon state which a claim relief based may be on those granted. Bobbitt, __ N.C. App. at __, 715 S.E.2d at 615 (citation and quotation marks omitted). 4. N.C. Const. art. I, § 19 Secondly, Plaintiff asserts that the Board deprived her of her liberty, interest and privilege in an education free from abuse or psychological harm as guaranteed by N.C. Const. art. I, § 19, which provides that: [n]o person shall be taken, imprisoned, or disseized of his freehold, liberties, or privileges, or outlawed, or exiled, or in any manner deprived of his life, liberty, or property, but by the law of the land. No person shall be denied the equal protection of the laws; nor shall any person be subjected to discrimination by the State because of race, color, religion, or national origin. According to well-established North Carolina law, N.C. Const. art. I, § 19 guarantees both due process rights and equal -22protection under the law and has been interpreted as being similar to the due process clause of the Fourteenth Amendment to the Federal Constitution. Rhyne v. K-Mart Corp., 358 N.C. 160, 180, 594 S.E.2d 1, 15 (2004). process is simply not As a general proposition, due implicated by a negligent act of an official causing unintended loss of or injury to life, liberty, or property. Daniels v. Williams, 474 U.S. 327, 328, 106 S. Ct. 662, 663, 88 L. Ed. 2d 662, 666 (1986) (emphasis omitted) (holding that the negligent act of a deputy sheriff which caused injury to the plaintiff did not support a finding of liability based upon correctly the due granted process summary clause, judgment so in that the trial defendant s court favor with respect to a due process claim that the plaintiff had asserted pursuant to 42 U.S.C. § 1983). act causing injury to life, Where a government official s liberty, or property negligent, no procedure for compensation is required. is merely constitutionally Id. at 333, 106 S. Ct. at 666, 88 L. Ed. 2d at 669 (emphasis omitted) (quoting Parratt v. Taylor, 451 U.S. 527, 548, 101 S. Ct. 1908, 1919, 68 L. (Powell, J., concurring in result)).3 3 Ed. 2d 420, 437 (1981) As a result, assuming, As Plaintiff correctly notes, decisions construing the due process clause of the United States constitution are not dispositive of the proper interpretation of the law of the land clause of N.C. Const. art. I, § 19. Bacon v. Lee, 353 N.C. 696, 721, 549 S.E.2d 840, 856-57 (2001). However, we have -23without in any way deciding, that N.C. Const. art. I, § 19 entitles Plaintiff to an education free from abuse or physical harm, we recovery do not against believe the that Board alleged in her complaint.4 she based is upon entitled the to a negligent damage conduct As a result, we are compelled to conclude that no law supports [Plaintiff s] claim for relief based upon N.C. Const. art. I, § 19, Bobbitt, __ N.C. App. at __, 715 S.E.2d at 615 (citation and quotation marks omitted), so that her complaint fails to state a claim for relief based upon that constitutional provision as well. III. Conclusion Thus, for the reasons set forth above, we hold that the Board s appeal from the trial court s order denying its motion to dismiss Plaintiff s constitutional claims is properly before this Court and that Plaintiff has failed to state claims arising under various provisions of the North Carolina Constitution for not found any authority tending to suggest that the degree of inattention to Plaintiff s safety alleged to have occurred in this case rises to the level of a violation of Plaintiff s rights under N.C. Const. art. I, § 19 and do not believe that deficient supervision of the type alleged to have occurred here suffices to support a determination that Plaintiff is entitled to recover damages from the Board under the law of the land clause. 4 Our dissenting colleague does not appear to disagree with this understanding of the relevant federal decisions. -24which relief may be granted.5 As a result, the trial court s order should be, and hereby is, reversed and this case should be, and hereby is, remanded to the Mecklenburg County Superior Court for further proceedings not inconsistent with this opinion. REVERSED AND REMANDED. JUDGE ROBERT C. HUNTER concurs. JUDGE STROUD dissents by separate opinion. 