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authoritative.
NO.
COA04-916
NORTH
CAROLINA COURT OF APPEALS
Filed: 19 July 2005
ASHLEIGH SIMMONS, by and
through her Guardian Ad
Litem, HILTON SIMMONS,
Plaintiff,
v. North
Carolina Industrial Commission
I.C.
File No. TA-15398
COLUMBUS COUNTY BOARD OF
EDUCATION
Defendant.
Appeal
by defendant from decision and order entered 23 February 2004 by the Industrial
Commission. Heard in the Court of
Appeals 22 March 2005.
Britt & Britt,
P.A., by Donald Bardes, for plaintiff-appellee.
Attorney General
Roy Cooper, by Assistant Attorney General Dahr Joseph Tanoury, for
defendant-appellant.
ELMORE,
Judge.
This
case concerns a claim filed under the Tort Claims Act against the Columbus
County Board of Education (defendant).
The claim, heard by the Industrial Commission, involves a fight on a
school bus resulting in injuries to Ashleigh Simmons (plaintiff). The Industrial Commission ruled in favor of
plaintiff after a finding that the bus driver was negligent for not stopping
the fight and that her negligence was a proximate cause of plaintiff’s
injuries. Defendant appeals from this
judgment.
On 20
February 1995, plaintiff boarded her school bus driven by Emma Ford-Williams
(Williams) at Evergreen Elementary School in Columbus County, North
Carolina. Plaintiff, eleven years old,
sat four rows behind Williams. Prior to
the bus leaving the school and pulling onto the road, plaintiff called out to
Williams that another boy, Andre, was standing. Words were exchanged between Andre and plaintiff and subsequently
Andre’s older brother, Jasper Williams (Jasper) left his seat and began hitting
plaintiff. Jasper, an eighth grader,
was over six-feet tall and weighed between 175 to 200 pounds while plaintiff
was only four feet tall and weighed 124 pounds.
The
facts, as determined by the Commission, are that the attack began before the
bus left the school and was noticed by Williams prior to turning onto Old
Highway 74. The distance between the
bus stop pick-up area (where students loaded onto the buses to return home) and
the intersection with Old Highway 74 was approximately 230 feet. When Williams noticed the fight, she
responded by yelling behind her: “Y’all stop what you’re doing.” Although plaintiff initially defended
herself, she eventually was overpowered and knocked to the floor. It was then that Jasper began to kick her
repeatedly. According to the Commission’s
findings, this escalation of the attack occurred as the bus turned onto Old
Highway 74. As the fight escalated,
Williams decided to return to the school which took, according to plaintiff’s
evidence, about one and one-half minutes from the point that Williams noticed
the fight. When the bus returned to the
school, Williams motioned for a male teacher to enter the bus. The male teacher stopped the attack. At no point did Williams attempt to stop the
bus or separate the fighting children.
As a result of the attack, plaintiff suffered a fractured mid-clavicle,
hematoma above the right eye, ecchymosis of the left eye, mild traumatic brain
injury, head pain, nightmares, and an atypical fear of large men. The Industrial Commission found that
Williams was negligent and held defendant liable under the theory of respondeat
superior. The Commission awarded
plaintiff $8,567.79 for medical expenses as well as $34,000.00 for pain and
suffering.
The
standard of review for an appeal from the Full Commission’s decision under the
Tort Claims Act “shall be 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 (2003). As long as there is
competent evidence in support of the Commission’s decision, it does not matter
that there is evidence supporting a contrary finding. See Simmons v. N.C. Dept. of Transportation, 128 N.C. App.
402, 405, 496 S.E.2d 790, 793 (1998).
“The court’s duty goes no further than to determine whether the record
contains any evidence tending to support the finding.” Anderson v. Construction Co., 265
N.C. 431, 434, 144 S.E.2d 272, 274 (1965).
