Viar v. NC Department of Transp.

• Decision Date: 03 February 2004
• Docket Number: No. COA03-25.,COA03-25.
• Citation: 162 NC App. 362,590 S.E.2d 909
• Parties: Claude M. VIAR, Jr., Co-administrator of the Estate of Megan Rae Viar, Deceased, and Co-administrator of the Estate of Macey Lauren Viar, Deceased, Plaintiff, v. N.C. DEPARTMENT OF TRANSPORTATION, Defendant.
• Court: North Carolina Court of Appeals

590 S.E.2d 909

162 NC App. 362

Claude M. VIAR, Jr., Co-administrator of the Estate of Megan Rae Viar, Deceased, and Co-administrator of the Estate of Macey Lauren Viar, Deceased, Plaintiff, v. N.C. DEPARTMENT OF TRANSPORTATION, Defendant.

No. COA03-25.

Court of Appeals of North Carolina.

February 3, 2004.

DeVore, Acton, & Stafford, P.A., by Fred W. DeVore, III, Charlotte, for plaintiff-appellants.

Attorney General Roy Cooper, by Special Deputy Attorney General William H. Borden, for defendant-appellee.

LEVINSON, Judge.

On 12 June 1997 Megan and Macey Viar were killed in a motor vehicle accident occurring in Rowan County, North Carolina, on Interstate Highway 85 (I-85). Melissa Viar, the decedents' sister, was driving south on I-85 in a heavy rainstorm when she lost control of her car, hit another southbound vehicle, went across the grass median separating the north and southbound lanes, and collided with a tractor-trailer truck. Her younger sisters died instantly, and Melissa suffered serious injuries.

On 6 March 1998 Claude Viar, father of the decedents and plaintiff herein, filed an affidavit with the Industrial Commission under the North Carolina Tort Claims Act, N.C.G.S. § 143-291 et seq., stating a claim for negligence against the N.C. Department of Transportation (NCDOT). Plaintiff alleged his daughters' deaths were proximately caused by the absence of a guard rail or median barrier between the north and southbound lanes of I-85. Plaintiff's affidavit was later amended to allege negligence on the part of one or more of the following employees of NCDOT: Garland Garrett, Jr., Larry Goode, B.G. Jenkins, Jr., Don Morton, J. Don Goins, Douglas Waters, and Tom Shearin, "or any other state employee who would have been responsible for not placing median barriers in the stretch of I-85 in Rowan County where this accident occurred." Plaintiff's claim was heard before a deputy commissioner of the Industrial Commission in May of 2000, and on 20 November 2000 the deputy commissioner issued an opinion denying plaintiff's claim. Plaintiff appealed to the Full Commission, which reviewed his claim on 17 December 2001. On 20 August 2002 the Industrial Commission issued an opinion and award affirming the decision of the deputy commissioner and denying plaintiff's claim. The Commission concluded that plaintiff had failed to show that NCDOT was negligent in not installing a median barrier on the section of highway where the accident took place. Plaintiff appeals from this opinion and award, and presents one argument on appeal: that the Industrial Commission erred by failing to find that the NCDOT's negligence in not installing median barriers in the section of I-85 where the accident occurred was the proximate cause of the decedents' death.

Standard of Review

Plaintiff's negligence claim was brought under the Tort Claims Act, N.C.G.S. § 143-291. "The Tort Claims Act was enacted in order to enlarge the rights and remedies of a person who is injured by the negligence of a State employee who was acting within the course of his employment. Pursuant to [N.C.G.S. § 143-291(a)], the [Industrial] Commission has exclusive jurisdiction to hear claims falling under this Act." Simmons v. N.C. Dept. of Transportation, 128 N.C.App. 402, 405, 496 S.E.2d 790, 792-93 (1998) (citing Wirth v. Bracey, 258 N.C. 505, 508, 128 S.E.2d 810, 813 (1963)).

The Tort Claims Act directs the Industrial Commission to determine whether the plaintiff's claim "arose as a result of the negligence of any officer, employee, ... or agent of the State while acting within the scope of his office, employment, service, agency or authority, under circumstances where ... a private person, would be liable to the claimant in accordance with the laws of North Carolina." N.C.G.S. § 143-291 (2003). Accordingly, "`[b]efore an award of damages can be made under the Tort Claims Act, there must be a finding of a negligent act by an officer, employee, servant or agent of the State.'" Smith v. N.C. Dep't of Transp., 156 N.C.App. 92, 100, 576 S.E.2d 345, 351 (2003) (quoting Taylor v. Jackson Training School, 5 N.C.App. 188, 191, 167 S.E.2d 787, 789 (1969)). The plaintiff has the burden of proof on the issue of negligence. Bailey v. N.C. Dept. of Mental Health, 2 N.C.App. 645, 651, 163 S.E.2d 652, 656 (1968).