5 The fact that Plaintiff has failed to state a claim for relief pursuant to the constitutional provisions upon which she relies does not mean that she lacks an adequate remedy. [T]o be considered adequate in redressing a constitutional wrong, a plaintiff must have at least the opportunity to enter the courthouse doors and present his claim. Craig, 363 N.C. at 339-40, 678 S.E.2d at 355. As the record clearly reflects, Plaintiff had an opportunity to present her claims to the Court and obtain a determination as to whether those claims had any substantive merit without having to overcome any sovereign or governmental immunity bar. However, since Plaintiff has failed to state viable constitutional claims against the Board, such claims, to the extent that they have any viability under the common law, are barred by governmental immunity. Although our dissenting colleague disagrees with this assertion and argues that the plaintiff in Craig had no more opportunity to present his claims than Plaintiff has had in this case, we do not find this argument persuasive given that it rests solely upon her belief that Craig contains a substantive constitutional holding, an argument which we have not found persuasive for the reasons set forth above. -25NO. COA11-1466 NORTH CAROLINA COURT OF APPEALS Filed: 21 August 2012 JANE DOE, Plaintiff, v. Mecklenburg County No. 11-CVS-9474 THE CHARLOTTE-MECKLENBURG BOARD OF EDUCATION and RICHARD PRIODE, individually and as an employee of the Charlotte-Mecklenburg Board of Education, Defendants. STROUD, Judge dissenting. Although I agree that defendant Board s interlocutory appeal affects a substantial right, I disagree that the trial court s order should be reversed and remanded. Based upon Craig v. New Hanover Cty. Bd. of Educ., 363 N.C. 334, 678 S.E.2d 351 (2009), I believe this Court is required to affirm the order of the trial court denying defendants motion to dismiss, and therefore I respectfully dissent. The majority noted correctly that the ultimate issue raised by the Board s appeal is whether Plaintiff has stated a claim for relief based upon the relevant provisions of the state -26constitution[,] but answers this question in the negative. The majority relies upon its analysis of Craig, determining that the Supreme Court simply declined to consider the substantive viability of the state constitutional claims that the plaintiff attempted to assert pursuant to N.C. Const. art. I, §§ 15 & 19 and N.C. Const. art. IX, § 1, in Craig, explicitly stating that its decision did not predetermine the likelihood that [the] [p]laintiff [would] win other pretrial motions, defeat affirmative defenses, or ultimately succeed on the merits of his case and that its holding simply ensure[d] that an adequate remedy must provide the possibility of relief under the circumstances. Id. Although it is certainly true that the Supreme Court s decision in Craig did not mean that the plaintiff in that case would trial ultimately court s prevail, denial the of Supreme Court defendant s did motion affirm for the summary judgment[,] thus permitting the plaintiff to proceed with his colorable negligence. constitutional Id. at claims 340-42, 678 based S.E.2d upon at allegations 355-57. If of the Supreme Court did not consider Craig s colorable constitutional claims sufficiently viable to survive dismissal at the summary judgment stage, it would have reversed the trial court s order denying the defendant s motion for summary judgment since the constitutional claims were the only claims being considered in the Craig appeal. See id. at 336-42, 678 S.E.2d at 353-57. -27There was no dispute that the negligence claims were barred by governmental immunity, either in Craig or in this case, thus leaving only the constitutional claims for consideration. id. at 338, 678 S.E.2d at 354. See The difficulty with Craig is that the opinion provides no meaningful guidance on just what a colorable constitutional claim[] based upon negligence is, id., 363 N.C. at 334-42, 678 S.E.2d at 351-57, but whatever it may be, if one existed in Craig, the same claim exists in this case, and for that reason the trial court properly denied defendant Board s motion to dismiss. I. The Colorable Constitutional Claims Supreme Court in Craig referred to the plaintiff s claims as colorable constitutional claims. Id. at 342, 678 S.E.2d that at 357. Defendant Board argues colorable constitutional claims[,] id., require something more than just an ordinary negligence claim which has been given an alternate title as a constitutional claim with some sections of the North Carolina factual State allegations Constitution which would cited in actually support, make the something more than an ordinary negligence claim. such a claim essentially to proceed eliminate could, sovereign or as a most, if not all, ordinary negligence cases. no claim Allowing practical governmental but matter, immunity in I have therefore -28examined Craig, and its predecessor Corum v. University of North Carolina, 330 N.C. 761, 413 S.E.2d 276, cert. denied, 506 U.S. 985, 121 L.Ed. 2d 431 (1992), to see if they support defendant Board s argument that colorable constitutional claims[,] Craig, 363 N.C. at 342, 678 S.E.2d at 357, which may survive a motion to dismiss, require more than allegations of negligence coupled with the allegation that the defendant s actions violate the North Carolina State Constitution. 