Guilford mother wants NC Appeals Court to revive COVID vaccine suit involving son
A Guilford County mother urges the N.C. Court of Appeals to allow her to proceed with her lawsuit against the Guilford school board and Old North State Medical Society. The suit contends her teenage son was forced to take the COVID-19 vaccine in 2021.
A trial judge dismissed Emily Happel’s suit in March. Lawyers for Happel and son Tanner Smith filed a brief Friday with the state’s second-highest court.
In August 2021, Smith was a 14-year-old football player at Western Guilford High School. “Tanner was informed by letter on Guilford County Schools letterhead that there was a cluster of COVID-19 cases among the football team, and because of this cluster he would need to report for a COVID-19 test to continue participating as a player on the Western Guilford High School football team,” according to Happel’s brief. “The letter informed Tanner that he would be tested on August 20, 2021, that the testing would take place from 2:00 p.m. to 6:00 p.m. at Northwest Guilford High, and that Old North State Medical Society ‘will be conducting testing, consent for testing is required.’”
Smith’s stepfather drove him to the testing site. The stepfather stayed in the car as Smith entered the testing site.
Neither the Happels nor Smith knew a free COVID-19 vaccination clinic was taking place at the same time and place as the COVID-19 testing. A flyer promoting the vaccination clinic said, “Students age 12-17 must have their parent or guardian sign the consent form and bring the completed form to the vaccination site.”
While Smith was waiting, clinic workers tried without success to reach Emily Happel. They never contacted stepfather Brett Happel, who was waiting outside, according to the brief.
“After the workers failed to contact Mrs. Happel, one of the workers instructed the other worker to ‘give it to him anyway,’” Happel’s lawyer wrote. “Tanner then indicated to the workers that he did not want to receive the vaccine, and that he was just expecting to be tested for COVID-19. Despite failing to get parental consent or the consent of Tanner himself, the workers administered a COVID-19 dose to Tanner.”
Happel lodged state constitutional claims against the Guilford school board and the medical society.
“In the complaint, plaintiffs alleged that Emily Happel had a liberty interest under NC Const. Art. I, §§ 1, 13, and 19 ‘to raise her son and to have control over his care and custody, and to do so in accordance with her conscience,’” according to the brief. “The complaint further alleged that her liberty interest could only be deprived but by the law of the land.”
“At the time of the vaccine dose, the law of the land of North Carolina required parental consent: ‘Notwithstanding any other provision of law to the contrary, 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.’ The complaint further alleged that Guilford County Schools was a state actor, and that parental consent was not received by defendants prior to the administration of the vaccine to Tanner.”
The suit also cited Smith’s “liberty interest under the North Carolina Constitution to his own bodily autonomy.” The 14-year-old also alleged a claim of battery.
Happel rebutted the claim that Guilford schools and the medical society could avoid liability for clinic workers’ actions. “The clinic workers were present at the vaccine clinic to carry on and further the business of the partnership that had been formed by defendants,” according to the brief. “They were there to administer vaccines. The scope of their employment was to administer vaccines. When they administered the vaccine to Tanner, they were doing so in furtherance of their employer’s business and within the scope of their employment. That they did so without consent does not move them outside the scope of their employment.”
Nor can the school system argue that the clinic represented a third-party use of school facilities, Happel argued.
“In this case, Tanner Smith was directed by letter from Guilford County Schools to report for COVID-19 testing to continue his participation in a school activity — playing football for his school,” according to the brief. “This is not a situation where the school facility was simply being used by a third-party with little-to-no oversight by the school system. In fact, the vaccine clinic was held by ‘Old North State Medical Society in partnership with Guilford County Schools.’
“While one may doubt the wisdom of conducting a testing clinic and a vaccine clinic in the same location, no one can doubt that it was the collective wisdom of both defendants,” the brief continued. “The facts as stated in the complaint make it clear that Tanner went to the clinic at the direction of Guilford County Schools, and when he ended up in a vaccine clinic, it was a clinic that was operated with two partners — the defendants.”
Happel rejected the trial judge’s ruling that Old North State Medical Society was free from liability because it not a “state actor” or “acting under color of state law.”
“[T]he idea that vaccine administration – -paid for by governmental actors, promoted by governmental actors, and provided as part of a push by federal, state, and local governments — is totally divorced from government action ignores the facts that are plain from every American’s experience during the COVID-19 crisis,” according to the brief.
The Guilford school board and Old North State Medical Society will have a chance to respond with their own brief in the case, titled Happel v. Guilford County Board of Education.