Wilkerson v. Norfolk Southern Ry. Co.

• Decision Date: 16 July 2002
• Docket Number: No. COA01-330.,COA01-330.
• Citation: 151 NC App. 332,566 S.E.2d 104
• Court: North Carolina Court of Appeals
• Parties: Sandra O. WILKERSON, Ancillary Administratrix of the Estate of Johnnie Alan Wilkerson, and Sandra O. Wilkerson, Individually, Plaintiffs, v. NORFOLK SOUTHERN RAILWAY COMPANY, and the City of Durham, a Municipal Corporation, Defendants.

566 S.E.2d 104

151 NC App. 332

Sandra O. WILKERSON, Ancillary Administratrix of the Estate of Johnnie Alan Wilkerson, and Sandra O. Wilkerson, Individually, Plaintiffs, v. NORFOLK SOUTHERN RAILWAY COMPANY, and the City of Durham, a Municipal Corporation, Defendants.

No. COA01-330.

Court of Appeals of North Carolina.

July 16, 2002.

Law Offices of William F. Maready, by William F. Maready, Celie B. Richardson, and Gary V. Mauney, Winton-Salem, for plaintiff appellant.

Faison & Gillespie, by Reginald B. Gillespie, Jr., and Keith D. Burns, Durham, for The City of Durham defendant appellee.

THOMAS, Judge.

Based on its interpretation of governmental immunity, the trial court in this case granted the summary judgment motion of defendant, the City of Durham (the City). Plaintiff appeals.

The complaint stems from a collision between a truck driven by Johnnie Alan Wilkerson and an Amtrak train at the Plum Street railroad crossing in Durham, North Carolina. The accident, which occurred on 18 June 1998, resulted in Wilkerson's death.

Plaintiff, Sandra O. Wilkerson, Ancillary Administratrix of the Estate of Johnnie Alan Wilkerson, argues five assignments of error. She contends the trial court erred by (I) overruling the previous order of another superior court judge; (II) finding that the City had immunity with regard to a safety improvement project at the crossing; (III) finding that the City did not have a ministerial duty to complete the safety improvement project within a reasonable time; (IV) finding that the City did not exercise authority and control over Plum Street regarding the safety improvement project; and (V) finding that the City did not have a duty to keep foliage and other obstructions from blocking drivers' views of oncoming trains. For the reasons herein, we affirm the order and judgment of the trial court.

The facts tend to show the following: Prior to 1992, the North Carolina Department of Transportation (DOT) conducted a study of railroad crossings in North Carolina. Among those examined was the Plum Street crossing (the crossing). The railroad tracks at the crossing were owned, operated, and maintained by defendant, Norfolk Southern Railway Company (Norfolk Southern).

DOT examined several features of the crossing, including the number of vehicles that crossed the tracks, the number and speed of trains passing through the crossing, the history of accidents over a ten-year period, and the existing safety precautions. DOT determined the crossing to be dangerous. It contacted the City in the spring of 1992 and proposed that the crossing's safety devices be improved with lights and gates installed.

The Durham City Council approved the proposal on 20 July 1992 and agreed to pay 20% of the construction cost and 50% of the maintenance cost. DOT was to administer the project and obtain federal funding. It was also responsible for contracting with Norfolk Southern to install the traffic control safety devices. DOT agreed to initially pay for the project but would be reimbursed by an 80% contribution from the federal government and the 20% contribution from the City.

The final agreement was executed by the parties on 14 September 1992. On 30 December 1992, DOT sent the City a supplemental agreement with the only modification being that the City's share of construction costs was reduced to 10%. The supplemental agreement was approved by the Durham City Council on 1 February 1993, but was not returned to DOT at that time. In 1993 and 1994, DOT worked on the preliminary engineering and asked Norfolk Southern to prepare full engineering plans and an estimate of costs. From 1994 to 1996, Norfolk Southern put the project on hold while it prepared the cost estimate and project plans and investigated the possible involvement of other railroad track owners. Norfolk Southern did not grant final approval until 17 July 1996.

On 9 August 1996, DOT forwarded a construction agreement to Norfolk Southern with a recitation that Norfolk Southern would begin work "as soon as possible." Norfolk Southern executed the agreement and returned it to DOT on 14 February 1997.

Also on 9 August 1996, DOT sent the City a letter asking for its approval of Norfolk Southern's plans and for the City to sign and return the supplemental agreement from 30 December 1992. This was the first time the City became aware that the supplemental agreement had not been returned to DOT. On 30 April 1997, the City approved Norfolk Southern's plans, materials list, and cost estimate. City Transportation Engineer Edward Sirgany was responsible for notifying DOT of the City's approval. However, Sirgany's office was damaged by Hurricane Fran in September 1996 and he "had a lot of the documents that got lost and flooded and destroyed." On 7 May 1997, the City executed and returned the 1992 supplemental agreement to DOT.

