Withers v. Charlotte-Mecklenburg Board of Education

231 S.E.2d 276 (1977) 32 N.C. App. 230

Roosevelt WITHERS, Jr.
v.
CHARLOTTE-MECKLENBURG BOARD OF EDUCATION.

No. 7626IC619.

Court of Appeals of North Carolina.

January 19, 1977.

Mraz, Aycock, Casstevens & Davis by Frank B. Aycock, III and L. Hunter Meacham, Jr., Charlotte, for plaintiff-appellant.

Atty. Gen. Rufus L. Edmisten by Sandra M. King, Associate Atty., Raleigh, for defendant-appellee.

BRITT, Judge.

Plaintiff assigns as error the commission's conclusion that it lacked jurisdiction over this action and the dismissal of his claim. The assignment is without merit.

This action is controlled by G.S. 143-300.1 which, at the time of the accident, provided in pertinent part that:

"The North Carolina Industrial Commission shall have jurisdiction to hear and determine tort claims against any county board of education or any city board of education, which claims arise as a result of any alleged negligent act or omission of the driver of a public school bus or school transportation service vehicle. . . and which driver was at the time of such alleged negligent act or omission operating a public school bus or school transportation service vehicle in the course of his employment by such administrative unit or such board.. . ." (Emphasis added.)

The commission concluded that the school bus driver "was not operating a public school bus in the course of her employment" at the time of the accident causing the damages suffered by plaintiff, therefore, it lacked jurisdiction under the statute.

Plaintiff contends that operating a school bus "includes directing or instructing another to drive or operate the vehicle." He asserts that the school bus driver was "constructively" operating the vehicle when she allowed the 15-year-old boy to start the bus and drive it to her home. We find this argument unpersuasive.

The applicable statute is in derogation of sovereign immunity, therefore, it must be strictly construed and its terms must be strictly adhered to. Etheridge v. Graham, 14 N.C.App. 551, 188 S.E.2d 551 (1972); Teer Co. v. Highway Commission, 265 N.C. 1, 143 S.E.2d 247 (1965). We fail to perceive how defendant's employee can be considered to have been operating the school bus when she did not have physical control of the vehicle or the ability to direct its operation. The 15-year-old boy was alone in the bus and, in fact, was returning from a personal errand when the accident occurred. Allowing a 15-year-old boy to drive a school bus may well constitute a negligent act, but, for defendant to be held liable, the negligent act or omission must occur while the salaried employee is operating the school bus in the course of her employment.

There is competent evidence to support the commission's finding that the salaried school bus driver was not operating the vehicle in the course of her employment at the time of the collision, consequently, the findings are conclusive on appeal. G.S. 143-293; Mitchell v. Board of Education, 1 N.C.App. 373, 161 S.E.2d 645 (1968). The order concluding that the commission lacked jurisdiction over the claim is therefore

Affirmed.

BROCK, C. J., and MORRIS, J., concur.