Lucas v. Rockingham Cty. Schools

2. The issues to be determined from this hearing are as follows:

a. Was plaintiff injured by the negligence of the defendant;

b. Whether plaintiff was contributorily negligent; and,

c. What amount is plaintiff entitled to recover from the defendant as damages.

2. On September 24, 1999, plaintiff was injured while being transported on a Rockingham County School bus as the vehicle traveled over a dip in the roadway on or near Narrow Gauge Road.

3. During the bus trip, Mason King, a minor and fellow student of plaintiff, accidentally stuck a pencil in the plaintiff's left eye while either erasing his homework or poking holes in a piece of paper.

4. The school bus was operated by Mark Staples, an employee and agent of the Rockingham County School System, who was acting within the scope and course of his employment for defendant.

5. Mr. Staples received training from Rockingham County School System, in which he was instructed that the bus driver is responsible for the safe transport of the minor students while on the school bus, and that no child shall be allowed to use pencil or pen while being transported on the Rockingham County School bus.

6. On the afternoon of September 24, 1999, Mr. Staples noted that Mason King, a student on the bus, had a pencil out while riding on the bus. Mr. Staples instructed Mason King to put the pencil away; however, Mr. Staples failed to further supervise Mason King or insure that the pencil had been secured prior to the continued operation of the school bus.

7. After instructing Mason King to put the pencil away, Mr. Staples continued the bus on its normal route on Narrow Gauge Road. On that roadway is a dip in the road for which Mr. Staples must slow down to keep proper control of the bus and to prevent his passengers from being thrown about the bus. As Mr. Staples drove the bus over the dip in the road, he heard plaintiff scream. Mr. Staples stopped the school bus and determined that plaintiff had been stuck in the left eye with a pencil. Mr. Staples immediately contacted plaintiff's mother to inform her of the incident. Thereafter, plaintiff was taken to the hospital for medical treatment.

8. The Full Commission finds that Mr. Staples failed to supervise Mason King, a student who was in Mr. Staples' care.

9. The Full Commission also finds that Mr. Staples failed to enforce the safety policy regarding the use of pencils and pens by students on the school bus.

10. Plaintiff received medical care and treatment for his injury as outlined in the stipulated medical records.

11. Plaintiff still has blurred vision in his left eye as a result of the accident, and continues to be treated for the injury.

12. Plaintiff incurred medical bills as follows:

a. Sterling Emergency Physicians (09/24/99): $165.00

b. Annie Penn Hospital (09/24/99): $124.74

c. Wake Forest Medical Center (09/24/99-09/25/99): $4,304.28

d. Wake Forest Physicians (09/24/99-06/20/03): $4,118.00

e. Wake Forest Medical Center (01/14/00): $75.50

f. Wake Forest Medical Center (04/07/00-04/20/00): $1,139.71

Total Medicals: $9,927.23 =========

13. There is insufficient evidence of record upon which to find the amount of future medical costs that plaintiff is entitled to recover.

2. Under the Tort Claims Acts, negligence is determined by the same rules applicable to private parties. Bolkir v. N.C. State Univ.,321 N.C. 706, 709 (1998). Plaintiff must show: (1) that defendant owed plaintiff a duty of care under the circumstances; (2) that the actions or omissions by at least one of the named employees of defendant constituted a breach of that duty; (3) that the breach was the actual and proximate cause of plaintiff's injury; and (4) that plaintiff suffered damages.Davidson v. University of North Carolina at Chapel Hill, 142 N.C. 544,543 S.E.2d 920 (2001).

3. In the present case, Mr. Staples (defendant's agent) had a duty of care to properly enforce the safety policies of the school bus while operating the vehicle, and to exercise proper supervision of the minors in his care. Defendant's agent breached his duty of care to plaintiff by not properly enforcing the safety policy regarding the use of pencils and pens by students on the school bus, and by failing to properly supervise Mason King, a minor also in Mr. Staples' care. This breach of duty proximately caused plaintiff to suffer injury to his left eye, which required medical treatment and will require future medical care. Plaintiff has shown that the damages he sustained were the proximate result of a negligent act of defendant. N.C. Gen. Stat. § 143-291.

4. As a result of defendant's breach of the above-mentioned duty, defendant is liable to plaintiff for the damages he sustained as a consequence of such breach. N.C. Gen. Stat. § 143-291.

