Hicks v. KMD Inv. Solutions, LLC

• Decision Date: 02 March 2021
• Docket Number: No. COA20-71,COA20-71
• Parties: Mattie HICKS and Barbara Sigler, Plaintiffs, v. KMD INVESTMENT SOLUTIONS, LLC, Wendy's Real Estate Solutions, LLC, and North Carolina Department of Transportation, Defendants. KMD Investment Solutions, LLC, Third-Party Plaintiff, v. North Carolina Department of Transportation, Third-Party Defendant.
• Court: North Carolina Court of Appeals

855 S.E.2d 514

Mattie HICKS and Barbara Sigler, Plaintiffs,

v.KMD INVESTMENT SOLUTIONS, LLC, Wendy's Real Estate Solutions, LLC, and North Carolina Department of Transportation, Defendants.

KMD Investment Solutions, LLC, Third-Party Plaintiff,

v.North Carolina Department of Transportation, Third-Party Defendant.

No. COA20-71

Court of Appeals of North Carolina.

Filed March 2, 2021

Sanford Thompson, P.L.L.C., Edenton, by Sanford W. Thompson, IV, and Perry, Perry & Perry, P.A., Durham, by Robert T. Perry and Alexander S. Perry, for plaintiffs-appellees.

Attorney General Joshua H. Stein, by Special Deputy Attorney General Alexander G. Walton, for third-party defendant-appellant.

MURPHY, Judge.

¶ 1 In this negligence case, in the light most favorable to Plaintiffs, there was sufficient circumstantial evidence to show the North Carolina Department of Transportation ("NCDOT") had constructive notice of a defective condition and failed to exercise due diligence to discover and remedy the defective condition, and thus breached its duty to maintain Highway 56 prior to the accident at issue. Accordingly, the trial court did not err by denying NCDOT's motions for directed verdict and judgment notwithstanding the verdict ("JNOV").

BACKGROUND

¶ 2 On the night of 8 January 2014, Barbara Sigler was driving, with Mattie Hicks (collectively "Plaintiffs") as her passenger, on Highway 56, a two-lane highway. The temperature was below freezing and there had been no precipitation that day. As Plaintiffs drove through a curve, another driver, Candice Morgan, approaching in the other lane hit black ice and spun out of control into Plaintiffs, causing them significant injuries.

¶ 3 The lack of precipitation that day prompted responding emergency services to investigate the source of the frozen water. Uphill from the highway, it was discovered the pipes of a nearby well had burst, resulting in water running off the property into a lateral ditch¹ adjacent to a road off Highway 56. One section of the ditch had become filled in with dirt and debris, such that this spot was flat with the surrounding land rather than below the surrounding land. Instead of running freely through this ditch and avoiding the road, the water ran downhill into the ditch, reached the filled in spot, and was pushed out onto the road. This water eventually flowed downhill, as it does, onto Highway 56, where it froze and ultimately formed the black ice that caused the accident in question.

¶ 4 Following the accident, Plaintiffs sued KMD Investment Solutions, LLC ("KMD"), the property owners of the land where the well is located. KMD in turn sued NCDOT as a third-party defendant, after which Plaintiffs joined NCDOT in their primary suit and filed a claim directly against NCDOT. At trial, the following testimony was presented regarding the visibility of the filled lateral ditch and the time it would have taken to fill in:

¶ 5 Plaintiffs presented the testimony of Edward Shane Mitchell, a volunteer fireman who responded to the scene of the accident. His testimony was presented through a videotaped deposition that was to be given "the same consideration and [was] to be judged as to credibility and weight and otherwise considered by [the jury], ... as if the witness were present and gave from the witness stand the same answers as were given by the witness when the deposition was taken." Plaintiffs elicited the following testimony:

[PLAINTIFFS:] Well I think you testified that you observed that there was what you called a flat spot in the ditch that goes along the north side of Highway 56.

[MITCHELL:] Right.

[PLAINTIFFS:] And when you say "flat spot," you mean that the ditch was filled in so it wasn't – it wasn't deep and it didn't have the slopes you would expect?

[MITCHELL:] Right.

[PLAINTIFFS:] And that was something you could observe just by looking at it, right?

[MITCHELL:] Well, that night, yes.

[PLAINTIFFS:] And – and during the day you could see if the ditch didn't have the – the "V" shape and it – it was filled up in the bottom; you could see that, couldn't you?

[MITCHELL:] You – are you referring to as me just riding by there, looking, or –

[PLAINTIFFS:] Well, if you had walked down the shoulder of that road, you could have seen if it wasn't raining that there was – that the ditch was filled in partway, couldn't you?

[MITCHELL:] Someone could. I wouldn't say that I would.

...

[PLAINTIFFS:] Someone who was looking at the condition of that ditch would have been able to see that it was filled in; is that right?

[MITCHELL:] I would suppose so.