1. Craig s Reliance on Corum I can find no definition of colorable claim in the context of a constitutional claim in our case law, but Black s Law Dictionary defines it as [a] claim that is legitimate and that may reasonably be asserted, given the facts presented and the current law[.] Black s Law Dictionary 282 (9th ed. 2009). As Black s definition reveals nothing about what a colorable constitutional claim[] is, Craig, 363 N.C. at 342, 678 S.E.2d at 357; Black s Law Dictionary 282, I have sought guidance in Corum. In contrast to Craig, in Corum, the case upon which Craig relied, the plaintiff, formerly employed as a dean at Appalachian State University, alleged the defendants discharged him from his deanship in retaliation for his speaking freely about the moving of the Appalachian Collection[,] in violation of his free speech rights, including those under North Carolina -29Constitution Article I, Sections 14, 19, and 35[.] Corum, 330 N.C. at 766-70, 413 S.E.2d at 280-82; see Craig, 363 N.C. at 338-42, 678 S.E.2d at 354-57. The Supreme Court determined that our common law guarantees plaintiff a direct action under the State Constitution for alleged violations of his constitutional freedom of speech rights. We conclude that plaintiff does have a direct cause of action under the State Constitution against defendant Durham in his official capacity for alleged violations of plaintiff's free speech rights. Corum, 330 N.C. at 783, 413 S.E.2d at 290 (citation omitted). Thus, in Corum, the constitutional claim was based upon specific factual allegations of an intentional act of the defendant alleged to be a violation of a constitutional right, the right to freedom of speech. Yet claim. Corum See id. at 770, 413 S.E.2d at 282. does not mention the concept of a colorable See id., 330 N.C. 761, 413 S.E.2d 276. In addition, the Corum Court cited ten cases in support of its statement that authorities in North Carolina are consistent with the decisions of the United States Supreme Court and decisions of other state supreme courts to the effect that officials and employees of the State acting in their official capacity are subject to direct causes of action by plaintiffs whose constitutional rights have been violated[;] none of these ten cases define a colorable claim. 2. Craig s Analysis address negligence claims and none Id. at 783-84, 413 S.E.2d at 290. -30Turning back to Craig, I have been unable to discern any factual allegations which would establish that the plaintiff s constitutional claim was a colorable claim based upon anything other than the exact negligence claims. same allegations which supported the See Craig, 363 N.C. 334, 678 S.E.2d 351. Legally, Craig s analysis and holding relied specifically upon Corum. See Craig at 342, 678 S.E.2d at 356-57 ( In sum, we hold that plaintiff s common law negligence claim is not an adequate remedy at state law because it is entirely precluded by the application otherwise of would the be doctrine contrary of to sovereign our immunity. opinion in To Corum hold and inconsistent with the spirit of our long-standing emphasis on ensuring redress for every constitutional injury. (quotation marks omitted)). The Craig Court also noted that our holding here is likewise consistent with the spirit of our reasoning in Sale v. State Highway & Public Works Commission, 242 N.C. 612, 89 S.E.2d 290 (1955), and Midgett v. North Carolina State Highway Commission, 260 N.C. 241, 132 S.E.2d 599 (1963), overruled on other grounds by Lea Co. v. North Carolina Board of Transportation, 308 N.C. 603, 616, 304 S.E.2d 164, 174 (1983). Id. at 341, 678 S.E.2d at 356. Both Sale and Midgett dealt with the taking of property for public use. See Midgett, 260 N.C. 241, 132 S.E.2d 599; Sale, 242 N.C. 612, 89 S.E.2d 290. Neither Sale nor Midgett provides any guidance as to the identification -31of a colorable negligence. constitutional claim in the context of See Midgett, 260 N.C. 241, 132 S.E.2d 599; Sale, 242 N.C. 612, 89 S.E.2d 290. As states to the that factual as to allegations, his in constitutional Craig, footnote claim the four plaintiff alleged: The constitutional claim for damages is plead [sic] as an alternative remedy, should the court find that sovereign immunity or governmental immunity in any of its various forms exists and, if it does exist, which the plaintiffs deny, then, in that event, plaintiffs have no adequate remedy at law and assert the constitutional violations pursuant to the laws of North Carolina. Id. at 340 n.4, 678 S.E.2d at 355 n.4 (quotation marks omitted). It appears that no other facts or circumstances other than those of negligence were alleged which would lead to the conclusion that the plaintiff had made colorable constitutional claims. See id., 363 N.C. at 334-42, 678 S.E.2d at 351-57. Although Craig did not explain what a colorable constitutional claim[] requires, id., 363 N.C. at 334-42, 678 S.E.2d at 35157, I note that in other cases, claims which have been treated as constitutional have truly been grounded in facts which demonstrate a violation of a constitutional right, and not mere negligence claims to which the heading constitutional has been appended. See, e.g., Sanders v. State Personnel Com'n, 183 N.C. -32App. 15, 644 S.E.2d 10, disc. review denied, 361 N.C. 696, 652 S.E.2d 653 (2007). 