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NO. COA03-1390
NORTH CAROLINA
COURT OF APPEALS
Filed: 1 February 2005
JAMES
DREWRY, Administrator of the
Estate
of ROGER McKINLEY DREWRY,
Deceased,
Plaintiff,
v. North
Carolina Industrial Commission
I.C. File No. TA-15492
NORTH
CAROLINA DEPARTMENT
OF
TRANSPORTATION,
Defendant
Appeal
by plaintiff from opinion and award filed 30 July 2003 by the North Carolina
Industrial Commission. Heard in the
Court of Appeals 26 May 2004.
Attorney
General Roy Cooper, by Special Deputy Attorney General Robert T. Hargett, for
the State.
Reid, Lewis,
Deese, Nance & Person, by James R. Nance, Jr., for plaintiff-appellant.
BRYANT, Judge.
James Drewry[Note
1] (plaintiff) appeals from an opinion and award of the Full Commission
(Commission) filed 30 July 2003 dismissing plaintiff’s negligence action
against the North Carolina Department of Transportation (NCDOT) and two of its
employees.
This case was
heard before a Deputy Commissioner on 14 October 2002. Defendant’s motion to dismiss at the close
of plaintiff’s evidence was granted and an order was filed on 1 November 2002. Upon appeal, the Commission made the
following findings to which the plaintiff assigns no error[Note 2]:
1. On
April 15, 1996, at approximately 9:15 p.m., one to two inches of water was
standing in a 90-100 foot long pond on North Carolina Highway 217, (N.C. 217),
0.8 miles south of Linden in Cumberland County. The weather records from nearby monitoring stations show that it
had rained heavily, up to two inches that day.
The evidence shows that silt from an adjacent field, which had been
recently disced for farming, had washed out of the field and clogged a drainage
ditch that ran parallel to the roadway.
This caused water to flow across the roadway instead of down the ditch
to a highway drainpipe under the roadway and created the aforementioned pond.
2. On
April 15, 1996, the decedent, Roger Drewry, was driving his 1995 Pontiac Trans
Am V-8 Convertible. Plaintiff-decedent
left home and with a passenger, Lee Morgan, and drove to Fayetteville, North
Carolina. After shopping,
plaintiff-decedent and Mr. Morgan returned to Linden. After leaving U.S. 401 [N]orth,
plaintiff-decedent and Mr. Morgan proceeded down N.C. 217 [N]orth towards
Linden at 50 to 55 miles per hour.
Plaintiff-decedent ran into the standing water, lost control of his car,
left the roadway and overturned. Plaintiff-decedent
and Mr. Morgan were thrown from the vehicle and pinned underneath it. Mr. Morgan freed himself; however, even with
the help of two others who stopped to assist, he could not free
plaintiff-decedent. Plaintiff-decedent
died at the scene of the accident.
Trooper Minchew with the Highway Patrol investigated the accident and
testified that standing water and driver’s speed were contributing causes to
the accident.
3. On July
3, 1995, Mr. Denning contacted the [NCDOT] concerning standing water problems
on N.C. 217 at the scene of the subsequent accident. Thomas Burchell, a DOT
Transportation Supervisor III in charge of roadway maintenance for that area
responded. Mr. Burchell investigated
the complaint and determined the ditch had silted in and following [NCDOT]
practice determined that the ditch needed to be cleared and a berm built. On July 3, 1995, while investigating Mr.
Denning’s complaint Mr. Burchell took a video of the area. Mr. Burchell later showed the video to his
supervisor Hugh Matthews who concurred with Mr. Burchell’s remedial
recommendations.
4. Records
reflect that Mr. Burchell’s crew members as of August 21, 1995 had completed
the remedial work. Mr. Burchell
periodically checked the area to see if the action which had been taken to
correct the problem had its desired effect.
Mr. Burchell believed that it did and [NCDOT] received no further
complaints of drainage problems in that area until after plaintiff-decedent’s
accident on April 15, 1996. While
plaintiff presented witnesses who testified that they encountered standing
water on N.C. 217, no one notified [NCDOT] of the problems they encountered.
5. Plaintiff
contends that the reason water was standing on the roadway was that a
twenty-four inch drainage pipe located approximately one hundred feet down from
the silted-over ditch was inadequate to handle the amount of water from the
rainfall which occurred on the date of the accident. Plaintiff’s hydrology expert, James A. Spangler, II, testified
that the drainage area into the ditch and pipe located adjacent to and under
N.C. 217 was thirty-one acres plus or minus and included cultivated land. Mr. Spangler testified that [NCDOT]
regulations indicate in some instances that oversized piping can or should be
used in order to allow for obstructions.
