## Facts

- A six-year-old child attended a voluntary after-school enrichment program operated and controlled by a local board of education at a public elementary school.
- The program ran weekday afternoons and provided recreation, snacks, homework time, tutoring, and hands-on learning activities.
- The child’s parent paid an enrollment fee of $35 per week.
- While supervised by two program staff members, the child allegedly suffered a head injury during program activities.
- Program staff allegedly failed to inform the parent of the injury; later the child developed symptoms at home, and treatment was allegedly delayed.
- The parent alleged negligent supervision and failure to notify, claiming the delay contributed to permanent brain and vision impairment.
- The board asserted it had not purchased liability insurance covering the first $1,000,000 of exposure and claimed governmental immunity at least up to that amount.

## Issues

1. Whether the board of education’s operation of a voluntary, fee-based after-school enrichment program was a governmental function entitling the board to governmental immunity.
2. Whether governmental immunity was waived, and if so, to what extent, based on the board’s liability insurance coverage.
3. Whether the program staff members were sued in their individual capacities, official capacities, or both.
4. Whether the staff members were public officials (with immunity absent malice/corruption) or public employees (potentially personally liable for negligence).

## Decision

- The appellate court held the after-school enrichment program was a traditional governmental function related to public education.
- The board retained governmental immunity for claims below $1,000,000 because it had no applicable insurance coverage for that layer of risk.
- The trial court erred by denying partial summary judgment to the board for claims under $1,000,000.
- Although the complaint did not expressly label capacity, the record showed an intent to sue the staff members in their individual capacities.
- The staff members were public employees, not public officials, and could be personally liable for negligent acts in performing their duties.
- The court directed partial summary judgment for the staff members on official-capacity claims under $1,000,000 (matching the board’s immunity), but allowed individual-capacity negligence claims against them to proceed.

## Legal Principles

- A board of education is generally immune from tort liability for acts undertaken in governmental functions; immunity does not apply to proprietary functions.
- Governmental immunity is waived only to the extent a governmental entity purchases liability insurance covering the claim.
- When capacity is not expressly pleaded (particularly in older pleadings), a court may determine individual vs. official capacity from the allegations and the course of proceedings.
- Official-capacity claims against government employees are treated as claims against the governmental entity and share the entity’s immunity limits.
- Rank-and-file school program staff who perform operational, supervisory duties are public employees and may be personally liable for negligence in their individual capacities.

## Conclusion

The court classified a school board’s fee-based after-school enrichment program as a governmental function and held the board (and staff in their official capacities) immune for claims under the uninsured $1,000,000 layer, while permitting negligence claims to continue against the staff members in their individual capacities as public employees.


Schmidt v. Breeden, 134 N.C. App. 248 (N.C. Ct. App. 1999)