3. Federal Courts Approach Given the lack of guidance in North Carolina cases as to a colorable constitutional claim[,] Craig, 363 N.C. at 342, 678 S.E.2d at 357, based upon allegations of negligence, I have reviewed federal cases addressing this issue. States Supreme cases which Court s allege treatment of constitutional I find the United governmental violations immunity based in upon negligent conduct to be instructive, as the Court has determined that a mere negligence claim is not transformed constitutional claim merely by pleading it as such. into a See, e.g., Daniels v. Williams, 474 U.S. 327, 88 L.Ed. 2d 662 (1986). In Daniels, the United States Supreme Court considered the personal injury claim of a prisoner who alleged he was injured when he slipped and fell on a pillow negligently left on the stairs by a deputy. Id. at 328, 88 L.Ed. 2d at 666. The Court noted that in any given § 1983 suit, the plaintiff must still prove a violation of the underlying constitutional right; and depending on the right, merely negligent conduct may not be enough to state a claim. Id. at 330, 88 L.Ed. 2d at 667. continued, The Due Process Clause of the Fourteenth Amendment provides: [N]or shall The Court -33any State deprive any person of life, liberty, or property, without due process of law. Historically, this guarantee of due process has been applied to deliberate decisions of government officials to deprive a person of life, liberty, or property. E.g., Davidson v New Orleans, 96 US 97, 24 L Ed 616 (1878) (assessment of real estate); Rochin v California, 342 U.S. 165, 96 L Ed 183, 72 S Ct 205 (1952) (stomach pumping); Bell v Burson, 402 US 535, 29 L Ed 2d 90, 91 S Ct 1586 (1971) (suspension of driver s license); Ingraham v Wright, 430 US 651, 51 L Ed 2d 711, 97 S Ct 140, (1977) (paddling student); Hudson v Palmer, supra (intentional destruction of inmate s property). No decision of this Court before Parratt supported the view that negligent conduct by a state official, even though causing injury, constitutes a deprivation under the Due Process Clause. This history reflects the traditional and commonsense notion that the Due Process Clause, like its forebear in the Magna Carta, see Corwin, The Doctrine of Due Process of Law Before the Civil War, 24 Harv L Rev 366, 368 (1911), was intended to secure the individual from the arbitrary exercise of the powers of government, Hurtado v. California, 110 US 516, 527, 28 L Ed 232, 4 S Ct 111 (1884) (quoting Bank of Columbia v Okely, 4 Wheat 235, 244, 4 L Ed 559 (1819)). See also Wolff v McDonnell, 418 US 539, 558, 41 L Ed 2d 935, 94 S Ct 2963 (1974) ( The touchstone of due process is protection of the individual against arbitrary action of government, Dent v West Virginia, 129 US 114, 123 [32 L Ed 623, 9 S Ct 231] (1889) ); Parratt, supra, at 549, 68 L Ed 2d 420, 101 S Ct 1908 (POWELL, J., concurring in result). By requiring the government to follow appropriate procedures when its agents decide to deprive any person of life, liberty, or property, the Due Process Clause promotes fairness in such decisions. And by barring certain government actions -34regardless of the fairness of the procedures used to implement them, e.g., Rochin, supra, it serves to prevent governmental power from being used for purposes of oppression, Murray's Lessee v Hoboken Land & Improvement Co., 18 How 272, 277, 15 L Ed 372 (1856) (discussing Due Process Clause of Fifth Amendment). We think that the actions of prison custodians in leaving a pillow on the prison stairs, or mislaying an inmate s property, are quite remote from the concerns just discussed. Far from an abuse of power, lack of due care suggests no more than a failure to measure up to the conduct of a reasonable person. To hold that injury caused by such conduct is a deprivation within the meaning of the Fourteenth Amendment would trivialize the centuries-old principle of due process of law. Id. at 331-32, 88 L.Ed. 2d at 668. Although the distinction between deliberate conduct and negligent conduct is not always obvious, the United States Court of Appeals, Fourth Circuit, has determined that there must be some element of intent, and more than constitutional claim to survive immunity. 