NC Appeals Court Decision in Happel Case
NC Appeals Court Decision in Happel Case
No. COA23-487
v.
November 2023.
Rossabi Law Partners, by Gavin J. Reardon and Amiel J. Rossabi, for Old
North State Medical Society, Inc., Defendants-Appellees.
WOOD, Judge.
Tanner Smith (“Tanner”) and his mother, Emily Happel (“Emily”) (collectively,
the “Plaintiffs”) appeal the trial court’s dismissal of their claims against the Guilford
County Board of Education (the “Board”) and Old North State Medical Society, Inc.
(“ONS Medical Society”) (collectively, the “Defendants”) based on, among other
things, statutory immunity under the federal Public Readiness and Emergency
HAPPEL V. GUILFORD CNTY. BD. OF EDUC.
Preparedness Act (“PREP Act”). After careful review of the relevant statutes and
On 14 August 2021, Tanner was fourteen years old and a football player at
Western Guilford High School, a school within the Guilford County Schools system.
By letter dated 19 August 2021, Guilford County Schools informed Emily and Brett
Happel (“Brett”), Tanner’s stepfather, that Tanner may have been affected by a
“recent COVID-19 cluster” involving football team members at his school, and that
the Guilford County Public Health Department recommended and requested COVID-
letter stated that unless parents allowed their children to be tested, Guilford County
Schools would not allow players “to return to practice until cleared by a public health
professional.” The letter further stated that COVID-19 testing would be available on
20 August 2021 at no cost at Northwest Guilford High School. The letter indicated
ONS Medical Society would conduct the testing and “consent for testing is required.”
Guilford High School. Brett remained inside his vehicle while Tanner went into the
testing facility, which was also a COVID-19 vaccination site. Inside, clinic workers
gave Tanner a form to fill out, which he believed to be something related to the
COVID-19 test. Tanner was seated in the facility while a clinic worker tried
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him. The workers did not attempt to contact Brett. After failing to make contact
with Tanner’s mother, one of the workers instructed the other worker to “give it to
him anyway.” Tanner stated he did not want a vaccine and was only expecting a test,
action: (1) battery; (2) violations of Emily’s constitutional liberty and parental rights
and of Tanner’s bodily autonomy rights under N.C. Const. art. I, §§ 1, 13, and 19; and
2022, the Board filed its answer, a motion to dismiss pursuant to Rules 12(b)(1) and
(6), and a cross-claim against ONS Medical Society. On 30 December 2022, ONS
Medical Society filed its answer and a motion to dismiss pursuant to Rules 12(b)(1)
and (6).
The trial court held a hearing on 30 January 2023 and filed its written order
2023, Plaintiffs filed timely written notice of appeal pursuant to N.C. Gen. Stat. § 7A-
27(b) (2022).
II. Analysis
Plaintiffs argue the trial court erred in determining that the PREP Act, which
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case and provides immunity to both Defendants. Due to the sweeping breadth of the
federal liability immunity provision in the PREP Act, we are constrained to disagree.
Volunteer Fire Dep’t, Inc. v. Town of Weddington, 382 N.C. 199, 209, 876 S.E.2d 453,
460 (2022).
Our state law requires that “a health care provider shall obtain written consent
from a parent or legal guardian prior to administering any vaccine that has been
granted emergency use authorization and is not yet fully approved by the United
States Food and Drug Administration to an individual under 18 years of age.” N.C.
Enacted 30 December 2005, the PREP Act provides that when the Secretary of
Health and Human Services (the “Secretary”) “makes a determination that a disease
emergency, or that there is a credible risk that the disease, condition, or threat may
in the future constitute such an emergency,” the Secretary may make a “declaration”
Additionally, the Secretary may declare that the provisions of subsection (a) apply “to
immunity:
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As for the scope of liability immunity, the PREP Act defines loss in the
following manner:
For purposes of this section, the term “loss” means any type
of loss, including—
(i) death;
(ii) physical, mental, or emotional injury, illness,
disability, or condition;
(iii) fear of physical, mental, or emotional injury,
illness, disability, or condition, including any need
for medical monitoring; and
(iv) loss of or damage to property, including business
interruption loss.
42 U.S.C. § 247d-6d(a)(2)(A) (emphasis added). The PREP Act defines the scope of
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from suit and liability of covered persons set forth in subsection (a) shall be for an
exclusive Federal cause of action against a covered person for death or serious
6d. The PREP Act defines covered person, “when used with respect to the
Finally, the PREP Act contains a broad provision preempting state law, which
states:
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42 U.S.C. § 247d-6d(b)(8).
countermeasures, defined as “any antiviral, any other drug, any biologic, any
diagnostic, any other device, or any vaccine, used to treat, diagnose, cure, prevent, or
...
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Here, the trial court took “judicial notice of the fact that the required
declaration by the U.S. Department of Health and Human Services was in place for
the Pfizer COVID-19 vaccine at the time of the vaccination at issue in this case.”
Plaintiffs do not dispute that the Pfizer COVID-19 vaccine was a covered
countermeasure.
As for whether Defendants are covered persons under the PREP Act, we hold
countermeasure. ONS Medical Society is a community group that did just that.
