Fields Ex Rel. Fields v. Durham City Board of Education

DenNy, J. Under the provisions of G.S. 115-27, county and city boards of education are respectively created “a body corporate,” capable of “* * * prosecuting and defending suits for or against the corporation.” This, however, does not mean that the Legislature has waived immunity from liability for torts for such boards. Generally speaking, such an agency may sue or be sued on contracts entered into and d.uly executed by it. Likewise, a county or city board of education may not take private property for public use without paying just compensation therefor. Eller v. Bd. of Education, 242 N.C. 584, 89 S.E. 2d 144. On the other hand, such board, unless it has duly waived immunity from tort liability, as authorized in G.S. 115-53, is not liable in a tort action or proceeding involving a tort except such liability as may be established under our Tort Claims Act. G.S. 143-291 through 143-300.1; Turner v. Bd. of Education, 250 N.C. 456, 109 S.E. 2d 211; Eller v. Bd. of Education, supra; Smith v. Hefner, 235 N.C. 1, 68 *701 S.E. 2d 783; Hansley v. Tilton, 234 N.C. 3, 65 S.E. 2d 300; Benton v. Bd. of Education, 201 N.C. 653, 161 S.E. 96. G.S. 115-53 -provides in part, “Any county or city board of education, by -securing liability insurance as hereinafter provided, is hereby authorized and empowered to waive its governmental -immunity from liability for damage by reason of death or injury to -person or property caused by the negligence or tort -of any agent or employee of such board of education when acting within the scope of his authority or within the course of his employment. Such immunity shall be deemed to have been waived by the act of dbtaining such insurance, but such immunity is waived only to the extent that said board of education is indemnified ¡by insurance for such negligence or -tort * * *. “Except -as hereinbefore expressly provided, nothing in this section shall be construed to deprive any county or city board of education of any defense whatsoever to any such action for damages, or to restrict, limit, or otherwise affect any such defense which said board of education may have -at common law or by virtue of -any statute * * * » It is clear that the Legislature has not -waived immunity from tort liability as to county and city boards of education, except as to such liability as may be established under our Tort Claims Act, but has left .the waiver of immunity from liability for torts to the respective boards and then only to the extent such board -has obtained liability insurance to cover negligence or torts. Therefore, in the absence -of an allegation -in the complaint in a tort action against a city board of education, to the effect that such board has waived its immunity by the procurement of liability insurance to cover such alleged negligence or tort, or that such board has waived its immunity as authorized in G.S. 115-53, such complaint does not state a cause of -action. There being no such allegation in the plaintiff’s complaint herein, the ruling of the court below in sustaining the defendant’s demurrer will be upheld. Affirmed.