Turner v. N.C. Dep't of Transp., COA11–1514.

• Decision Date: 02 October 2012
• Docket Number: No. COA11–1514.,COA11–1514.
• Citation: 733 S.E.2d 871
• Parties: Bertha TURNER, Administrator for the Estate of Clinton Harmon, Plaintiff, v. NORTH CAROLINA DEPARTMENT OF TRANSPORTATION, Defendant. Karia Hawkins, Administrator for the Estate of Damien S. Hawkins, Plaintiff, v. North Carolina Department of Transportation, Defendant.
• Court: North Carolina Court of Appeals

733 S.E.2d 871

Bertha TURNER, Administrator for the Estate of Clinton Harmon, Plaintiff,

v.NORTH CAROLINA DEPARTMENT OF TRANSPORTATION, Defendant.

Karia Hawkins, Administrator for the Estate of Damien S. Hawkins, Plaintiff,

v.North Carolina Department of Transportation, Defendant.

No. COA11–1514.

Court of Appeals of North Carolina.

Oct. 2, 2012.

Appeal by plaintiffs from Opinions and Awards of the Full Commission entered 4 August 2011 by Commissioner Staci T. Meyer of the North Carolina Industrial Commission. Heard in the Court of Appeals 23 May 2012.

Attorney General Roy Cooper, by Assistant Attorney General Melody R. Hairston, for the North Carolina Department of Transportation.

Law Offices of Alvin L. Pittman, by Alvin L. Pittman, for plaintiff-appellants.

BRYANT, Judge.

Where the North Carolina Department of Transportation did not breach its duty to plaintiffs, we affirm the 4 August 2011 Opinions and Awards of the Full Commission denying plaintiffs' claim for benefits under the North Carolina Tort Claims Act.

Facts and Procedural History

Plaintiffs Karia Hawkins, Administrator of the Estate of Damien S. Hawkins, and Bertha Turner, Administrator of the Estate of Clinton Harmon, commenced separate actions against the North Carolina Department of Transportation (“DOT”) by filing affidavits asserting a claim for damages under the Tort Claims Act with the Industrial Commission (“Commission”) on 15 November 2005 and 1 December 2005, respectively. On 10 March 2006, DOT answered both affidavits and included motions to dismiss, affirmative defenses alleging intervening and superseding negligence and contributory negligence, and a counterclaim seeking “contribution and/or indemnification[ ] and set-off” as a result of the alleged negligence of Clinton Harmon (“Harmon”).

On 20 October 2009, DOT filed motions for summary judgment. Plaintiffs responded by filing a motion for summary judgment and, alternatively, a motion for summary adjudication of issues. Deputy Commissioner Stephen T. Gheen denied the parties' cross-motions for summary judgment in an order filed 3 February 2010. The case was heard before Deputy Commissioner George T. Glenn II on 26 October 2010.

On 29 December 2004, at 7:15 p.m., Harmon, Jermaine Whitaker (“Whitaker”), and fourteen-year-old Damien Hawkins (“Hawkins”) were traveling by car to a basketball tournament at Northampton–West High School. Harmon was the driver. Whitaker and Hawkins were passengers. Harmon was talking on his cell phone when he missed the correct turn. Harmon took a left turn onto SR 1422 (Van Warren Road), drove past the end of the road, and onto Thelma Boat Landing—where the road surface changed to gravel. When the car tires hit the gravel, Harmon applied the brakes, but despite this, the car traveled across the Thelma Boat Landing, over a rock barrier, and into Roanoke Rapids Lake (“Lake”). As it sank, Harmon, Whitaker, and Hawkins were each able to exit the vehicle; however, Harmon and Hawkins drowned before they could reach the shore. Whitaker survived.

Deputy Commissioner Glenn filed a Decision and Order in each action on 26 January 2011 awarding $300,000.00 to the Estate of Clinton Harmon and $350,000.00 to the Estate of Damien S. Hawkins. DOT timely filed notices of appeal to the Full Commission (“the Commission”) on 28 January 2011. The case was heard before the Commission on 10 June 2011. On 4 August 2011, Commissioner Staci T. Meyer filed an Opinion and Award for the Commission, reversing the Decision and Order of Deputy Commissioner Glenn as to each action, denying plaintiffs' claims for benefits under the Tort Claims Act. Commissioners Danny Lee McDonald and Christopher Scott concurred. Plaintiffs appeal.

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On appeal, plaintiffs contend that the Commission erred in concluding they failed to prove DOT's negligence. More specifically, the issues plaintiffs raise ¹ can be combined and addressed under the following two issues:whether the Commission erred in finding (I) DOT did not breach its duty to plaintiffs; and (II) plaintiffs failed to prove their injuries were proximately caused by a breach of duty by DOT.