472 F.3d 174, 201 (4th Cir. 2006). Circuit Court defendants plaintiff s vacated because summary there allegations was that the for a See Lovelace v. Lee, In Lovelace, the Fourth judgment a negligence, genuine in favor issue defendant s as of the to the actions intentional; the Court noted: The district court extended the analysis in Daniels and Pink to Lovelace s First Amendment free exercise claim, were -35reasoning that the operative word prohibit in the First Amendment likewise connotes a conscious act rather than a merely negligent one. J.A. 171. Accordingly, the district court held that negligent interference with free exercise rights is not actionable under § 1983. We agree and hold that negligent acts by officials causing unintended denials of religious rights do not violate the Free Exercise Clause. Accord Lewis v. Mitchell, 416 F.Supp.2d 935, 942 44 (S.D.Cal.2005); Shaheed, 885 F.Supp. at 868. Lovelace must assert conscious or intentional interference with his free exercise rights to state a valid claim under § 1983. Although the district court imposed the proper state-of-mind requirement, it partially erred in finding that the defendants actions resulted from negligence and not from intentional action. J.A. 171. The court correctly assessed the evidence against Shinault and Lee (in their individual capacities), but it underestimated the strength of the evidence against Lester. The facts, taken in the light most favorable to Lovelace, raise a genuine dispute whether Lester acted intentionally in depriving Lovelace of his free exercise rights. For this reason, summary judgment in favor of Lester on the First Amendment claim was error. Id. at 201-02. The Fourth Circuit has also noted that the rationale stated in Daniels, which arose under the 14th Amendment s Due Process Clause, has been applied constitutional provisions. 331-32, 88 L.Ed. 2d at 668. v. Lester, in cases arising under other Id. at 201; see Daniels, 474 U.S. at The Fourth Circuit stated in Pink -36Daniels rejection of a theory of actionable negligence under the Due Process Clause is consistent with Supreme Court cases interpreting other provisions of the Constitution. For instance, Estelle v. Gamble held that only conduct rising to the level of deliberate indifference constitutes infliction of cruel and unusual punishment for purposes of the Eighth Amendment. 429 U.S. 97, 104, 97 S.Ct. 285, 291, 50 L.Ed.2d 251 (1976). Similarly, Arlington Heights v. Metropolitan Housing Dev. Corp. requires discriminatory purpose in order to establish a denial of Equal Protection. 429 U.S. 252, 265, 97 S.Ct. 555, 563, 50 L.Ed.2d 450 (1977). The language and the purpose of the Due Process Clause thus restrict violations thereof to official conduct that entails some measure of deliberateness. Absent such limitation, the Fourteenth Amendment would be demeaned, and federal courts would adjudicate claims that lacked connection to federal law. In our system of governance, the Constitution is revered but not ubiquitous, and federal courts sit as courts of limited jurisdiction. Thus, as Daniels underscores, not all undesirable behavior by state actors is unconstitutional. See Paul v. Davis, 424 U.S. 693, 701, 96 S.Ct. 1155, 1160, 47 L.Ed.2d 405 (1976) (the Fourteenth Amendment is not a font of tort law to be superimposed upon whatever systems may already be administered by the States ). Pink v. Lester, 52 F.3d 73, 75 (4th Cir. 1995). Thus, in my view, the federal courts requirement of some element of intent or deliberate indifference in constitutional claims, see, e.g., Lovelace, necessary 472 for F.3d a at 201-02, at negligence-based the very least, colorable should be constitutional claim[,] Craig, 363 N.C. at 342, 678 S.E.2d at 357, under North -37Carolina law as well, but I also recognize that Craig does not appear to impose such a requirement. See id., 363 N.C. 334, 678 S.E.2d 351. II. Interpretations of Craig The trial court, the majority, and I in this dissent all agree that Craig is the controlling case; unfortunately, we disagree on what it means and its application to this case. I will therefore attempt to address our areas of disagreement. The majority summarized, In Craig, the plaintiff sought to obtain a damage recovery against the New Hanover County Board of Education based upon its failure to protect him from sexual abuse that he allegedly suffered at the hands of one of the defendant s employees. 