5. The evidence of record fails to establish that plaintiff was contributorily negligent. N.C. Gen. Stat. § 143-291 et seq.

2. Defendants shall pay costs.

This 16^th day of March 2005.

S/_____________ THOMAS J. BOLCH COMMISSIONER

CONCURRING:

S/______________________ LAURA KRANIFELD MAVRETIC COMMISSIONER

DISSENTING:

S/_______________ DIANNE C. SELLERS COMMISSIONER

I must respectfully dissent from the decision of the Full Commission affirming the decision of the deputy commissioner by finding that plaintiff has met his burden of proving negligence on the part of the school bus driver.

The Tort Claims Act requires strict construction. NorthwesternDistribution, Inc. v. N.C. Dept. of Transportation, 41 N.C. App. 548,255 S.E.2d 203, cert. denied, 298 N.C. 567, 261 S.E.2d 123 (1979). Negligence is determined by the same rules applicable to private parties. Bolkir v. N.C. State University, 321 N.C. 706, 709, 365 S.E.2d 898,900 (1988). A claimant seeking to recover for negligence in a civil claim is required to prove the existence of a duty; a breach of that duty by the defendant or named employees in the case of a tort claim against the state and an injury sustained which occurred as a proximate result of the breach of duty. Pulley v. Rex Hospital, 326 N.C. 701, 392 S.E.2d 380 (1990). Plaintiff has failed to prove by a preponderance of the evidence that Mr. Staples, the school bus driver was negligent.

In the instant case the instrument of injury was a pencil wielded by a fellow student, Mason King, and was not under the exclusive control of defendant. Plaintiff initially claimed that it was the negligent driving of Mr. Staples that caused the bus to jostle the child who then lost control of the pencil. According to the testimony, Mr. Staples was driving below the speed limit when he slowed to account for a known dip in the road that he was unable to avoid. Plaintiff presented no evidence that Mr. Staples failed to use reasonable care in his driving of the school bus as a reasonable and prudent person. The evidence shows that Mr. Staples exercised extra caution in driving the school bus on that particular section of the road.

The second aspect of this case is plaintiff's allegation that Mr. Staples' negligent supervision allowed the pencil to remain in the student's hand and resulted in plaintiff's eye injury.

Mr. Staples had warned the children on his bus that all writing utensils were to be put away in their bags while riding the bus prior to the day this incident occurred. Mr. Staples warned Mason King to put his pencil away on the day of the incident. Plaintiff and Mason were sitting 6 rows behind the bus driver. Mason was in the seat next to the window, while plaintiff was on the aisle. There were 15 children present at the time of the incident. Mr. Staples did all that the reasonably prudent person would do under these circumstances, in that he told the child to put away his pencil and expected that child to follow his direction. It is unreasonable to state that Mr. Staples is required to be aware of all traffic conditions while simultaneously watching 15 children. Even teachers, who are entrusted with the care for minor children during school hours are not expected to have their eyes upon all children at all times. James. v. Charlotte-Mecklenburg Board of Education,60 N.C. App. 642, 300 S.E.2d 21 (1983).

While elementary school children are capable of harming one another, they are also capable of following rules. The rule was established that the children were not allowed to have writing utensils while riding the school bus. The driver had informed the children of the rule and the day of the accident he had asked Mason to put away his pencil. The fact that Mason failed to put away his pencil does not equate to negligence on the part of Mr. Staples. Further, plaintiff did not state that Mason was a particularly disobedient child for whom it would have been reasonably foreseeable that he would disobey the order by Mr. Staples to put away the pencil. The majority is asking that a school bus driver who is charged with supervision of the children in his care in addition to driving the bus safely be required to take a more active role in the supervision of the children. No evidence was presented that Mr. Staples could have feasibly done anything further to prevent the injury. The majority is placing an increased standard beyond that of the reasonably prudent person upon the school bus driver.

Plaintiff has failed to prove that the bus driver was negligent in his driving or in his supervision of the minor children in his care. For the foregoing reasons I respectfully dissent from the decision of the majority to affirm the deputy commissioner.

This the 29^th day of April 2005.

S/_______________ DIANNE C. SELLERS COMMISSIONER