An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                                NO. COA13-616
                       NORTH CAROLINA COURT OF APPEALS

                             Filed: 21 January 2014


JOHN T. BURNS, Administrator of
the Estate of JONATHAN BEEGLE,
Deceased,
     Plaintiff,

      v.                                      North Carolina Industrial
                                              Commission
                                              I.C. File No. TA-22902
UNION COUNTY BOARD OF EDUCATION,
     Defendant.


      Appeal by plaintiff from order entered 8 February 2013 by

the North Carolina Industrial Commission.                Heard in the Court of

Appeals 23 October 2013.


      Tin, Fulton, Walker           &   Owen,    PLLC,    by    Sam     McGee,   for
      plaintiff-appellant.

      Attorney General Roy Cooper, by Assistant Attorney General
      Alesia Balshakova, for defendant-appellee.


      HUNTER, Robert C., Judge.


      Plaintiff John Burns appeals the order issued by the North

Carolina    Industrial      Commission     dismissing      with   prejudice      his

complaint for lack of jurisdiction pursuant to N.C. Gen. Stat. §

143-300.1.       On   appeal,    plaintiff      argues   that     the    Industrial
                                       -2-
Commission    erred    by   granting    defendant’s       motion    to   dismiss.

After   careful     review,   we    agree    and   reverse    the    Industrial

Commission’s order and remand for hearing.

                                   Background

    On 23 April 2010, a few minutes before 6:50 a.m., Jonathan

Beegle (“decedent”), who was seven years old, was waiting for

the Union County school bus to pick him up for school.                   Decedent

was waiting on the east side of Medlin Road in Union County

about six to ten feet from the roadway.                 Medlin Road is a two-

lane highway with a speed limit of 55 miles per hour.                          At

approximately 6:50 a.m., the bus, driven by Henry Collins (“Mr.

Collins”),    was     travelling    southbound     on    Medlin    Road.      Mr.

Collins, with the caution lights flashing, brought the school

bus to a stop on the west side of Medlin Road directly across

from where decedent was standing.             As decedent began to cross

the street, a vehicle driven by a third party, Dwayne Thomas,

was traveling northbound towards the stopped school bus.                   Before

decedent could reach the bus, he was struck by Dwayne Thomas’s

vehicle.     Decedent died later that day as a result of the trauma

suffered in the accident.

    On 8 February 2012, plaintiff filed a Tort Claim Affidavit

pursuant to N.C. Gen. Stat. § 143–300.1 with the Industrial
                                      -3-
Commission.    In the section of the affidavit where a claimant is

required to briefly give a statement of the events that led to

the injury, the affidavit alleged that:

            The   Defendant   Union  County   Board   of
            Education   is  directly   liable  for   the
            negligence of its employees in the designing
            of a bus route that required a 7 year old
            boy to cross a 55mph highway in pre-dawn
            hours in order to board a school bus; and in
            locating a bus stop in a place where there
            could only be improper and insufficient
            warning for oncoming vehicles approaching
            the bus stop; and in failing to properly
            train and/or supervise the bus driver Henry
            C. Collins. The UCBOE is vicariously liable
            for any negligence of Henry C. Collins. As
            a result of this negligence, 7 Year old
            Jonathan Beegle was struck by an oncoming
            van while trying to board his school bus,
            while crossing Medlin Road at approximately
            6:50 A.M.

Plaintiff identified the negligent employees in his affidavit as

Ed Davis, Superintendent of UCBOE; Denise Patterson, Assistant

Superintendent of UCBOE; and other unknown employees responsible

for the safe transportation of students.