However, the twenty-four inch pipe was some distance from the silted
area of the ditch which caused the flooding.
Further, Mr. Spangler testified that the twenty-four inch pipe, had it
been unobstructed, was adequate to handle the flow of water which fell on April
15, 1996[Note 3].
6. Robert
Godwin, the fire chief of Linden, responded to the emergency call for [the]
accident. Mr. Godwin spoke with the
passenger Lee Morgan at the scene of the accident. Mr. Morgan stated to Mr. Godwin that he (Morgan) had come through
the same area of N.C. 217 about twenty minutes before the accident
occurred. Mr. Godwin further testified
that whenever he noticed water hazards in the roadway he would contact the
Cumberland County Emergency Operations Center, but he never directly contacted
DOT.
. . .
9. [NCDOT]
had no prior notice of N.C. 217 being flooded on April 15, 1996 prior to the
accident that killed plaintiff-decedent.
The Commission
also found as fact the following, to which plaintiff did assign error:
7. Plaintiff-decedent and Mr. Morgan had passed through the flooded area in question approximately twenty minutes prior to the time of the accident in question here and were aware that the road was flooded prior to the accident.
8. Plaintiff
has failed to offer any evidence as to what relevant [NCDOT] regulations and
standards require as to design and maintenance of roads such as N.C. 217
including the design and control of water flow.
. . .
10. In
this situation, the problem was not the drainage pipe but the area where the
water ran out of the field into the ditch.
Plaintiff presented no testimony that the water after running out of the
field was backed up from the point of entering the ditch down to the location
of the pipe running under the roadway, but that the water ran directly out of
the field into the roadway. Plaintiff
presented no testimony that the water was ponded at the location of the pipe
under the roadway. Plaintiff presented
no testimony as to whether the ditch was properly designed or negligently
designed or maintained. Plaintiff only
presented testimony that water was in the roadway. Plaintiff offered no standard to compare and determine whether
there was negligence on the part of defendant in maintaining N.C. 217.
Based on these
findings, the Commission concluded that plaintiff: (1) failed to prove his case
by the greater weight of the evidence with respect to the standard of care or
duty owed by NCDOT or their employees to either plaintiff-decedent or the public;
and (2) failed to prove his case by the greater weight of the evidence that
NCDOT’s actions were the proximate or the contributing cause of the accident or
injuries to plaintiff-decedent.
Further, the Commission concluded that plaintiff-decedent was
contributorily negligent by having driven in the same location twenty minutes
prior to the accident and failing to take driving precautions of a reasonable
person given the known road and weather conditions. Plaintiff appeals from the opinion of the Commission.
______________________________
The dispositive
issue for our review is whether the Commission erred in findings of fact #8 and
#10, respectively, that there was no evidence of a standard of care required by
NCDOT for design and maintenance, nor evidence that the water was backed up
from the area of the pipe, due to water having entered the roadway from the
field.
Plaintiff first
argues the Commission erred in findings of fact #8 and #10 that there was no
evidence of a standard of care required by NCDOT for design and maintenance of
water flow vis-a-vis public roads such as N.C. Highway 217. In a related assignment of error, plaintiff
argues the Commission erred in findings of fact #10 that there was no evidence
in the record that the water was backed up from the area of the pipe, due to
the water having entered the roadway from the field. In these two assignments of error, plaintiff is essentially
arguing that NCDOT’s failure to install a 42-inch drainage pipe proximately
caused Drewry’s accident. We disagree.
The [NCDOT] is
subject to a suit to recover damages for death caused by its negligence only as
is provided in the Tort Claims Act. Davis v. Highway Commission, 271 N.C. 405, 408, 156 S.E.2d
685, 687 (1967). The Tort Claims Act
states in part, “the Industrial Commission shall determine whether or not each
individual claim arose as a result of the negligence of any officer, employee .
. . 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(a)
(2003).
Our Court has
previously ruled on the standard of review for tort claims from the
Commission. “Under the Tort Claims Act,
‘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.’” Smith v. N.C. Dep’t of Transp., 156
N.C. App. 92, 97, 576 S.E.2d 345, 349 (2003) (quoting Fennell v. N.C. Dep’t
of Crime Control & Pub. Safety, 145 N.C. App. 584, 589, 551 S.E.2d 486,
490 (2001)); see N.C.G.S. §143-293 (2003). Our Supreme Court has explained the role of appellate courts in
cases appealed from the North Carolina Industrial Commission holding, an
appellate court “does not have the right to weigh the evidence and decide the
issue on the basis of its weight. The
court’s duty goes no further than to determine whether the record contains any
evidence tending to support the finding.”