363 N.C. at 335, 678 S.E.2d at 352. In his complaint, the plaintiff asserted various common law negligence claims against the defendant and also alleged that the defendant deprived him of an education free from harm and psychological abuse in violation of N.C. Const. art. I, §§ 15 & 19 and N.C. Const. art. IX, § 1. Id. The Board moved for summary judgment which the trial court subsequently denied; the Board appealed. Id. at 335, 678 S.E.2d at 352-53. to the This Court issued an opinion by a divided panel as plaintiff s S.E.2d at 353. constitutional claims. Id. at 336, 678 The Supreme Court granted certiorari to consider plaintiff s constitutional claims, noting that this Court s -38majority concluded that plaintiff s common law negligence claim is an adequate remedy at state law, and thus, the constitutional claims are barred. The dissenting opinion contended that plaintiff s negligence claim cannot be an adequate state remedy since governmental immunity completely defeats the claim. By an order dated 6 March 2008, we granted certiorari to review the Court of Appeals decision only as the issue raised in the dissenting opinion. Id. (citation and quotation marks omitted). Before the Supreme Court the [p]laintiff argue[d] that his common law negligence claim [wa]s not an adequate remedy at state law because the doctrine of governmental immunity prevails against it. Consequently, he assert[ed] that per this Court s decision in Corum v. University of North Carolina, 330 N.C. 761, 413 S.E.2d 276, cert. denied, 506 U.S. 985, 121 L. Ed. 2d 431 (1992), he should be allowed to bring claims directly under our State Constitution that will not be susceptible to an immunity defense. Id. at 338, 678 S.E.2d at 354. The Supreme Court noted only one specific allegation made by the plaintiff which mentions a constitutional claim: The constitutional claim for damages is plead [sic] as an alternative remedy, should the court find that sovereign immunity or governmental immunity in any of its various forms exists and, if it does exist, which the plaintiffs deny, then, in that event, plaintiffs have no adequate remedy at law and assert the constitutional violations pursuant to the laws of North Carolina. -39Id. at 340 n.4, 678 S.E.2d at 355 n.4 (quotation marks omitted). No other facts or circumstances were alleged or forecast which could support colorable the conclusion constitutional that claim[]. the plaintiff See id. at had made 334-42, a 678 S.E.2d at 351-57. Nonetheless, the Supreme Court held that plaintiff s law common negligence claim is not an adequate remedy at state law because it is entirely precluded by the application of the doctrine of sovereign immunity. Id. at 342, 678 S.E.2d at 356-57 (quotation marks omitted). explained that the [p]laintiff s remedy cannot be said to be adequate by any realistic measure. Indeed, to be considered adequate in redressing a constitutional wrong, a plaintiff must have at least the opportunity to enter the courthouse doors and present his claim. Under the facts averred by plaintiff here, the doctrine of sovereign immunity precludes such opportunity for his common law negligence claim because the defendant Board of Education s excess liability insurance policy excluded coverage for the negligent acts alleged. Plaintiff s common law cause of action for negligence does not provide an adequate remedy at state law when governmental immunity stands as an absolute bar to such a claim. But as we held in Corum, plaintiff may move forward in the alternative, bringing his colorable claims directly under our State Constitution based on the same facts that formed the basis for his common law negligence claim. Id. at 339-40, 678 S.E.2d at 355 (footnote omitted). The Court -40In Craig, the plaintiff alleged he was sexually assaulted at school. 363 N.C. at 335-36, 678 S.E.2d at 352-53. Here too, the plaintiff s complaint alleges sexual misconduct at school. In Craig, [t]he first [claim] was based on common law negligence. His other claims asserted that the Board deprived him of an education free from harm and psychological abuse, thereby violating three separate provisions of the North Carolina State Constitution: Article I, Section 15 (right to the privilege of education); Article I, Section 19 (no deprivation of a liberty interest or privilege but by the law of the land); and Article IX, Section 1 (schools and means of education shall be encouraged). Id. at 335, 678 S.E.2d at 352. negligence-based claims against Here too, plaintiff brought her school board based upon allegations of negligent hiring, supervision, and retention and negligent infliction of emotional distress. Plaintiff here also brought exact causes of action under the same constitutional provisions as the plaintiff in Craig. three See id. In Craig, the plaintiff s constitutional claims were based on the same facts as the negligence claims without any additional allegations, as was specifically noted in Craig s holding. See id., 363 N.C. at 340, 678 S.E.2d at 355 ( But as we held in Corum, plaintiff may move forward in the alternative, bringing his colorable claims directly under our State Constitution based on the same facts that formed the basis for his common law -41negligence claim. (emphasis added)). makes no factual allegations Here too, plaintiff beyond those made in her negligence-based claims. In Craig, whether the Supreme plaintiff s common Court law addressed negligence the question claim, which of will ultimately be defeated by governmental immunity because of its exclusion from defendant Board of Education s insurance coverage, provides an adequate remedy at state law[;] and the Supreme Court held that it does not and that plaintiff may therefore bring his colorable claims directly under the North Carolina Constitution. Supreme Court thus Id. at 352, 678 S.E.2d at 335. affirm[ed] the trial court s denial The of defendant s motion for summary judgment on plaintiff s direct colorable constitutional claims. 