“The [DOT] is subject to a suit to recover damages for death caused by its negligence only as is provided in the Tort Claims Act.” Drewry v. N.C. Dep't of Transp., 168 N.C.App. 332, 336, 607 S.E.2d 342, 346 (2005) (citation omitted). Under the Tort Claims Act,

[t]he Industrial Commission shall determine whether or not each individual claim arose as a result of the negligence of any officer, employee, involuntary servant or agent of the State while acting within the scope of his office, employment, service, agency or authority, 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 (2011). The standard of review for an appeal from a decision of the Commission under the Tort Claims Act is “for errors of law only under the same terms and conditions as govern appeals in ordinary civil actions, and 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 (2011). Thus, “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.” Simmons v. N.C. Dep't of Transp., 128 N.C.App. 402, 405–06, 496 S.E.2d 790, 793 (1998) (citation omitted). We “[do] not have the right to weigh the evidence and decide the issue on the basis of its weight. [Our] duty goes no further than to determine whether the record contains any evidence tending to support the finding.” Drewry, 168 N.C.App. at 337, 607 S.E.2d at 346 (citation omitted).

“Under the [Tort Claims] Act, negligence is determined by the same rules as those applicable to private parties.” Bolkhir v. N.C. State Univ., 321 N.C. 706, 709, 365 S.E.2d 898, 900 (1988) (citation omitted). “To establish actionable negligence, plaintiff must show that: (1) defendant failed to exercise due care in the performance of some legal duty owed to plaintiff under the circumstances; and (2) the negligent breach of such duty was the proximate cause of the injury.” Id. (citation omitted). Plaintiffs have the burden of proof. Drewry, 168 N.C.App. at 337, 607 S.E.2d at 346 (citing Griffis v. Lazarovich, 161 N.C.App. 434, 443, 588 S.E.2d 918, 924 (2003) (Negligence is not presumed from the “mere happening of an accident[.]”)).

I

Plaintiffs contend that the Commission erred in finding that DOT did not breach its duty to maintain SR 1422 in a safe condition. In support of their contention, plaintiffs argue that the Commission erred in making certain findings of fact and using those findings of fact to arrive at their conclusions of law. We disagree.

In order to find a breach of duty, there must be a duty owed. The DOT's duty is dictated by the North Carolina General Statutes, which provides that “[t]he general purpose of the [DOT] is to provide for the necessary planning, construction, maintenance, and operation of an integrated statewide transportation system for the economical and safe transportation of people and goods as provided for by law.” N.C. Gen. Stat. § 143B–346 (2011). The DOT does not dispute this duty, as evidenced by its admission that the “[DOT], the Division of Traffic Engineers, and Andy Brown, in his capacity as an employee of the [DOT], had a duty to maintain SR 1422 in a safe condition, including the posting of appropriate signs.” Instead, the DOT denies that it breached this duty. “The [DOT] is vested with broad discretion in carrying out its duties and the discretionary decisions it makes are not subject to judicial review ‘unless their action is so clearly unreasonable as to amount to oppressive and manifest abuse.’ ” Drewry, 168 N.C.App. at 338, 607 S.E.2d at 346–47 (quoting State Highway Comm'n v. Greensboro City Bd. of Education, 265 N.C. 35, 48, 143 S.E.2d 87, 97 (1965)).

Plaintiffs contend that the DOT breached its duty by failing to place warning signs along SR 1422. Specifically, plaintiffs assign error to the Commission's findings of fact 12, 13, 14, 15, 17, 19, 20, 21, 22, and 23. ² We will consider each of the Commission's challenged findings of fact.

Plaintiffs admit that the Commission's findings of fact 12, 13, 14, and 15 accurately reflect witness testimony. Nonetheless, plaintiffs argue that these findings of fact are not supported by competent evidence because the findings ignore that the DOT's duty to maintain the roads in a safe condition, including the posting of appropriate signs, is a trigger for safety studies. We disagree.

Findings of fact 13 and 14 state:

13. The [DOT] is required to follow the Manual on Uniform Traffic Control Devices (MUTCD) and additional policies and procedures in determining where road signage should be placed as required by N.C. Gen. Stat. § 136–30(a). Pursuant to the MUTCD, warning signs are to be out in place only after engineering studies have been conducted. The MUTCD states that warning signs should not be overused, because overuse can cause drivers to disregard them.

14. While the MUTCD and State law do not mandate when and [sic] engineering study should be conducted, the [DOT] follows its policy and procedure and conducts engineering studies as a result of specific triggering events. These triggering events include accident investigations where the facts indicate that road designs, signs, or other factors controlled by DOT may be implicated, patterns of traffic accidents based on the severity as determined by the Highway Safety Improvement Program, individuals' requests including those of law enforcement and those studies initiated by [DOT] when it has reason to believe a study is warranted.

In addition to prescribing the duty of...