Appeals Court Affirms that School Board Was Entitled to Immunity in Spite of Defective Playing Surface

Jul 21, 2017

A North Carolina state appeals court has affirmed a trial court’s ruling that a school board was entitled to statutory immunity in a case in which a basketball referee injured himself, allegedly because of a defective playing surface, and sued a school board.
Central to the ruling was that, at the time of the injury, a basketball club leased the gym and had entered into a validly executed agreement with the school board. By doing so, the board protected its access to statutory immunity, pursuant to N.C. Gen. Stat. § 115C-524(c).
The incident occurred on Sept. 22, 2012. Plaintiff George Henderson was employed to referee a basketball tournament at Hawthorne High School in Mecklenburg County from 9:00 a.m. to 7:00 p.m. TSO, a third-party referee company, contracted with him to referee the game. The tournament was sponsored, organized, and conducted by Carolina Basketball Club (CBC). Defendants Vince Jacobs and Dennis Covington are the owners and/or agents of defendant CBC. The Charlotte-Mecklenburg Board of Education (Board) owns, leases, and/or manages Hawthorne High School, including the gymnasium basketball court. Defendant CBC paid the Board the required facilities fee for use of the basketball court for the tournament.
Prior to the date of the injury, the plaintiff had never refereed at the Hawthorne High School gymnasium. His referee duties included running up and down the sides of the gymnasium basketball court during the game while monitoring the play of the participants. Henderson alleged that while running up and down the sides of the court as he officiated, he stepped onto a warped and uneven area of the court immediately adjacent to the playing area. The plaintiff immediately fell to the floor, at which point he felt severe pain in his left knee. Henderson also alleged that after his fall, other officials informed him that they run around this warped area of the basketball court to avoid tripping over it.
On March 12, 2015, Henderson sued. Subsequently, the Board moved to dismiss, a motion that the trial court granted. On appeal, the plaintiff argued that the Board had waived its right to immunity by not following its own rules and regulations when it entered into the agreement with defendant CBC permitting defendant CBC to use the gymnasium for its basketball tournament. Henderson claimed that the Board “failed to require that defendant CBC have liability insurance, per its rules and regulations,” wrote the court. “We disagree.”
Citing state and case law, the appeals court noted that “local boards of education may adopt rules and regulations under which they may enter into agreements permitting non-school groups to use school real and personal property, except for school buses, for other than school purposes so long as such use is consistent with the proper preservation and care of the public school property. No liability shall attach to any board of education or to any individual board member for personal injury suffered by reason of the use of such school property pursuant to such agreements. N.C. Gen. Stat. § 115C-524(c) (2015).”
The panel of judges continued: “In the instant case, the Board entered into a validly executed agreement with CBC on 21 September 2012, and CBC paid the Board $170.00—the required facilities fee—for the use of the gymnasium basketball court. Further, the plaintiff makes no allegation that CBC was using the facility for a non-permitted use. CBC also agreed to indemnify and hold harmless the Board against claims associated with CBC’s use of the facility. Indeed, there is nothing to support the plaintiff’s claim that the Board “did not procure insurance for the event” and the plaintiff does not allege that the Board failed to comply with the agreement requiring CBC to procure insurance.
“Thus, where the plaintiff’s own complaint makes clear that the Board followed its own rules and regulations when it leased the gymnasium to CBC on the date plaintiff was injured therein, the Board is entitled to statutory immunity pursuant to N.C.G.S. § 115C-524(c).”
George Henderson v. The Charlotte-Mecklenburg Board of Education, Vincent Jacobs (Carolina Basketball Club-CBC (Individually); Dennis Covington Carolina Basketball Club-CBS (Individually); and Carolina Basketball Club, LLC.; Ct. App. N.C.; No. COA16-977, 2017 N.C. App. LEXIS 396; 5/16/17
Attorneys of Record: (for plaintiff-appellant) The Law Office of Java O. Warren, by Java O. Warren. (for defendant-appellees) Campbell Shatley, PLLC, by Christopher Z. Campbell and Chad Ray Donnahoo.


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