¶ 6 Plaintiffs also called Jonathan Tyndall, who worked for NCDOT as County Maintenance Engineer in Franklin County, meaning he was "responsible for all of the maintenance and some construction on all state-maintained roads in that county" at the time of the accident. On direct examination, Plaintiffs elicited the following testimony:

[PLAINTIFFS:] And you testified before that when you went out there, that you believed that the DOT ditch, the lateral ditch, was in your words substandard when you examined it right after this happened, didn't you?

[TYNDALL:] It was at a point where it needed to be noted for maintenance.

¶ 7 Later, Plaintiffs called Vernon Hicks, who was a combat engineer in the Marine Corps and at the time of the accident worked for NCDOT in the Bridge Management Unit. On direct examination, Plaintiffs elicited the following testimony:

[HICKS:] .... And so I looked down the road and walked down the ditchbank, and there's a flat spot in there. I guess it's maybe 50 or 100 feet or something like that down the road from the driveway. And I am trying to figure out how did the water get to this point where the sand was, down the road down there, looking at it from a drainage point of view, you know. Anyway --

[PLAINTIFFS:] Let me ask you this. You said you saw a flat spot in the ditch?

[HICKS:] Yes.

[PLAINTIFFS:] The ditch that is parallel to Highway 56?

[HICKS:] Yes, sir, on the north side of the road.

[PLAINTIFFS:] Now, was the flat spot that you saw in the ditch, was that flat spot clearly visible?

[HICKS:] Yes.

[PLAINTIFFS:] Did you have to be a trained engineer in order to see a flat spot?

[HICKS:] I don't think so, no, sir.

¶ 8 Plaintiffs also called Matt Sams, a civil engineer working for Accident Research Specialists, who testified as an expert in the field of forensic engineering, which "look[s] at the cause, nature, and effect of something that has gone wrong" in the areas of "transportation, roadways, hydrology, stormwater runoff[,] ... buildings, bridges, structures, things of that nature, [and] also water treatment plants and things like that." On direct examination, Plaintiffs elicited the following testimony:

[PLAINTIFFS:] Does this filling up of the ditch take place over a period of time?

[SAMS:] Sure.

[PLAINTIFFS:] Why is that?

[SAMS:] It just -- you know, one clipping, one trip with the mower may not be enough to really, you know, put a significant amount of debris in there. But several trips over the years certainly do. If there is some soil erosion or something like that, that takes time as well.

¶ 9 KMD called Howard Rigsby, an engineer at a forensic engineering firm, to testify as an expert "in the fields of hydrology, drainage engineering, and accident reconstruction." On cross-examination, Plaintiffs elicited the following testimony:

[PLAINTIFFS:] And it takes a while for that to happen, doesn't it?

...

[RIGSBY:] If you're talking about erosion, yes, that takes a while to fill in this kind of ditch.

[PLAINTIFFS:] It takes a lot of grass clippings and a lot of dirt coming off the slopes to fill in a ditch, doesn't it?

[RIGSBY:] Yes.

[PLAINTIFFS:] And that would happen over a long period of time, wouldn't it?

[RIGSBY:] Yes.

[PLAINTIFFS:] And if somebody would look at it, they would know that it was filled in, wouldn't they?

[RIGSBY:] Yes.

...

[PLAINTIFFS:] Mr. Rigsby, in your opinion, for a ditch to completely fill up, like a ditch that has got 45 degree angles and two feet deep like the ditches out here, do you think it would take a period of years for that to fill up through natural erosion?

[RIGSBY:] I would say over a year. I am from the mountains of North Carolina, so they can fill up pretty quick up there. But here in Franklinton, that flat topography, I would think over a year.

¶ 10 After Plaintiffs rested, NCDOT made a motion for directed verdict. The trial court reserved its ruling on the motion for directed verdict and NCDOT renewed its motion at the close of all evidence, which was denied. The jury found only NCDOT liable for negligence. Following entry of judgment, NCDOT made a motion for judgment notwithstanding the verdict, which the trial court denied.

¶ 11 NCDOT appeals the trial court's denial of its motions for directed verdict and judgment notwithstanding the verdict.² Specifically, NCDOT contends Plaintiffs failed to prove each essential element of their negligence claim by failing to adequately prove breach based upon a lack of actual or constructive notice of the dangerous condition. NCDOT challenges no other element of negligence.

ANALYSIS

¶ 12 "On appeal the standard of review for a [judgment notwithstanding the verdict] is the same as that for a directed verdict, that is whether the evidence was sufficient to go to the jury." Tomika Invs., Inc. v. Macedonia True Vine Pentecostal Holiness Church of God, Inc. , 136 N.C. App. 493, 498-99, 524 S.E.2d 591, 595 (2000).

When considering a motion for a directed verdict, a trial court must view the evidence in the light most favorable to the non-moving party, giving that party the benefit of every reasonable inference arising from the evidence. Any conflicts and inconsistencies in the evidence must be resolved in favor of the non-moving party. If there is more than a scintilla of evidence supporting each element of the non-moving party's claim, the motion for a directed verdict should be denied.... Because the trial court's ruling on a motion for a directed verdict addressing

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