Drewry v. NORTH CAROLINA DEPT. OF TRANSP.

• Decision Date: 01 February 2005
• Docket Number: No. COA03-1390.,COA03-1390.
• Citation: 168 NC App. 332,607 S.E.2d 342
• Parties: James DREWRY, Administrator of the Estate of Roger McKinley Drewry, Deceased, Plaintiff, v. NORTH CAROLINA DEPARTMENT OF TRANSPORTATION, Defendant.
• Court: North Carolina Court of Appeals

607 S.E.2d 342

168 NC App. 332

James DREWRY, Administrator of the Estate of Roger McKinley Drewry, Deceased, Plaintiff, v. NORTH CAROLINA DEPARTMENT OF TRANSPORTATION, Defendant.

No. COA03-1390.

Court of Appeals of North Carolina.

February 1, 2005.

Attorney General Roy Cooper, by Special Deputy Attorney General Robert T. Hargett, for the State.

Reid, Lewis, Deese, Nance & Person, by James R. Nance, Jr., Fayetteville, for plaintiff-appellant. BRYANT, Judge.

James Drewry¹ (plaintiff) appeals from an opinion and award of the Full Commission (Commission) filed 30 July 2003 dismissing plaintiff's negligence action against the North Carolina Department of Transportation (NCDOT) and two of its employees.

This case was heard before a Deputy Commissioner on 14 October 2002. Defendant's motion to dismiss at the close of plaintiff's evidence was granted and an order was filed on 1 November 2002. Upon appeal, the Commission made the following findings to which the plaintiff assigns no error²:

1. On April 15, 1996, at approximately 9:15 p.m., one to two inches of water was standing in a 90-100 foot long pond on North Carolina Highway 217, (N.C.217), 0.8 miles south of Linden in Cumberland County. The weather records from nearby monitoring stations show that it had rained heavily, up to two inches that day. The evidence shows that silt from an adjacent field, which had been recently disced for farming, had washed out of the field and clogged a drainage ditch that ran parallel to the roadway. This caused water to flow across the roadway instead of down the ditch to a highway drainpipe under the roadway and created the aforementioned pond.

2. On April 15, 1996, the decedent, Roger Drewry, was driving his 1995 Pontiac Trans Am V-8 Convertible. Plaintiff-decedent left home and with a passenger, Lee Morgan, and drove to Fayetteville, North Carolina. After shopping, plaintiff-decedent and Mr. Morgan returned to Linden. After leaving U.S. 401[N]orth, plaintiff-decedent and Mr. Morgan proceeded down N.C. 217 [N]orth towards Linden at 50 to 55 miles per hour. Plaintiff-decedent ran into the standing water, lost control of his car, left the roadway and overturned. Plaintiff-decedent and Mr. Morgan were thrown from the vehicle and pinned underneath it. Mr. Morgan freed himself; however, even with the help of two others who stopped to assist, he could not free plaintiff-decedent. Plaintiff-decedent died at the scene of the accident. Trooper Minchew with the Highway Patrol investigated the accident and testified that standing water and driver's speed were contributing causes to the accident.

3. On July 3, 1995, Mr. Denning contacted the [NCDOT] concerning standing water problems on N.C. 217 at the scene of the subsequent accident. Thomas Burchell, a DOT Transportation Supervisor III in charge of roadway maintenance for that area responded. Mr. Burchell investigated the complaint and determined the ditch had silted in and following [NCDOT] practice determined that the ditch needed to be cleared and a berm built. On July 3, 1995, while investigating Mr. Denning's complaint Mr. Burchell took a video of the area. Mr. Burchell later showed the video to his supervisor Hugh Matthews who concurred with Mr. Burchell's remedial recommendations.

4. Records reflect that Mr. Burchell's crew members as of August 21, 1995 had completed the remedial work. Mr. Burchell periodically checked the area to see if the action which had been taken to correct the problem had its desired effect. Mr. Burchell believed that it did and [NCDOT] received no further complaints of drainage problems in that area until after plaintiff-decedent's accident on April 15, 1996. While plaintiff presented witnesses who testified that they encountered standing water on N.C. 217, no one notified [NCDOT] of the problems they encountered.

5. Plaintiff contends that the reason water was standing on the roadway was that a twenty-four inch drainage pipe located approximately one hundred feet down from the silted-over ditch was inadequate to handle the amount of water from the rainfall which occurred on the date of the accident. Plaintiff's hydrology expert, James A. Spangler, II, testified that the drainage area into the ditch and pipe located adjacent to and under N.C. 217 was thirty-one acres plus or minus and included cultivated land. Mr. Spangler testified that [NCDOT] regulations indicate in some instances that oversized piping can or should be used in order to allow for obstructions. However, the twenty-four inch pipe was some distance from the silted area of the ditch which caused the flooding. Further, Mr. Spangler testified that the twenty-four inch pipe, had it been unobstructed, was adequate to handle the flow of water which fell on April 15, 1996 ³.