357. Id. at 342, 678 S.E.2d at Accordingly, I believe this Court is required here to also affirm the trial court s denial of defendants motion to dismiss as I am unable to distinguish Craig from this case in any meaningful way. 1. Id. Motion for Summary Judgment Versus 12(b)(6) Motion The only potentially dispositive difference between this case and Craig is that Craig was decided on a motion for summary judgment while here Charlotte-Mecklenburg the trial Board of court ruled Education s upon ( Board ) defendant 12(b)(6) -42motion. See id. A motion to dismiss is determined upon a different standard than a motion for summary judgment. See N.C. Gen. Stat. § 1A-1, Rule 12(b)(6) (stating standard as [f]ailure to state a claim upon which relief can be granted ), 56(c) (2011) (noting that a motion for summary judgment should be granted if interrogatories, the and pleadings, admissions depositions, on file, answers together to with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law ). Considering these different standards, the fact that the Supreme Court found that the allegations in Craig were sufficient to survive defendant s motion for summary judgment necessarily means survive a 12(b)(6) motion. it found such allegations would See Craig, 363 N.C. 334, 678 S.E.2d 351; see also N.C. Gen. Stat. § 1A-1, Rule 12(b)(6), 56(c). After all, if the plaintiff had fail[ed] to state a claim upon which relief [could] be granted then the defendant necessarily would be entitled to a judgment as a matter of law. N.C. Gen. Stat. § 1A-1, Rule 12(b)(6), 56(c). In addition, even though Craig was decided at the summary judgment stage, when the Court may consider factual allegations beyond the pleadings, see N.C. Gen. Stat. § 1A-1, Rule 56(c), the Craig opinion is not based upon any factual allegations of -43this type. See Craig, 363 N.C. 334, 678 S.E.2d 351. The allegations upon which the Supreme Court relied in Craig appear to be solely from the complaint and are substantially the same as in this case. See id. As the Supreme Court determined that the plaintiff s allegations in Craig were adequate to survive summary judgment under Rule 56(c), I believe we must conclude that these same claims based upon such similar facts must also survive defendant Board s Rule 12(b)(6) motion to dismiss. See id.; see also N.C. Gen. Stat. § 1A-1, Rule 12(b)(6), 56(c). 2. Merits of the Plaintiff s Case in Craig The majority s decision seems to rely primarily upon language in Craig which acknowledges that although the plaintiff had brought a colorable constitutional claim[] which was not barred by governmental immunity, the plaintiff in Craig may not ultimately prevail in his claim. S.E.2d at 355-57. Craig, 363 N.C. at 340-42, 678 The majority states, The fundamental problem with the trial court s logic is that the Supreme Court simply declined to consider the substantive viability of the state constitutional claims that the plaintiff attempted to assert pursuant to N.C. Const. art. I, §§ 15 & 19 and N.C. Const. art. IX, § 1, in Craig, explicitly stating that its decision did not predetermine the likelihood that [the] [p]laintiff [would] win other pretrial motions, defeat affirmative defenses, or ultimately succeed on the merits of his case and that its holding simply ensure[d] that an adequate remedy must provide the -44possibility of relief under the circumstances. Id. In other words, the Supreme Court simply held in Craig that the existence of common law claims that were barred by the doctrine of sovereign or governmental immunity did not operate to bar the plaintiff from attempting to assert any constitutional claims that he might have otherwise had against the defendant while expressly declining to address the extent to which his constitutional claims had substantive merit. The majority notes that Craig was not a decision on the merits of the plaintiff s case. Obviously Craig was not a decision on the merits and simply affirmed the denial of defendant s motion for summary judgment. See id. at 342, 678 S.E.2d at 357. Not even plaintiff argues that the absence of governmental immunity means that she will ultimately prevail on the merits of her claim; she claims only that she has a right to proceed with her constitutional claims. The pivotal holding in Craig is that governmental