Deese v. Champion Int’l Corp., 352 N.C. 109, 115, 530 S.E.2d 549,
552 (2000) (citation omitted).
Under the Tort
Claims Act, N.C. Gen. Stat. §143-291(a) (2003), “negligence is determined by
the same rules as those applicable to private parties.” 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.”
Woolard v. N.C. Dept. of Transportation, 93 N.C. App. 214,
217, 377 S.E.2d 267, 269 (1989) (quoting Bolkhir v. N.C. State Univ.,
321 N.C. 706, 709, 365 S.E.2d 898, 900 (1988)).
Additionally,
under the Tort Claims Act:
[T]he burden of
proof as to [negligence is] on the plaintiff. Evidence is usually not required
in order to establish and justify a finding that a party has failed to prove
that which he affirmatively asserts. It usually occurs and is based on the
absence or lack of evidence.
Bailey v. N.C.
Dept. of Mental Health, 2 N.C. App. 645, 651, 163 S.E.2d 652, 656
(1968); Viar v. N.C. DOT, 162 N.C. App. 362, 364, 590 S.E.2d 909, 912
(2004) (“The plaintiff has the burden of proof on the issue of negligence.”); Griffis
v. Lazarovich, 161 N.C. App. 434, 443, 588 S.E.2d 918, 924 (2003)
(negligence was not presumed from the “mere happening of an accident”
. . . [when the plaintiff] failed to meet [his] burden of proving
negligence).
In
examining whether NCDOT failed to meet the standard of care owed to a
plaintiff, our Supreme Court has held that the public duty doctrine applies to
causes of action under the Tort Claims Act:
The general
common law rule provides that governmental entities, when exercising their
statutory powers, act for the benefit of the general public and therefore have no
duty to protect specific individuals. Because the governmental entity owes
no particular duty to any individual claimant, it cannot be held liable for
negligence for a failure to carry out its statutory duties. Absent a duty,
there can be no liability.
Stone v. N.C.
Dept. of Labor, 347 N.C. 473, 482, 495 S.E.2d 711, 716 (1998) (internal
citations omitted) (emphasis supplied).
The NCDOT
possesses the statutory authority to plan, construct, maintain, and operate the
system of public highways in this State.
N.C. Gen. Stat. §143B-346 (2003); C.C.T. Equipment Co. v. Hertz Corp.,
256 N.C. 277, 282, 123 S.E.2d 802, 806 (1962).
“The [NCDOT] is vested with broad discretion in carrying out its
duties[.] The Department of
Transportation and the myriad discretionary decisions made by them
. . . are not reviewable by the judiciary ‘unless [their] action
is so clearly unreasonable as to amount to oppressive and manifest abuse.’” Hochheiser v. N.C. Dept. of Transportation,
82 N.C. App. 712, 717-18, 348 S.E.2d 140, 143 (1986) (quoting Guyton v.
North Carolina Board of Transp., 30 N.C. App. 87, 90, 226 S.E.2d 175, 177
(1976)). In Hochheiser, the
“[NCDOT’s] intentional discretionary decision not to erect a guard rail
. . . was not ‘so clearly unreasonable as to amount to
oppressive and manifest abuse,’ so as to invoke the jurisdiction of the
judiciary or the Industrial Commission to review the discretionary
policy-making decisions of the Department of Transportation”; and therefore was
not a breach of any duty. Id. at
718, 348 S.E.2d at 143.
In the instant
case, the evidence shows that at some point prior to July 1995, NCDOT installed
a 24-inch drain pipe in the ditch along N.C. Highway 217. Plaintiff offered into evidence the steps
taken by NCDOT in July 1995 after a farmer, Mr. Denning notified the agency of
standing water on N.C. Highway 217.
NCDOT employee, Thomas Burchell, testified that he surveyed, video-taped
and conferred with his supervisor as to the recommended measures to take in
order to eliminate standing water on the roadway. The repairs included clearing ditches and putting in an earthen
berm. Once completed, Burchell drove by
the site on occasion to observe the repairs.
The NCDOT received no further complaints of standing water until
plaintiff-decedent’s accident which occurred on N.C. Highway 217 on 15 April
1996 at about 9:15 p.m. after a heavy rain.