On 28 May 1997, DOT authorized Norfolk Southern to proceed with its work but nothing was done at the crossing for more than a year. The work began after the 18 June 1998 accident and was completed by 30 June 1998.

Plaintiff filed her complaint on 10 February 1999, alleging, inter alia, that the City was negligent and proximately caused Wilkerson's death by (1) delaying the return of the supplemental agreement to DOT from 30 December 1992 to 7 May 1997; (2) delaying approval of construction plans from August 1996 to April 1997; and (3) failing to remove a large mound of dirt, a metal building, and bushes at the crossing, all of which obstructed the decedent's view of the crossing and the oncoming train.

The City moved to dismiss portions of plaintiff's complaint pursuant to N.C. Gen. Stat. § 1A-1, Rules 12(b)(6) and 12(c) (2001). The trial court allowed the City's motion in part. It dismissed plaintiff's claim for punitive damages, her third cause of action (asserting a third-party beneficiary claim with respect to contracts between DOT and the City and between DOT and Norfolk Southern regarding a signal upgrade), and her fourth cause of action (asserting a claim for infliction of severe emotional distress). Plaintiff was allowed to proceed with her claims for negligence in the execution and performance of the agreement for the safety improvements and for negligent failure to maintain the area surrounding the crossing.

The City later filed a summary judgment motion based on governmental immunity and a lack of duty to provide traffic control safety devices at, or to maintain, the crossing. The trial court granted the motion and dismissed plaintiff's action against the City. Plaintiff appeals.

While the trial court granted summary judgment for the City, plaintiff's case against Norfolk Southern remained alive. "A grant of partial summary judgment, because it does not completely dispose of the case, is an interlocutory order from which there is ordinarily no right of appeal." Liggett Group v. Sunas, 113 N.C.App. 19, 23, 437 S.E.2d 674, 677 (1993).

However, an interlocutory order may nonetheless be appealed pursuant to Rule 54(b) of the North Carolina Rules of Civil Procedure if: (1) the action involves multiple claims or multiple parties, (2) the order is "a final judgment as to one or more but fewer than all of the claims or parties," and (3) the trial court certifies that "there is no just reason for delay."

Yordy v. North Carolina Farm Bureau Mut. Ins. Co., ___ N.C.App.___,___, 560 S.E.2d 384, 385 (2002) (quoting N.C. Gen.Stat. § 1A-1, Rule 54(b) (1999)). Here, the trial court certified that "there is no just reason for delay in the entry of a final judgment dismissing Plaintiff's claims against the City." Having determined that the order and judgment fully complies with the requirements set forth in Yordy, we conclude plaintiff's appeal is properly before us and therefore turn to the merits of the case.

Summary judgment is appropriate when

the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.

N.C. Gen.Stat. § 1A-1, Rule 56(c) (2001). "On appeal from an order granting summary judgment, we must review the pleadings, affidavits and all other materials produced by the parties at the summary judgment hearing to determine whether there existed any genuine issue of fact and whether one party was entitled to judgment as a matter of law." Bradley v. Wachovia Bank & Trust Co., 90 N.C.App. 581, 582, 369 S.E.2d 86, 87 (1988). See also Willis v. Town of Beaufort, 143 N.C.App. 106, 108, 544 S.E.2d 600, 603, disc. review denied, 354 N.C. 371, 555 S.E.2d 280 (2001).

Previous Order by Trial Court

In her first assignment of error, plaintiff contends the trial court erred by overruling the previous order of another superior court judge. We disagree.

On 10 April 2000, the City filed a motion to dismiss plaintiff's complaint based on N.C. Gen.Stat. § 1A-1, Rule 12(b)(6) (failure to state a claim upon which relief can be granted) and N.C. Gen.Stat. § 1A-1, Rule 12(c) (judgment on the pleadings). On 30 May 2000, the City's motion was granted in part and denied in part. The trial court allowed plaintiff to proceed with her claims for negligence in the execution and performance of the agreement and for negligent failure to maintain the area surrounding the crossing.

The City then filed a motion for summary judgment on 23 June 2000. In support of its motion, the City asked the trial court to consider numerous affidavits from City employees, depositions, maps, photographs, and other documentary materials. On 6 September 2000, a different judge granted summary judgment on the remaining claims.

While plaintiff contends these separate rulings are in conflict, we do not agree that the first ruling rendered improper the subsequent grant of summary judgment. When the trial court considered the City's motion to dismiss based on Rule 12(b)(6) and Rule 12(c), it...