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When It’s Elementary: School Duties to Guard Children From Harm

The ancient idea of “sovereign immunity” lives on in America, from Olde England, and the idea that “you can't sue the King or Queen.”  The fact that Sovereign immunity even exists in ‘democratic’ America is not always a good thing. If it is allowed, it’s only because it is severely restricted, as a qualified Charlotte personal injury attorney will prove in the following case. The injury to an elementary school, 9-year-old was purportedly immune from any negligence suits, by a personal injury attorney, based on the idea that school systems enjoy this “sovereign immunity.”

II. Unanswered assault?

The 9-year-old girl had already been having special challenges in attending school. Even before she was made it to get school, her mother had made complaints that several boys had assaulted her on board a Lewisville elementary school bus. In response to these complaints, the personal injury attorney later proved, the response was not close to being “adequate”. Instead, the principal of the Lewisville elementary only chose to reroute the little girl to a different bus stop. Because she had to walk further to reach the East 5th route, there was the real possibility that this school decision led to her later injury. The little girl was struck by a car while she was crossing East 5th to get to the bus at the new route. As result, her personal injury attorney described the wide range of serious and painful injuries, which happened to the little girl: permanent and severe brain damage.

III.   Holding Schools Accountable For Bad Choices

As mentioned earlier, American law often is very restrictive in applying sovereign immunity. In this case, however, the trial court allowed the various claims by the personal injury attorney on behalf of the little girl and the little girl's mother. The negligence attorney representing the school appealed the decision.

One of the big obstacles a Charlotte personal injury attorney deals with, in terms of overcoming any lawsuit against a state office or official, is what the duty or standard of care exists under state power. This has to do with whether or not the duty is ministerial or requires some discretion. In this case, the trial court had agreed with the injury attorney that three separate grounds for presuming waiver of sovereign immunity existed.

First, under general negligence theory, the school principal had failed to exercise appropriate discretionary decision-making. Second, the injury attorney pointed to breach of fiduciary duties…this means breaking “trust.” In doing so, the personal injury attorney pointed to constructive fraud in changing the location of the little girl’s bus stop. Third, the attorney looked at the actual business practices involved in the case itself. Because there was an issue about discretion, by having the school bus route changed arbitrarily, it involved a third-party process. This fact issue seemed to be the best route to have sovereign immunity waived. The core of this argument by the personal injury attorney was of the way the school acted as or with a private business relationship. Did this kind of non-government process take this decision from the realm of strict government action?

Insurance was to be the key to winning or losing. The attorney was successful at the trial court level. Unfortunately, the appeals judges disagreed, and took an extremely strict view of when sovereign immunity would be waived by a school district.

It is important to note, however, that the injury attorney was successful in getting the case as far as he did. Additionally, two appeals judges merely agreed with the outcome of the case, as opposed to agreeing with the thinking process by which the Court of Appeals reached its decision. This presents the definite possibility that a slightly different case against a school district, brought by an experienced personal injury attorney, could find the school liable.


A majority of the court had fairly quickly disposed of the negligence claims by the personal injury attorney in this case. They felt that sovereign immunity defense did routinely cover general negligence theory. On the other hand, the court was much more restrained in its analysis of liability insurance policies. This was at the same time a decision that each separate insurance policy had to be evaluated on its own merits. For example, the personal injury attorney was distinguished between the commercial insurance policy and separate endorsements, such as whether or not bodily injured was covered. If the court had found that the private insurance or umbrella policies had provided coverage, this might well have been a waiver of the school’s sovereign immunity. However, the court determined the insurance companies had reached an agreement with the school board that their policies did not cover this type of particular accident. This raises an interesting possibility that a school district accused of wrongdoing may be able to avoid some measure of liability by changing its expectations under insurance. This would be an unfortunate outcome for many reasons. It is also why an experienced Charlotte personal injury attorney should be consulted with immediately.

 An experienced personal injury attorney can help ascertain the specific application of insurance and how the school district and private insurers may be conducting their own negotiations or settlements. As you can see, sovereign immunity is not always a straightforward yes or no decision. In this case, a Charlotte personal injury attorney had luck at one court and the school district had good luck at another. This means that sovereign immunity needs to be tackled only by the most experienced of personal injury attorneys.

If you, a family member or a loved one have been hurt in an accident related to administrative decisions or school official actions, improper equipment use, or injured in the process of using school services, please contact us.  You will speak with a Charlotte personal injury attorney / lawyer who can best answer your questions.  There is never a fee for this initial consultation.

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