In Craig v. New Hanover County Board of Education, the North Carolina Supreme Court ruled that when a plaintiff is barred from proceeding against the government for a "tort" claim due to the government having "immunity", then the plaintiff may seek a remedy under the North Carolina State Constitution.
Generally, governments and their agencies can be protected by the long standing principle of "government or sovereign immunity." Essentially what this notion does is that it prevents one from suing the "king". Immunity may be "waived" by the government "if" they purchase insurance coverage, and immunity is waived only to that extent. For example, you slip and fall in the courthouse because of a spilled glass of water an assistant clerk leaves and you break your leg. Unless the county has purchased insurance, your claim can be barred by immunity. Therefore, often, many counties do not even purchase any insurance to cover these types of claims.
Also, generally, in order to bring a claim for a violation of your North Carolina State Constitutional rights, you must have no other option under the law to bring a claim. Essentially meaning that if there is another theory of recovery you can pursue, such as a claim for "negligence" then you are prohibited from seeking to claim a constitutional violation.
In "Craig", a mentally handicapped student was molested at school, and the student pursued a claim against the local county school board alleging "negligence" and violations of rights protected under our NC State Constitution, including the "right to education" and a violation of the plaintiff's "liberty deprivation."
Many of the School Districts in North Carolina participate or pay money into the North Carolina School Boards Trust which is sort of like insurance but is not called as such. This "Trust" agreement or policy claims to provide for some coverage, but its "exclusion" section is so extensive most claims are not accepted. Some examples of excluded claims include "negligent supervision" or "sexual molestation" by a teacher.
At the first intermediate appellate levell at our Court of Appeals, the Court ruled that the plaintiff in "Craig" could "not" sue the school board for violating his state constitutional rights because he had a claim for "negligence" on the part of the school district (negligent supervision). The NC Court of Appeals essentially said that because in theory the acts were "negligent", and theoretically thestudent can bring the claim against the school board (though b/c of the exclusion of the trust/insurance policy there is no waiver), the the student in theory has an alternative remedy and therefore could not seek to sue the school for violating his constitutional rights.
The Supreme Court of North Carolina overruled the decision and stated that because the alternative state remedy (negligence claim) would be barred, there was actually and practically no "remedy", and allowed the student to proceed with his claim for the school boards violation of his constitutional rights.
Ron Trimyer, ron@mastschulz.com