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, 128 N.C. at 405-06, 496 S.E.2d at 793. Accordingly, we will first review the record
to determine if there is competent evidence supporting the findings of the Full
Commission challenged by defendant.
Defendant
first challenges the Commission’s findings of fact three and five on the
grounds that there is no competent evidence supporting them. We disagree. Findings three and five are:
3. On the afternoon of February 20, 1995, Ms. [Williams] customarily drove on Evergreen School Road to the stop sign at Old Highway 74. Prior to turning on to Old Highway 74, Ms. [Williams] testified that she looked in her mirror and noticed that plaintiff and another student, Jasper Williams, were “hitting each other back and forth.” At that point, Ms. [Williams] yelled back: “Y’all stop what you’re doing.” Ms. [Williams] testified that the students did not respond to her command.
5. As the bus turned on to Old Highway 74
from Evergreen School Road, Jasper Williams began to hit plaintiff very hard on
her body. Ms. [Williams] neither
stopped the bus nor took any further action to address the escalating
situation; rather, she resumed driving the bus and continued toward Haynes
Lennon Road.
There is competent
evidence in the record from which the Full Commission could have inferred that
Williams noticed the fight prior to turning onto Old Highway 74 and that
the fight escalated as the bus turned onto Old Highway 74. Plaintiff testified that she and Jasper
began fighting prior to the bus turning onto Old Highway 74. It is a reasonable inference that since the
fight began before the bus turned onto Old Highway 74 that the fight escalated
as the bus turned onto Old Highway 74 and that Williams noticed the fight prior
to turning onto Old Highway 74. She did
in fact yell to the children to stop.
Defendant argues that this is not a reasonable inference because
Williams testified that she did not notice the fight until after turning
onto Old Highway 74. However, deciding
among reasonable inferences remains the role of the Commission and these
inferences “may not be overturned on appeal.”
Norman v. N.C. Dep’t Of Transp., 161 N.C. App. 211, 224, 588
S.E.2d 42, 51 (2003), cert. denied, 358 N.C. 545, 599 S.E.2d 404
(2004). Therefore, this Court accepts
the Commission’s findings that Williams noticed the fight prior to turning onto
Old Highway 74 and that the fight escalated as the bus turned onto Old Highway
74.
Defendant
also contends that there is no competent evidence supporting the Commission’s
finding number ten that states:
10. There is no evidence that Ms. [Williams]
could not locate a spot to pull over to the side of the road safely to enable
her to restore order and safety on her bus.
Because Ms. [Williams] decided to return to the school, instead of
pulling the bus over safely, Jasper Williams was given additional time in which
to continue severely beating plaintiff.
The Full Commission finds Ms. [Williams’s] decision to return to the
school instead of pulling off the roadway to restore order on her bus to be a
negligent breach of the duty of care owed to plaintiff. The fact that Ms. [Williams] yelled a
solitary warning command (“Y’all stop what you’re doing.”) toward the back of
the bus simply does not rise to the level of care owed to plaintiff. As soon as [Ms. Williams] realized the fight
was continuing despite her warning command, she should have taken immediate
action to find a safe place to pull over and restore order and safety on her
bus.
Defendant disputes
that there was a safe place for Williams to stop the bus and restore
order. Indeed, Williams testified that
she could not pull into the parking lot of a gas station because it was not a
designated stop. However, Williams
testified that in a previous incident she stopped the bus in order to quell a
fight between Jasper and another female student. While Williams was unable to remember whether or not she had
stopped at a designated stop, she did remember that after stopping the bus she
was able to successfully stop the incident.
Further, there is some evidence of an available safe place in which
Williams could have stopped. The
principal, Mr. Fulk, testified that there was an area near the gas station
where she could have safely stopped the bus.