In attempting
to show evidence of a standard of care requiring a 42-inch drain pipe,
plaintiff points to certain testimony in the record. Plaintiff’s expert hydrologist James Spangler testified as to
different methods that NCDOT may use in determining drain pipe size based on
variable amounts of rainfall. Spangler
stated that he used a method called the “TR-55 method” to study the 24-inch
drain pipe’s capacity to carry water run-off based on a 25-year rainfall event[Note
4], while acknowledging that there are four different methodologies used to
calculate water flow. Spangler
testified that “our calculations show that a two inch rainfall event would have
been carried efficiently by the 24-inch culvert that existed out there had it
not been blocked.” While plaintiff’s
expert evidence may have indicated a 42-inch pipe should have been installed,
it fails to indicate a standard of care or duty required by NCDOT to install a
42-inch pipe. Therefore it appears the
Commission’s findings, that plaintiff presented insufficient evidence to
establish NCDOT’s standard of care, are supported by competent evidence.
Plaintiff also
argues the Commission erred in finding of fact #10 when it found there was no
evidence the water was backed up from the pipe. We disagree. The evidence shows that the silt build-up that
created the flooding on the roadway came from a combination of the farmer’s
discing the field and the heavy rainfall.
In other words, standing water in the highway occurred when the
adjacent, silt-clogged ditch, prevented
excess water from reaching the drainage pipe. Both water and silt were observed in the clogged drain pipe as
the recently exposed soil filled the ditch with silt which then caused excess
water to run onto the highway.
Plaintiff’s
expert Spangler testified “in some instances that oversized piping can or
should be used in order to allow for obstructions.” However, the 24-inch pipe was some distance away from the silted
area of the ditch which caused the flooding.
Further, Spangler testified “the 24-inch pipe, had it been unobstructed
was adequate to handle the flow of water which fell on April 15, 1996.” We note the unchallenged findings of the
Commission indicating that silt from the recently disced field cause the drain
pipe to clog, which in turn, caused water to flow across the highway as opposed
to the drain in the ditch. Therefore,
there is sufficient competent evidence to support the Commission’s findings of
fact #10.
In addition to
failing to prove that NCDOT owed a specific duty or that it breached any duty,
plaintiff’s evidence did not show that the NCDOT’s failure to install a 42-inch
drainage pipe proximately caused Drewry’s accident.
Proximate cause
is a cause which in natural and continuous sequence, unbroken by any new and
independent cause, produced [a] plaintiff’s injuries, and without which the
injuries would not have occurred, and one from which a person of ordinary
prudence could have reasonably foreseen that such a result, or consequences of
a generally injurious nature, was probable under all the facts as they existed.
Woolard, 93 N.C. App.
at 218, 377 S.E.2d at 270 (1989) (quoting Hairston v. Alexander Tank &
Equipment Co., 310 N.C. 227, 233, 311 S.E.2d 559, 565 (1984)).
Plaintiff
offered no evidence tending to show that plaintiff-decedent Drewry could or
would have survived the accident had the 42-inch drainage pipe been installed.
Plaintiff’s evidence here lacked key facts to meet his burden of proving that
NCDOT’s actions were the proximate cause of the accident. See Bailey, 2 N.C. App. 645, 651, 163
S.E.2d 652, 656 (1968). NCDOT received
notice of the flooded roadway in 1996 only after plaintiff-decedent’s
fatal accident and after having repaired, maintained and inspected the
area for the year prior. Upon learning
of Drewry’s accident, NCDOT revisited the scene noting the farmer had again
disced the field and the previously installed berm from 1995 was no longer in
place. Here, the Commission concluded,
based on the lack of plaintiff’s evidence as to NCDOT’s standards required to
maintain the highway, and the facts showing an independent cause of the water
flooding the road, plaintiff failed to meet his burden of proving NCDOT’s
negligence. Therefore, we find the
Commission made adequate findings of fact to support such a conclusion.
Plaintiff also
challenges the Commission’s finding of fact #7. Because this finding of fact concerns contributory negligence,
and as we have determined the Commission did not err in dismissing plaintiff’s
negligence action, it is not necessary to address this issue.
We affirm the
Commission’s opinion and award dismissing plaintiff’s negligence action.
Affirmed.
Judges TYSON
and STEELMAN concur.
1. Administrator of the estate of Roger
McKinley Drewry, deceased.
2. Accordingly, these findings are
deemed supported by competent evidence and are binding on appeal. See Watson
v. Employment Sec. Comm’n, 111 N.C. App. 410, 412, 432 S.E.2d 399, 400
(1993).
3. Plaintiff assigned error to finding
#5, but failed to argue same in his brief; it is therefore deemed
abandoned. N.C. R. App. P. 28(a)
(2003).
4. A
“25-year event”, with respect to rainfall, is defined by plaintiff’s expert
hydrologist as the calculation of “the amount of water that would be expected
at a particular point based on drainage area and soil types and precipitation
and other coefficients having to do with friction and how water travels across
the landscape” over a twenty-five-year time period.