The NCDOT is liable under the Tort Claims Act for the negligence of its employees. Smith v. N.C. Dep't of Transp., 156 N.C.App. 92, 100, 576 S.E.2d 345, 351 (2003). Under current law, the State is liable for negligent omissions, as well as negligent actions. Phillips v. N.C. Dept. of Transportation, 80 N.C.App. 135, 136-37, 341 S.E.2d 339, 340-41 (1986). Further, liability does not require that the negligence of an employee be the sole proximate cause of injury. Trust Co. v. Board of Education, 251 N.C. 603, 609, 111 S.E.2d 844, 849 (1960).

On appeal, this 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." Fennell v. N.C. Dep't of Crime Control & Pub. Safety, 145 N.C.App. 584, 589, 551 S.E.2d 486, 490 (2001) (citations omitted). The Commission's findings of fact are conclusive on appeal if supported by any competent evidence, notwithstanding the presence of other evidence that might have supported a contrary finding. Simmons v. N.C. Dept. of Transportation, 128 N.C.App. 402, 405, 496 S.E.2d 790, 793 (1998). "However, the findings of fact of the Industrial Commission are conclusive on appeal only when supported by evidence, and the Court, on appeal, may review the evidence to determine as a matter of law whether there is any evidence tending to support the findings." Vause v. Equipment Co., 233 N.C. 88, 93, 63 S.E.2d 173, 177 (1951) (citing Hildebrand v. Furniture Co., 212 N.C. 100, 193 S.E. 294 (1937)).

"The determination of negligence, proximate cause and contributory negligence requires an application of principles of law to the determination of facts. These are, therefore, mixed questions of law and fact and so are reviewable on appeal from the commission, the designations `Finding of Fact' or `Conclusion of Law' by the commission not being conclusive." Martinez v. Western Carolina University, 49 N.C.App. 234, 239, 271 S.E.2d 91, 94 (1980) (citing Brown v. Board of Education, 269 N.C. 667, 153 S.E.2d 335 (1967)). In the instant case, we conclude that the Industrial Commission's legal conclusions are based upon erroneous application of the law to the facts, and are not supported by its findings of fact.

Plaintiff's evidence established the following uncontested facts: In 1993, NCDOT completed a study of the relationship between median barriers on interstate highways and accidents in which a vehicle crosses the median strip (cross-median accidents) on interstate highways. The NCDOT study reviewed over 2900 accidents occurring between 1988 and 1991, and concluded that (1) cross-median accidents account for only 3% of interstate accidents but 32% of fatalities; (2) cross-median accidents are "steadily increasing" in number and severity, are three times as likely as other accidents to result in death, and caused 105 fatalities during the study period; (3) the number of cross-median accidents is not associated with impaired driving or with high driving speeds; and that (4) guardrails or median barriers installed in the median strip would prevent many, if not most, of these fatal cross-median interstate accidents in North Carolina. The 1993 NCDOT study identified the 24 sections of interstate highway with the greatest number of cross-median accidents, and prioritized these locations with regards to the installation of median barriers.

Neither relevant industry standard publications nor state and federal regulations required that median barriers be installed. Thus, the absence of median barriers did not place NCDOT in violation of statutory law or national road design standards. However, as a result of its study, NCDOT officials decided that median barriers should be installed at 24 locations on N.C. interstate highways. NCDOT ranked these 24 locations in the order of priority for installation of guardrails.

Funding for NCDOT construction is allocated by the State legislature, and supplemented by certain federal funds. Funding is a complex process, requiring that NCDOT obtain input from various citizen and government groups, prioritize its projects, allocate resources, and coordinate projects when appropriate. The cost of adding a median barrier to the Rowan County I-85 location was estimated at $1,344,000.00, with annual maintenance estimated to be over $200,000. With all these factors in mind, NCDOT decided in 1993 to stagger the installation of median guardrails at the 24 identified locations over a five year period.

In 1994, the first of these 24 median barriers was completed, on I-40 between Raleigh and Research Triangle Park (RTP). There have been no fatal cross-median accidents on this segment of I-40 since the median barrier was installed. The section of I-85 where the accident at issue herein occurred (the "Rowan County I-85 location") was initially ranked number seven, but after median barriers were installed on I-40, the section of I-85 where the accident took place moved up to sixth place in the priority list. In 1993, NCDOT anticipated that the area of the Rowan County I-85 location would be widened during the five year time frame or shortly thereafter. To avoid installing temporary barriers that would need to be removed during construction, NCDOT decided to incorporate the addition of guardrails into this larger construction project, "unless additional accidents require earlier action." In 1995, following "several severe accidents" on this stretch of road, NCDOT reduced the speed limit in the stretch of I-85 where the accident occurred from 65 to 55 mph. As of the date of the...