Holloway v. N.C. Dept. of Crime Control & Public Safety/N.C. Highway Patrol

• Decision Date: 19 May 2009
• Docket Number: No. COA08-802.,COA08-802.
• Citation: 676 S.E.2d 573
• Court: North Carolina Court of Appeals
• Parties: Charles Roger HOLLOWAY, Executor of the Estate of Lois Raper Holloway, Deceased, Plaintiff, v. N.C. DEPARTMENT OF CRIME CONTROL & PUBLIC SAFETY/ N.C. HIGHWAY PATROL, Defendant. Dennis Edgar Boring and Judith Boring Bodnar, Co-Administrators of the Estate of Blanche Raper Boring, Deceased, and Judith Boring Bodnar, Individually, Plaintiffs, v. N.C. Department of Crime Control & Public Safety/ N.C. Highway Patrol, Defendant.

676 S.E.2d 573

Charles Roger HOLLOWAY, Executor of the Estate of Lois Raper Holloway, Deceased, Plaintiff, v. N.C. DEPARTMENT OF CRIME CONTROL & PUBLIC SAFETY/ N.C. HIGHWAY PATROL, Defendant.

Dennis Edgar Boring and Judith Boring Bodnar, Co-Administrators of the Estate of Blanche Raper Boring, Deceased, and Judith Boring Bodnar, Individually, Plaintiffs, v. N.C. Department of Crime Control & Public Safety/ N.C. Highway Patrol, Defendant.

No. COA08-802.

Court of Appeals of North Carolina.

May 19, 2009.

Appeal by plaintiffs from an opinion and award of the Full Commission of the North Carolina Industrial Commission entered 8 May 2008 by Commissioner Buck Lattimore. Heard in the Court of Appeals 10 December 2008.

Cahoon & Swisher, North, Cooke & Landreth, by A. Wayland Cooke and H. Davis North, III, Greensboro, for plaintiffs-appellants.

Roberts & Stevens, P.A., by Wyatt S. Stevens and Ann-Patton Nelson, Asheville; and Attorney General Roy A. Cooper, III, by Assistant Attorney General Donna Wojcik, for defendant-appellee.

JACKSON, Judge.

Charles Holloway, Dennis Boring, and Judith Bodnar (collectively, "plaintiffs") appeal from a decision and order of the Full Commission of the North Carolina Industrial Commission ("Full Commission") denying plaintiffs' negligence claim against the North Carolina Department of Crime Control and Public Safety, Division of State Highway Patrol ("defendant"). For the reasons set forth below, we affirm.

On 17 July 2003, at approximately 3:00 p.m., Trooper Kenneth Hyde ("Trooper Hyde") was driving westbound on U.S. 19/74¹ when he observed a black BMW speeding eastbound at seventy-six miles per hour in a fifty-five mile per hour zone. Trooper Hyde activated his emergency lights and siren and turned across the grass median to initiate a traffic stop in the eastbound lane.

In an effort to evade Trooper Hyde, the black BMW crossed over the grass median to head west. Trooper Hyde followed by crossing the grass median to pursue the westbound BMW. Trooper Hyde alerted Cherokee County Deputy Mashburn ("Deputy Mashburn"), who was stationary just ahead. As the BMW approached Deputy Mashburn, the BMW crossed the median once more — now heading eastbound. Trooper Hyde and Deputy Mashburn gave chase across the median again. Trooper Hyde then notified the State Highway Patrol center in Asheville of the pursuit.

The State Highway Patrol center sent out an alert about the chase. Trooper Jeremy Ledford ("Trooper Ledford") was located at the Peachtree patrol station and responded to the alert. Trooper Hal Robertson ("Trooper Robertson") was off-duty, but joined Trooper Ledford in Ledford's patrol car, a loaned, "spare" patrol vehicle — a retired 1999 Crown Victoria with approximately 89,000 miles on it. Trooper Ledford immediately activated his siren and blue lights, and he proceeded toward the chase in "emergency response" mode.

Trooper Ledford testified that the traffic conditions were "very light," and the weather was clear on U.S. 19/74 on 17 July 2003. He was unsure how fast he traveled along U.S. 19/74 in order to respond to the chase, but testified that it is possible that he drove in excess of 100 miles per hour. However, he estimated that he did not travel "much over a hundred." The posted speed limit on U.S. 19/74 is fifty-five miles per hour.

During the pursuit, Trooper Ledford passed two vehicles and then crested a hill. From the crest of the hill, the road continues straight ahead, but slopes downhill. Approximately 900 feet from the crest of the hill, a road leading to a landfill intersects with eastbound U.S. 19/74 on the right. As Trooper Ledford started down the hill, he passed a white Honda and then saw two vehicles in front of him occupying both of the eastbound lanes of travel. Trooper Ledford eased off of his accelerator to slow down and to allow the vehicles in front of him to see him and move over.