6. Robert Godwin, the fire chief of Linden, responded to the emergency call for [the] accident. Mr. Godwin spoke with the passenger Lee Morgan at the scene of the accident. Mr. Morgan stated to Mr. Godwin that he (Morgan) had come through the same area of N.C. 217 about twenty minutes before the accident occurred. Mr. Godwin further testified that whenever he noticed water hazards in the roadway he would contact the Cumberland County Emergency Operations Center, but he never directly contacted DOT.

...

9. [NCDOT] had no prior notice of N.C. 217 being flooded on April 15, 1996 prior to the accident that killed plaintiff-decedent.

The Commission also found as fact the following, to which plaintiff did assign error:

7. Plaintiff-decedent and Mr. Morgan had passed through the flooded area in question approximately twenty minutes prior to the time of the accident in question here and were aware that the road was flooded prior to the accident.

8. Plaintiff has failed to offer any evidence as to what relevant [NCDOT] regulations and standards require as to design and maintenance of roads such as N.C. 217 including the design and control of water flow.

...

10. In this situation, the problem was not the drainage pipe but the area where the water ran out of the field into the ditch. Plaintiff presented no testimony that the water after running out of the field was backed up from the point of entering the ditch down to the location of the pipe running under the roadway, but that the water ran directly out of the field into the roadway. Plaintiff presented no testimony that the water was ponded at the location of the pipe under the roadway. Plaintiff presented no testimony as to whether the ditch was properly designed or negligently designed or maintained. Plaintiff only presented testimony that water was in the roadway. Plaintiff offered no standard to compare and determine whether there was negligence on the part of defendant in maintaining N.C. 217.

Based on these findings, the Commission concluded that plaintiff: (1) failed to prove his case by the greater weight of the evidence with respect to the standard of care or duty owed by NCDOT or their employees to either plaintiff-decedent or the public; and (2) failed to prove his case by the greater weight of the evidence that NCDOT's actions were the proximate or the contributing cause of the accident or injuries to plaintiff-decedent. Further, the Commission concluded that plaintiff-decedent was contributorily negligent by having driven in the same location twenty minutes prior to the accident and failing to take driving precautions of a reasonable person given the known road and weather conditions. Plaintiff appeals from the opinion of the Commission.

The dispositive issue for our review is whether the Commission erred in findings of fact # 8 and # 10, respectively, that there was no evidence of a standard of care required by NCDOT for design and maintenance, nor evidence that the water was backed up from the area of the pipe, due to water having entered the roadway from the field.

Plaintiff first argues the Commission erred in findings of fact # 8 and # 10 that there was no evidence of a standard of care required by NCDOT for design and maintenance of water flow vis-a-vis public roads such as N.C. Highway 217. In a related assignment of error, plaintiff argues the Commission erred in findings of fact # 10 that there was no evidence in the record that the water was backed up from the area of the pipe, due to the water having entered the roadway from the field. In these two assignments of error, plaintiff is essentially arguing that NCDOT's failure to install a 42-inch drainage pipe proximately caused Drewry's accident. We disagree.

The [NCDOT] is subject to a suit to recover damages for death caused by its negligence only as is provided in the Tort Claims Act. Davis v. Highway Commission, 271 N.C. 405, 408, 156 S.E.2d 685, 687 (1967). The Tort Claims Act states in part, "the Industrial Commission shall determine whether or not each individual claim arose as a result of the negligence of any officer, employee ... under circumstances where the State of North Carolina, if a private person, would be liable to the claimant in accordance with the laws of North Carolina." N.C. Gen.Stat. § 143-291(a) (2003).

Our Court has previously ruled on the standard of review for tort claims from the Commission. "Under the Tort Claims Act, `when considering an appeal from the Commission, our Court is limited to two questions: (1) whether competent evidence exists to support the Commission's findings of fact, and (2) whether the Commission's findings of fact justify its conclusions of law and decision.'" Smith v. N.C. Dep't of Transp., 156 N.C.App. 92, 97, 576 S.E.2d 345, 349 (2003) (quoting Fennell v. N.C. Dep't of Crime Control & Pub. Safety, 145 N.C.App. 584, 589, 551 S.E.2d 486, 490 (2001)); see N.C.G.S. § 143-293 (2003). Our Supreme Court has explained the role of appellate courts in cases appealed from the North Carolina Industrial Commission holding, an appellate court "does not have the right to weigh the evidence and decide the issue on the basis of its weight. The court's duty...