immunity did not bar the plaintiff s claim from proceeding past the summary judgment stage. S.E.2d at 356-57. jurisdiction to See id. at 342, 678 In fact, as the trial court would have no consider a claim barred by governmental immunity, see Meherrin Indian Tribe v. Lewis, 197 N.C. App. 380, 384, 677 S.E.2d 203, 207 (2009) (noting that while it may be unsettled whether sovereign immunity is based upon subject matter or personal jurisdiction, it is a jurisdictional issue), disc. review denied, 363 N.C. 806, 690 S.E.2d 705 (2010), -45Craig s holding that plaintiff may move forward in the alternative, bringing his colorable claims directly under our State Constitution based on the same facts that formed the basis for his common law negligence claim meant that the trial court did have jurisdiction to adjudicate plaintiff s claims fully. See Craig, 363 N.C. at 340, 678 S.E.2d at 355. I entirely plaintiff s agree with constitutional the claims majority s under analysis N.C. of Constitution Article I, Section 15; Article IX, Section 1; and Article I, Section 19; I simply disagree that this Court is at liberty to make this analysis of the claims based upon Craig. N.C. 334, 678 S.E.2d 351. the plaintiff s judgment, and claim the See id., 363 Craig posed the question of whether should Supreme survive Court a motion answered for this summary question affirmatively without a discussion of the actual merits of the case. See id. As the majority points out, According to well-established North Carolina law, governmental immunity is an immunity from suit rather than a mere defense to liability[.] Craig, 363 N.C. at 338, 678 S.E.2d at 354 (quoting Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S. Ct. 2806, 2815, 86 L. Ed. 2d 411, 425 (1985))[.] As such, if a claim properly barred by immunity is allowed to proceed beyond a motion to dismiss or for summary judgment, a major part of the rationale for immunity has been eliminated. -46See id. at 338, 678 S.E.2d at 354. If a case is allowed to proceed past a motion to dismiss or for summary judgment, a substantial part of the protection provided by governmental immunity has been lost as the governmental entity must incur the costs, both direct financial costs as well as the expenditure of government personnel time and effort, to defend the case, regardless of whether the plaintiff ultimately wins or loses. See id. Based on the strikingly similar facts and the same legal posture as in Craig, we too are asked to determine whether plaintiff s constitutional claims should survive a pre-trial motion; in light of Craig, I would also answer the question affirmatively. 3. See id., 363 N.C. 334, 678 S.E.2d 351. Opportunity to Present Claim Furthermore, the majority determines that plaintiff here, by virtue of bringing her claim before the trial court and this Court had an opportunity to present her claims to the Court and obtain a determination as to whether those claims had any substantive merit without having to overcome any sovereign or governmental immunity bar and thus had an adequate remedy. But the plaintiff in Craig had exactly the same opportunity, and our Supreme Court determined that [p]laintiff s remedy cannot be said to be adequate by any realistic measure. Id. at 340, 678 S.E.2d at 355. The Supreme Court went on to explain that due to -47the inadequate plaintiff s remedy and negligence opportunity claim, the provided plaintiff could by the bring a constitutional claim based on the same facts that formed the basis for his common law negligence claim. Id. Thus, the Supreme Court did not consider the plaintiff s remedy to be adequate nor did it determine that an opportunity was properly provided for the plaintiff to enter the courthouse doors and present his claim. Id. Under the similar facts and procedural posture presented in this case, I do not see how we can claim that plaintiff here had a realistic opportunity to enter the courthouse doors or an adequate remedy. Id. III. Conclusion This Court is bound by precedent of the North Carolina Supreme Court[,] State v. Gillis, 158 N.C. App. 48, 53, 580 S.E.2d 32, 36, disc. review denied, 357 N.C. 508, 587 S.E.2d 887 (2003), and that Court has determined that governmental or sovereign immunity may not serve as a bar to a properly pled negligence claim constitutional which claim, the plaintiff albeit without has also alleging labeled any as facts a in addition to those which support the negligence claim or make the constitutional claim colorable; for this reason, I believe we are bound to affirm the trial court s order denying defendant Board s motion to dismiss. See Craig, 363 N.C. 334, 678 S.E.2d -48351. Because I believe that the trial court properly denied defendant Board s motion to dismiss plaintiff s constitutional claims based upon dissent. Craig, I would affirm, and I respectfully