Baldwin v. GTE South, Inc.

• Decision Date: 28 January 1994
• Docket Number: No. 220A93,220A93
• Citation: 335 N.C. 544,439 S.E.2d 108
• Court: North Carolina Supreme Court
• Parties: Laura G. BALDWIN v. GTE SOUTH, INCORPORATED.

Page 108

439 S.E.2d 108

335 N.C. 544

Laura G. BALDWIN v. GTE SOUTH, INCORPORATED.

No. 220A93.

Supreme Court of North Carolina.

Jan. 28, 1994.

Faison & Fletcher by O. William Faison and Gary R. Poole, Durham, for defendant-appellee.

WHICHARD, Justice.

On 19 November 1988, at the intersection of Hillsborough Road and Sparger Road in Durham County, Linda Taylor apparently ran a stop sign while driving south on Sparger Road. She collided with a dump truck owned by Earl J. Latta, Inc., which Essell Day was driving west on Hillsborough Road. Day crossed the center line and struck the plaintiff, Laura Baldwin, as she was using a telephone booth located approximately one hundred and seventy-seven feet from the collision site. The booth, which was owned by GTE South (defendant), was approximately twenty-five feet from the edge of Hillsborough Road and was inside the public right-of-way. The right-of-way extended fifty feet from the center line on each side of Hillsborough Road. A North Carolina Department of Transportation (DOT) regulation prohibited the placement of telephone booths within public rights-of-way.

Plaintiff sued Taylor, Day, Latta, GTE Corporation and GTE South. After receiving settlements totaling $450,000.00, plaintiff voluntarily dismissed with prejudice her claims against Taylor, Day and Latta. She also voluntarily dismissed without prejudice her claim against GTE Corporation. Plaintiff and defendant proceeded to trial.

The trial court ruled in limine that the regulation prohibiting the placement of telephone booths within rights-of-way was a safety regulation and that plaintiff was within the protected class of persons. At the close of plaintiff's evidence and at the close of all the evidence, defendant moved for a directed verdict. The trial court denied these motions. The court instructed the jury that violation of the safety regulation in question was negligence per se, but that plaintiff still had the burden of proving that such negligence was a proximate cause of her injuries. The jury awarded plaintiff $482,670.00, from which the amount of plaintiff's previous settlements was subtracted.

On appeal, the Court of Appeals determined that the regulation prohibiting the placement of telephone booths within rights-of-way had safety implications but that plaintiff, as a pedestrian, was not within the class of protected persons. It therefore reversed the trial court's denial of defendant's motion for a directed verdict, 110 N.C.App. 54, 428 S.E.2d 857. Judge Orr dissented. Plaintiff appealed to this Court as a matter of right based on the dissent. N.C.G.S. § 7A-30(2) (1989). We now hold that plaintiff, as a pedestrian, is within the class protected by the regulation, and we accordingly reverse the decision of the Court of Appeals.

Pursuant to the enabling authority of N.C.G.S. § 136-18(2), DOT has power "to locate and acquire rights-of-way for any new roads that may be necessary for a State highway system." N.C.G.S. § 136-18(2) (1993). In addition, it has power

[t]o make proper and reasonable rules, regulations and ordinances for the placing or erection of telephone, telegraph, electric and other lines, above or below ground, signboards, fences, ... pipelines, and other similar obstructions that may, in the opinion of [DOT], contribute to the hazard upon any of the said highways or in any way interfere with the same, and to make reasonable rules and regulations for the proper control thereof.

N.C.G.S. § 136-18(10) (1993). The statute further provides that "[a]ny violation of such rules and regulations ... shall constitute a misdemeanor." Id.

Pursuant to N.C.G.S. § 136-18(10), DOT enacted a regulation controlling the placement of telephone booths within rights-of-way: "Telephone pay-station booths or other commercial telephone installations are not permitted on highway rights-of-way, except in rest areas or truck weigh stations." N.C. Dep't of Transp., Division of Highways, Policies and Procedures for Accommodating Utilities on Highway Rights of Way 69 (1976). Defendant, which was legally obligated to follow the regulation, violated this prohibition when it installed the Hillsborough Road telephone booth within the public right-of-way.

When the violation of an administrative regulation enacted for safety purposes is criminal, as here, that violation is negligence per se in a civil trial unless otherwise provided. Swaney v. Steel Co., 259 N.C. 531, 542, 131 S.E.2d 601, 609 (1963). A safety statute or a safety regulation having the force and effect of a statute creates a specific duty for the protection of others. Ratliff v. Duke Power Co., 268 N.C. 605, 610, 151 S.E.2d 641, 645 (1966) (statute); Drum v. Bisaner, 252 N.C. 305, 309-10, 113 S.E.2d 560, 564 (1960) (regulation). A member of the class intended to be protected by a statute or regulation who suffers harm proximately caused by its violation has a claim against the violator. Hart v. Ivey, 332 N.C. 299, 303, 420 S.E.2d 174, 177 (1992); see Drum, 252 N.C. at 309-10, 113 S.E.2d [335 N.C. 547] at 563-64 (applying negligence per se analysis used for statutes to regulation having the force and effect of a statute).

To determine...