Fields v. Durham City Board of Education

111 S.E.2d 910 (1960)

251 N.C. 699

Paulette FIELDS, by her next friend, Odell Fields, v. DURHAM CITY BOARD OF EDUCATION.

No. 669.

Supreme Court of North Carolina.

January 14, 1960.

*911 Daniel K. Edwards, Durham, for plaintiff.

Spears, Spears & Powe and Alexander H. Barnes, Durham, for defendant.

DENNY, Justice.

Under the provisions of G.S. § 115-27, county and city boards of education are respectively created "a body corporate," capable of "* * * prosecuting and defending suits for or against the corporation." This, however, does not mean that the Legislature has waived immunity from liability for torts for such boards.

Generally speaking, such an agency may sue or be sued on contracts entered into and duly executed by it. Likewise, a county or city board of education may not take private property for public use without paying just compensation therefor. Eller v. Board of Education, 242 N.C. 584, 89 S.E.2d 144.

On the other hand, such board, unless it has duly waived immunity from tort liability, as authorized in G.S. § 115-53, is not liable in a tort action or proceeding involving a tort except such liability as may be established under our Tort Claims Act. G.S. §§ 143-291 through 143-300.1; Turner v. Gastonia City Board of Education, 250 N.C. 456, 109 S.E.2d 211; Eller v. Board *912 of Education, supra; Smith v. Hefner, 235 N.C. 1, 68 S.E.2d 783; Hansley v. Tilton, 234 N.C. 3, 65 S.E.2d 300; Benton v. Board of Education, 201 N.C. 653, 161 S.E. 96.

G.S. § 115-53 provides in part, "Any county or city board of education, by securing liability insurance as hereinafter provided, is hereby authorized and empowered to waive its governmental immunity from liability for damage by reason of death or injury to person or property caused by the negligence or tort of any agent or employee of such board of education when acting within the scope of his authority or within the course of his employment. Such immunity shall be deemed to have been waived by the act of obtaining such insurance, but such immunity is waived only to the extent that said board of education is indemnified by insurance for such negligence or tort * * *.

"Except as hereinbefore expressly provided, nothing in this section shall be construed to deprive any county or city board of education of any defense whatsoever to any such action for damages, or to restrict, limit, or otherwise affect any such defense which said board of education may have at common law or by virtue of any statute * * *."

It is clear that the Legislature has not waived immunity from tort liability as to county and city boards of education, except as to such liability as may be established under our Tort Claims Act, but has left the waiver of immunity from liability for torts to the respective boards, and then only to the extent such board has obtained liability insurance to cover negligence or torts.

Therefore, in the absence of an allegation in the complaint in a tort action against a city board of education, to the effect that such board has waived its immunity by the procurement of liability insurance to cover such alleged negligence or tort, or that such board has waived its immunity as authorized in G.S. § 115-53, such complaint does not state a cause of action. There being no such allegation in the plaintiff's complaint herein, the ruling of the court below in sustaining the defendant's demurrer will be upheld.

Affirmed.