Again, as long as there is competent evidence in support of the
Commission’s decision, it does not matter that there is evidence supporting a
contrary finding. See Simmons,
128 N.C. App. at 405, 496 S.E.2d at 793.
Because
the challenged findings of fact are supported by competent evidence, the only
other form of review available to defendant is for this Court to verify that
the findings of fact justify the Commission’s conclusions of law. Id. at 405-06, 496 S.E.2d at
793. Defendant argues that the
Commission’s conclusions of law are improper because (1) it was not reasonable
for Williams to pull off the roadway; (2) the Commission shifted a portion of
the burden of proof to defendant; (3) plaintiff was contributorily negligent;
and (4) Williams’s actions did not proximately cause plaintiff’s injuries.
According
to N.C. Gen. Stat. §143-291(a), it is up to the Industrial Commission, as the
trier of fact, to determine negligence.
The 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.
Id.
To
prevail on a claim of negligence under the Tort Claims Act, the plaintiff must
establish: “(1) that [defendant] owed plaintiff a duty of care under the
circumstances; (2) that actions or omissions by at least one of the named
employees of [defendant] constituted a breach of that duty; (3) that the breach
was the actual and proximate cause of plaintiff’s injury; and (4) that
plaintiff suffered damages.” Davidson
v. Univ. of N.C. at Chapel Hill, 142 N.C. App. 544, 553, 543 S.E. 2d 920,
926 (2001).
“The
standard of due care is always the conduct of a reasonably prudent person under
the circumstances. Although the
standard remains constant, the proper degree of care varies with the
circumstances.” Bolkhir v. N.C.
State Univ., 321 N.C. 706, 709, 365 S.E.2d 898, 900 (1988) (internal
citation omitted). Therefore, the
standard of due care in this case depends on the determination of what a
reasonably prudent bus driver would do to stop Jasper’s attack on plaintiff. This analysis includes a consideration of
the rules or safety standards that have been adopted by the school system. “[W]here it appears that defendant has
voluntarily adopted the rules or safety standards as a guide for the protection
of the public, they are admissible as some evidence that a reasonably prudent
person would adhere to their requirements.”
Slade v. Board of Education, 10 N.C. App. 287, 296, 178 S.E.2d
316, 322 (1971). Defendant, by not
excepting to the Commission’s finding of fact thirteen, agrees that “Ms.
[Williams] (as defendant’s agent) had a duty to follow the rules of safety for
school bus drivers, as provided by the NC Department of Transportation, when
ensuring the safety and protection of the students on her bus, including plaintiff.” The Commission’s finding of fact nine, also
not excepted to by defendant, provides an excerpt from a handbook given to bus
drivers by the North Carolina Department of Transportation. This excerpt gives
some guidance on how to handle cases of misbehavior. It states that a “driver should: (1) select a safe place to pull
off the roadway; (2) restore order; and (3) report misbehavior to the
principal, if necessary.”
Defendant
claims that it was not reasonable for Williams to pull off the roadway, and
therefore Williams had no duty to pull off the roadway. It makes this claim by excepting to the
Commission’s findings of fact twelve and fourteen:
12. The defendant has also argued that Ms. [Williams’s] decision to take no action (absent a solitary warning command) toward stopping the fight on the bus in favor of returning to the school for help was reasonable considering that the bus was only a short distance (less than a half-mile) from the school. However, Ms. [Williams] testified that she would have acted in the same manner even if the fight had occurred while the bus was 10 miles from the school. The Full Commission finds this statement as evidence of Ms. [Williams’s] total disregard for, or complete ignorance of, the rules of safety established by the NC Department of Transportation.
14. During the incident on February 20, 1995,
Ms. [Williams] breached the duty of care owed to plaintiff by failing to follow
safety procedures that require her to pull over to the side of the road safely
to restore order on her bus.
These two findings
are “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).
In
this case the findings of fact support the conclusion, identified as finding
number fourteen, that Williams did not meet her duty to follow the rules of
safety for school bus drivers. First,
the Commission found in finding number ten that there was a safe place for
Williams to pull off the roadway.