As Trooper Ledford continued down the hill, he noticed a white Chevrolet Lumina on westbound U.S. 19/74. Blanche Boring ("Boring") was driving the Lumina and was accompanied by her sister, Lois Holloway ("Holloway") (collectively, "decedents"). Boring pulled into the median crossover as if she intended to turn into the landfill road across from the eastbound lanes of U.S. 19/74. This section of U.S. 19/74 — the median crossover and landfill road intersection — is not regulated by traffic lights or signs. Trooper Ledford observed the Lumina come to a complete stop in the crossover, and he assumed that Boring could see him and the other vehicles approaching the median crossover and landfill road intersection. The two vehicles in front of Trooper Ledford passed the median crossover and landfill road intersection, and then Boring pulled out in front of Trooper Ledford. Trooper Ledford took a hard, evasive turn to the right in an attempt to avoid a collision. Boring continued forward, however, and Trooper Ledford collided with the Lumina, killing decedents.

On 12 February 2004, plaintiffs filed claims against defendant for damages pursuant to the North Carolina Tort Claims Act. On 29 and 30 May 2007, Deputy Commissioner Glenn heard the consolidated claims. On 13 August 2007, Deputy Commissioner Glenn filed amended decisions and orders concluding that Trooper Ledford was grossly negligent and awarding damages to plaintiffs. Defendant appealed Deputy Commissioner Glenn's decisions and orders to the Full Commission. On 12 February 2008, the Full Commission heard the matter, and by opinion and award filed 8 May 2008, the Full Commission reversed Deputy Commissioner Glenn's decisions and orders. Plaintiffs appeal.

Our review of decisions and orders from the Full Commission "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." Simmons v. N.C. Dept. of Transportation, 128 N.C.App. 402, 405-06 496 S.E.2d 790, 793 (1998) (citing Bailey v. Dept. of Mental Health, 272 N.C. 680, 684, 159 S.E.2d 28, 31 (1968)). Pursuant to the North Carolina Tort Claims Act, "the findings of fact of the Commission shall be conclusive if there is any competent evidence to support them." N.C. Gen.Stat. § 143-293 (2007) (emphasis added). "This is so even if there is evidence which would support findings to the contrary." Simmons, 128 N.C.App. at 405, 496 S.E.2d at 793 (citing Bailey v. Dept. of Mental Health, 272 N.C. 680, 683-84, 159 S.E.2d 28, 30-31 (1968)). We review the Full Commission's conclusions of law de novo. Gratz v. Hill, 189 N.C.App. 489, 492, 658 S.E.2d 523, 525 (2008) (citing Griggs v. Eastern Omni Constructors, 158 N.C.App. 480, 483, 581 S.E.2d 138, 141 (2003)).

Initially, we address plaintiffs' argument that the Full Commission's finding of fact number 14 is not supported by competent evidence. We disagree.

The Full Commission's finding of fact number 14 provides that

Trooper Souther adamantly disagreed with plaintiff's accident reconstruction expert, John Flanagan, that Trooper Ledford should have considered swerving left instead. Troopers are trained never to steer left into oncoming traffic, never go left of the double yellow lines, and to never go left when you're going to be meeting a vehicle head on. If Trooper Ledford had swerved left, Mrs. Boring could have stopped in her lane of travel and Trooper Ledford would likely have collided with the rear portion of her car. If Mrs. Boring continued on, Trooper Ledford would have swerved into the grassy median and straight into the oncoming lanes of westbound traffic on U.S. 19/74 where it would have been highly possible that Trooper Ledford would have had a head-on collision with oncoming traffic. As a result, Trooper Souther concluded that swerving right was Trooper Ledford's only option. The undersigned give greater weight to the testimony of Trooper Souther than to Mr. Flanagan.

Plaintiffs contend that their accident reconstruction expert, John F. Flanagan ("Flanagan"), never stated that Trooper Ledford should have swerved into oncoming traffic. Contrary to plaintiff's characterization of the Full Commission's finding, the Full Commission did not find that Flanagan suggested Trooper Ledford should have swerved into oncoming traffic. Instead, the Full Commission found that Flanagan suggested "that Trooper Ledford should have considered swerving left instead." Flanagan testified that if Trooper Ledford had swerved to the left instead of to the right, and if everything else had remained the same, Trooper Ledford would have avoided the collision.

However, Trooper Dan Souther ("Trooper Souther") testified that he "totally disagree[d] with this thinking." He explained that, "[b]eing a trooper and being trained by the [Highway] [P]atrol, I've heard over and over and over again you never steer left into oncoming traffic, never go left of the double yellow lines, never go left where you're going to be in — meeting a vehicle head on. ..." Trooper Souther further testified that if Trooper Ledford had gone left, and Boring had stopped her forward motion, Trooper Ledford would have "hit her all the same." If Trooper Ledford had gone left, and Boring had continued her forward motion, he might have avoided the collision, but he would not have been able to avoid going onto and across the grass median into traffic on the westbound lanes. Therefore, Trooper Souther stated that "going right was [Trooper Ledford's] only option." Accordingly, we hold the Full Commission's finding of fact number 14 is supported by competent evidence. See Simmons, 128 N.C.App. at 405-06, 496 S.E.2d at 793.

Next, we address plaintiffs' argument that the Full Commission erred in making findings of fact numbered 7, 16, and 18 and conclusion of law number 2.

The Full Commission found as follows:

7. As the two vehicles in front of Trooper Ledford cleared the intersection with the landfill entrance where the Lumina...