    On   12    March    2012,    defendant    filed   a    motion   to   dismiss

pursuant to North Carolina Rules of Civil Procedure 12(b)(1),

12(b)(2),     and      12(b)(6).          Following   a     hearing,      Deputy

Commissioner    J.     Brad     Donovan     entered   an    order   dismissing

plaintiff’s claim due to lack of jurisdiction.                 Plaintiff then

appealed to the Full Commission.              After a hearing in front of
                                          -4-
the Full Commission on 8 February 2013,                   the Full Commission

entered    an   order,    with    one     Commissioner    dissenting,       denying

plaintiff’s      motion     to    amend     his    affidavit    and    dismissing

plaintiff’s complaint for lack of jurisdiction.                      Specifically,

while acknowledging that N.C. Gen. Stat. § 143-297 does not

require strict adherence to formal rules of pleading, the Full

Commission      concluded    it   lacked        jurisdiction   for    two   primary

reasons.     First, it found that N.C. Gen. Stat. § 143-300.1(a)

limits liability of a county school board to negligent acts by

certain employees: maintenance personnel, the school bus driver,

the transportation safety assistant, and the monitor of a public

school bus.      Because plaintiff’s claim did not allege negligence

by any of these specific employees, the Industrial Commission

lacked jurisdiction.        Second, the Full Commission concluded that

the affidavit contained no allegations of an unsafe operation of

the bus due to mechanical reasons or other defects, another

requirement      for   jurisdiction;        instead,     it    was    limited    to

allegations     of negligence by the school in the planning and

design of the bus routes.

    Plaintiff timely appealed to this Court on 4 March 2013.

                                    Argument

    Plaintiff argues that the Industrial Commission erred by
                                          -5-
granting defendant’s motion to dismiss for lack of jurisdiction

because the Industrial Commission was the proper forum to bring

the claim.       We agree.

    “Our review of a motion to dismiss under Rule 12(b)(1) of

the North Carolina Rules of Civil Procedure is de novo.                      Under a

de novo review, the [C]ourt considers the matter anew and freely

substitutes its own judgment for that of the [trial court].”

Peninsula Prop. Owners Ass’n v. Crescent Res., LLC, 171 N.C.

App. 89, 92, 614 S.E.2d 351, 353 (2005) (internal citations and

quotation marks omitted).           “The standard of review of the trial

court’s    decision    to     grant   a    motion     to    dismiss       under   Rule

12(b)(2)    is    whether     the   record      contains    evidence      that    would

support    the      court’s     determination        that     the     exercise      of

jurisdiction over defendants would be inappropriate.”                       Stacy v.

Merrill, 191 N.C. App. 131, 134, 664 S.E.2d 565, 567 (2008).

    This action is governed by N.C. Gen. Stat. § 143-300.1(a)

(2013)    which    states,     in   pertinent      part,    that    the    Industrial

Commission has jurisdiction to adjudicate tort claims against a

county board of education which:

            arise as a result of any alleged mechanical
            defects or other defects which may affect
            the safe operation of a public school bus or
            school    transportation   service   vehicle
            resulting from an alleged negligent act of
            maintenance personnel or as a result of any
                                        -6-
              alleged negligent act or omission of the
              driver, transportation safety assistant, or
              monitor of a public school bus or school
              transportation service vehicle[.]

Procedurally, pursuant to N.C. Gen. Stat. § 143–297 (2013), a

claimant filing an action under N.C. Gen. Stat. § 143-300.1 must

file an affidavit with the Industrial Commission which includes,

among other things, “the name of the State employee upon whose

alleged negligence the claim is based” and “[a] brief statement

of the facts and circumstances surrounding the injury and giving

rise to the claim.”          “Adherence to formal rules of pleading is

not required but the claim [made pursuant to N.C. Gen. Stat. §

143-297] should state facts sufficient to identify the agent or

employee and a brief statement of the negligent act that caused

the injury.”      Turner v. Gastonia City Bd. of Ed., 250 N.C. 456,

460, 109 S.E.2d 211, 214 (1959).

       In the present case, plaintiff filed this claim with both

the    Industrial   Commission     and    in    Superior      Court.        However,

“there cannot be concurrent jurisdiction: if a plaintiff’s claim

against a Board of Education falls within the scope of N.C. Gen.

Stat. § 143–300.1, then N. C. Gen. Stat. § 115C–42 excludes the

claim from the waiver of immunity.”                   Stacy, 191 N.C. App. at

135,    664    S.E.2d   at    567-68.         Thus,    the    issue    is    whether

plaintiff’s       affidavit      demonstrated          that    the      Industrial
                                                   -7-
Commission had jurisdiction over plaintiff’s action pursuant to

N.C. Gen. Stat. § 143-300.1 .