Regarding the Board, Plaintiffs argue “[i]t is unclear under what theory the Board
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was a covered person under the trial court’s reasoning.” According to Plaintiff, the
partnership with ONS [Medical Society] in operating and providing the locations for
the vaccine clinics.” The Board contends Plaintiffs’ argument essentially accepts the
trial court’s determination that the Board is a covered person, and therefore, it did
“not respond further on this point.” This Court, however, must determine whether
the Board meets the criteria of “a covered person” as defined under the PREP Act.
person under the PREP Act includes a “state or local government . . . [that] provides
at 15,199. We hold this language includes the Board, which provided a facility—
Finally, we must determine whether the scope of immunity covers the potential
liability at issue in this case. We hold that it does because, as the trial court noted,
the immunity provided by the Act is extremely broad. The PREP Act provides
immunity “with respect to all claims for loss caused by, arising out of, relating to, or
Specifically, the scope of immunity applies to “any claim for loss that has a causal
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language of the PREP Act includes claims of battery and violations of state
constitutional rights within the scope of its immunity, and it therefore shields
Plaintiffs argue that the PREP Act does not cover their claims because they do
not arise because of COVID-19, but merely happen to relate to COVID-19. We would
be inclined to agree if the PREP Act did not define the scope of immunity so broadly.
Because there does not appear to be any Fourth Circuit or North Carolina federal
district cases on point, ONS Medical Society draws our attention to three out-of-state
cases.
First, in Parker v. St. Lawrence Cnty. Pub. Health Dep’t, a pre-COVID-19 case,
the defendant health department held a vaccination clinic due to the outbreak of the
H1N1 influenza virus, and a nurse employed by the health department administered
the plaintiff parent. 102 A.D.3d 140, 141, 954 N.Y.S.2d 259, 260–61 (2012). The
plaintiff-parent alleged both negligence and battery. The court in Parker held,
. Congress intended to preempt all state law tort claims arising from the
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defendant's failure to obtain consent.” Id. at 143–44, 954 N.Y.S.2d at 262. Therefore,
the court dismissed the plaintiff’s complaint. Id. at 144–45, 954 N.Y.S.2d at 263.
Second, in Cowen v. Walgreen Co., the plaintiff alleged that she visited a
Walgreens store for a flu vaccination but that a Walgreens employee administered a
JFJ, 2022 WL 17640208, at *2 (N.D. Okla. Dec. 13, 2022) (N.D. Okla. Dec. 13, 2022).
As here, the plaintiff in Cowen argued “that her claims should be construed . . .
broadly because her injury could have happened whether she received a COVID-19
vaccine or any other vaccine.” Id. The court in Cowen noted that “[i]n the PREP Act,
Congress plainly provided immunity under both federal and state law with respect
‘to all claims for loss caused by, arising out of, relating to, or resulting from the
held, “While it is true that other vaccinations or procedures might have also been
administered, this does not change the fact that Plaintiff's injuries actually resulted
from administration of the COVID-19 vaccine. The PREP Act therefore applies.” Id.
Finally, in M.T. v. Walmart Stores, Inc., the plaintiff mother sued defendant
Walmart after one of its pharmacists administered a COVID-19 vaccine to her minor
child without her consent. 63 Kan. App. 2d 401, 402, 528 P.3d 1067, 1070 (2023).
The court in M.T. noted that the scope of immunity under the PREP Act “is broad
and applies to ‘any claim for loss that has a causal relationship with the
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528 P.3d at 1073. (Quoting 42 U.S.C. § 247d-6d(a)(2)(B)). The court held that the
our holding that the broad scope of immunity provided by the PREP Act applies to
both Defendants in this case. Although Plaintiffs’ claims could arise no matter what
type of vaccine Tanner was given without parental consent, the PREP Act provides
immunity to Defendants because it shields them from “any claim for loss that has a
247d-6d(a)(2)(B).
We note our General Assembly amended N.C. Gen. Stat. § 90-21.5 in 2021 to
add subsection (a1), which requires parental consent before a vaccine granted
the egregious conduct alleged in the case before us, and to safeguard the
constitutional rights at issue—Emily’s parental right to the care and control of her
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child, and Tanner’s right to individual liberty. See N.C. Const. art. I, §§ 1, 19; Petersen
v. Rogers, 337 N.C. 397, 400–01, 445 S.E.2d 901, 903 (1994). Notwithstanding, the
statute remains explicitly subject to “any other provision of law to the contrary” under
the broad provision preempting state law in the PREP Act. 42 U.S.C. § 247d-6d(b)(8).
The PREP Act provides only one exception for a “Federal cause of action against a
covered person for death or serious physical injury proximately caused by willful
misconduct.” 42 U.S.C. § 247d-6d(d)(1). Because Plaintiffs have not made any such
allegations in their complaint, we are constrained to conclude the PREP Act preempts
III. Conclusion
“We are not to question the wisdom or policy of the statute under consideration,
conflict with the organic law.” Faison v. Bd. of Comm'rs of Duplin Cnty., 171 N.C.
411, 415 88 S.E. 761, 763 (1916). Bound by the broad scope of immunity provided by
the PREP Act, we are constrained to hold it shields Defendants, under the facts of
this case, from Plaintiffs’ claims relating to the administration of the COVID-19
AFFIRMED.
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