Background
In 1992 and 1993, when Plaintiff John Doe was approximately fourteen years old, Robert Fulton—a social studies teacher and homeroom supervisor at John F. Kennedy Middle School in Winston-Salem—sexually assaulted him four times. Despite those assaults, the Winston-Salem/Forsyth County Board of Education continued to employ Fulton and transferred him to West Forsyth High School the same year Doe enrolled there. Doe alleges the Board breached its duty by failing to properly train, supervise, and intervene when there was “clear and convincing evidence” of Fulton’s inappropriate conduct.
Doe filed suit in December 2021 under the SAFE Child Act, S.L. 2019-245, § 4.2(b), which created a two-year revival window (January 1 to December 31, 2020, extended by COVID tolling) for civil actions for child sexual abuse that had otherwise run under N.C. Gen. Stat. § 1-52. The Board moved to dismiss on three grounds: (1) governmental immunity because no applicable insurance covered the claims; (2) the ten-year statute of repose in N.C. Gen. Stat. § 1-52(16) forever barred the claims; and (3) Doe’s state constitutional claim was not colorable. The trial court denied the motion. The Board appealed.
The Court’s Holding
The Court of Appeals affirmed the denial of the motion to dismiss on governmental immunity and the statute-of-repose grounds. It dismissed the appeal on the constitutional claim for lack of jurisdiction.
Governmental immunity—affirmed (denial upheld). A local school board waives governmental immunity only to the extent it carries liability insurance that actually covers the claim. N.C. Gen. Stat. § 115C-42. The Board submitted affidavits showing (a) a 1991–1992 policy that excluded “abuse or molestation,” and (b) a 2021–2022 policy that likewise excluded sexual misconduct. However, the Board presented no evidence—one way or the other—about whether it carried any insurance in 1993, the year Doe also alleges he was assaulted. Because the Board did not controvert Doe’s allegation of applicable insurance coverage for 1993, and because Doe cannot yet access discovery to develop that point, the trial court properly declined to dismiss on governmental immunity grounds.
Statute of repose under § 1-52(16)—affirmed (denial upheld). The Board argued the ten-year repose period in § 1-52(16)—which runs from “the last act or omission of the defendant giving rise to the cause of action—” permanently extinguished Doe’s claims no later than 2003, before the SAFE Child Act could revive them. The court rejected that argument, holding that § 1-52(16)’s repose provision applies only to latent injuries—injuries not apparent or reasonably apparent to the plaintiff at the time they occurred. Sexual assault is not a latent injury. This holding draws on Wilder v. Amatex Corp., 314 N.C. 550 (1985), Boudreau v. Baughman, 322 N.C. 331 (1988), and this Court’s lead opinion in McKinney v. Goins, 290 N.C. App. 403 (2023), affirmed as modified, 387 N.C. 35 (2025). The court also addressed and rejected the Board’s argument that the footnote in McKinney on this point was dicta, concluding it was a holding necessary to the decision and therefore binding.
Constitutional claim—dismissed for lack of jurisdiction. The Board sought pendent appellate jurisdiction over the constitutional claim, arguing the issues were “inextricably intertwined.” The court declined: North Carolina does not recognize pendent appellate jurisdiction, and the constitutional claim could proceed to final judgment independently of the tort claims regardless of the outcome of this appeal.
Key Takeaways
- The ten-year repose provision in N.C. Gen. Stat. § 1-52(16) applies only to latent injuries; it does not bar claims based on sexual assault, which is an injury apparent when it occurs. The SAFE Child Act’s Revival Window therefore reaches those claims.
- A school board’s governmental immunity defense fails at the motion-to-dismiss stage if it cannot show—by affidavit or other evidence—the absence of applicable liability insurance for every year in which the alleged abuse occurred; an unexplained gap in the evidentiary record as to any alleged year of abuse leaves the plaintiff’s allegation of insurance coverage uncontroverted.
- The McKinney footnote limiting § 1-52(16)’s repose period to latent injuries is a binding holding, not dicta, because the NC Court of Appeals determined it was necessary to that court’s decision, and the Supreme Court’s affirmance did not disturb it.
- Per the newly decided Byrd v. Avco Corp., 389 N.C. 32 (2026), the denial of a statute-of-repose defense is now immediately appealable as a substantial right—a change from prior law under Lee v. Baxter.
Why It Matters
Doe v. Fulton is significant for plaintiffs’ counsel bringing SAFE Child Act revival claims against North Carolina school boards. It confirms that neither the ten-year repose period in § 1-52(16) nor the absence of then-current insurance automatically bars a claimant at the pleading stage. For § 1-52(16), defendants must actually demonstrate the injury was latent—sexual abuse cases almost by definition involve non-latent injuries. On governmental immunity, defendants must build a complete evidentiary record covering every year of alleged abuse; a partial record leaves open the very gap that defeats dismissal.
For defense counsel, the case signals that the right strategy at the motion-to-dismiss stage is comprehensive insurance discovery and affidavit practice covering the full alleged abuse period, not just the years for which policies are most readily located. The companion holding from Byrd v. Avco Corp.—making statute-of-repose denials immediately appealable—also expands the interlocutory-appeal toolkit in cases where repose is a viable defense.