       In interpreting the scope of N.C. Gen. Stat. § 143-300.1,

this    Court,      in    a     dissent      adopted       per    curiam      by    our   Supreme

Court, see Newgent v. Buncombe Bd. Of Ed., 340 N.C. 100, 455

S.E.2d 157 (1995), held that the Legislature did not intend for

N.C.    Gen.       Stat.        §    143-300.1           “to    preclude      the    Industrial

Commission         from    hearing          tort    claims       wherein      certain     alleged

negligent acts or omissions arose out of, and were inseparably

connected to, events occurring at the time a school bus driver

was operating the bus in the course of her employment.”                                   Newgent

v. Buncombe Bd. Of Ed., 114 N.C. App. 407, 409, 442 S.E.2d 158,

159 (1994).          There, the plaintiff alleged that the school bus

driver failed to inform the decedent’s parents and the school

principal      that       she       had    seen    the    decedent       cross     the    road   by

himself prior to the accident and that the driver altered her

route    in    a    way       that        increased       the    risk    of    danger     to     the

decedent.      Id. at 410, 442 S.E.2d at 160.                           Similarly, in Stacy,

191 N.C. App. at 135-36, 664 S.E.2d at 568, this Court concluded

that a plaintiff’s affidavit alleged facts that fell within the

scope of N.C. Gen. Stat. § 143-300.1 by claiming that the driver

was driving too fast and should have stopped the bus when he saw
                                       -8-
children riding bicycles on the road.

      Here, while plaintiff’s affidavit does not contain the same

amount of detail regarding Mr. Collins’s alleged negligence, the

facts averred identify Mr. Collins as one of the employees on

whose behalf defendant may be liable under § 143-300.1(a) in

plaintiff’s    statement    of   the    facts   that    led   to    the   injury.

Moreover,     the   affidavit     suggests      that    Mr.    Collins’s        own

negligence may have resulted in decedent’s death.                  Specifically,

the affidavit states that: “The UCBOE is vicariously liable for

any   negligence    of   Henry   C.    Collins.    As    a    result      of   this

negligence, 7 year old Jonathan Beegle was struck by an oncoming

van while trying to board his school bus[.]”                  While we agree

with defendant that a great deal of the affidavit focuses on

alleged negligence in the         design and planning of school bus

routes,   which     plaintiff    admitted    at   the    hearing      (plaintiff

stated that this case was “largely a negligent design case”),

plaintiff also argued at the hearing on defendant’s motion that

Mr. Collins own negligence may have included his failure to turn

on his flashers 300 feet before the stop, which is a requirement

for school bus drivers.          Therefore, plaintiff’s alleged claims

arose out of and were connected to events at the time of the

accident.     Since our Courts have stated that liberal rules of
                                   -9-
pleading are allowed in this type of action, the affidavit’s

reference to Mr. Collins and his possible negligence along with

plaintiff’s argument at the hearing were sufficient to defeat

defendant’s   motion    to   dismiss.      Thus,     the    record   contained

evidence that would support the Industrial Commission’s exercise

of jurisdiction over the action, and the Industrial Commission

erred in    granting defendant’s motion to dismiss for lack of

jurisdiction.

      While defendant argues on appeal that the motion to dismiss

was also properly granted based on Rule 12(b)(6), an issue which

it raised in its motion to dismiss, the Industrial Commission

did   not   rule   on   this   issue;     instead,     it    only    addressed

defendant’s   motion    to   dismiss    based   on   lack    of   jurisdiction

under Rule 12(b)(1) and (2).           Therefore, we will not consider

this argument on appeal.        See Tohato, Inc. v. Pinewild Mgmt.,

Inc., 128 N.C. App. 386, 390, 496 S.E.2d 800, 803 (1998) (noting

that this Court “will not consider arguments based upon issues

which were not presented or adjudicated by the trial tribunal”).

                                Conclusion

      Based on the foregoing reasons, we reverse the Industrial

Commission’s order dismissing plaintiff’s action and remand for

hearing.
                         -10-



REVERSED AND REMANDED.

Judges CALABRIA and ROBERT N. HUNTER, JR. concur.

Report per Rule 30(e).