Finding of fact fifteen was that the prolonged and severe beating could
have been prevented had Williams immediately stopped the bus in a safe place
instead of returning to the school.
Second, Williams’s testimony that she was able to stop Jasper’s attack
on another female student by stopping the bus and separating the students
supports this conclusion. Last, Williams’s testimony that she would have acted
in the same manner even if the incident occurred ten miles from the school
shows a disregard for the established rules.
Nowhere in the rules is there a discussion that returning to school as a
first response to fighting is reasonable.
Although the Commission’s finding number twelve is sternly worded, it is
within their authority to weigh the evidence.
There is competent evidence to support these findings, and these
findings support the Commission’s conclusion that Williams breached her duty to
plaintiff.
Defendant
also claims that the double negative “[t]here is no evidence that Ms.
[Williams] could not locate a spot to pull over to the side of the road safely”
implies that the Commission shifted the burden of proof to defendant. However, the latter part of finding of fact
ten shows that the Commission did find that plaintiff proved that there was a
safe place to pull over, and as stated previously, there is competent evidence
supporting this finding. Moreover, we
interpret this finding’s wording as a determination that defendant’s evidence
did not refute the evidence presented by plaintiff, which was that there was a
safe place to stop the bus. Because the Commission found that
there was a safe place available for Williams to stop the bus, defendant’s
argument that the Commission shifted the burden of proof does not stand.
The Commission’s findings of fact also support its conclusions of
law that Williams’s breach was a proximate cause of the plaintiff’s
injuries. While this conclusion is listed
as finding of fact fifteen, this Court is not bound by the Commission’s
classification and in this instance finds the finding to be a conclusion of
law. The “conclusion” made by the
Commission is:
15. The breach
of duty proximately caused plaintiff to be subjected to a prolonged and severe
beating at the hands of Jasper Williams, which could have been prevented had
Ms. [Williams] taken immediate action to pull over and restore order on her bus
instead of driving back to the school.
As stated
above, Williams knew from a previous incident that she was able to prevent
Jasper from further injuring another student by stopping the bus in a safe
place and separating the two students.
Instead of repeating this previously successful action, Williams continued
to drive the bus with only one verbal warning directed at Jasper. Her failure to take any action in this case
allowed the fight to escalate to the point that Jasper succeeded in knocking
the plaintiff to the ground and kicking her for the remainder of the bus ride
back to school. Thus, Williams, by
allowing the fight to continue in time and severity, was a proximate cause of
plaintiff’s severe injuries.
Defendant contends that there was contributory negligence on the
part of the eleven-year-old plaintiff that prevents her from the recovery of
damages. Section 143-299.1 does deem
contributory negligence to be a defense, but “the State department, institution
or agency against which the claim is asserted . . . [has] the burden of proving
that the claimant or the person in whose behalf the claim is asserted was
guilty of contributory negligence.”
N.C. Gen. Stat. §143-299.1 (2003).
Here, defendant did not meet that burden. In North Carolina, children between the ages of seven and
fourteen are presumed to be incapable of contributory negligence. See Weeks v. Barnard, 265 N.C. 339,
340, 143 S.E.2d 809, 810 (1965). “This
presumption, however, may be overcome by evidence that the child did not use
the care which a child of its age, capacity, discretion, knowledge, and
experience would ordinarily have exercised under the same or similar
circumstances.” Id. (citation
omitted). The plaintiff in this case
was eleven years old, and thus is presumed incapable of contributory
negligence. Defendant offered no evidence
that plaintiff did not handle herself as a normal eleven-year-old girl. As such, the Commission did not err in
finding negligence on Williams’s part without finding any negligence on
plaintiff’s part.
This Court finds that there was competent evidence for the
Commission’s findings of fact and that the findings of fact support the
Commission’s conclusions of law. Thus,
the Commission’s decision and order is affirmed.
Affirmed.
Judges WYNN and TYSON concur.