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NO.
COA07-717
NORTH
CAROLINA COURT OF APPEALS
Filed:
04 March 2008
KAREN COULTER, as Guardian for
JOSHUA COULTER, DON and
KAREN COULTER, individually,
v. North
Carolina Industrial Commission
I.C.
File No. TA-18658
CATAWBA COUNTY BOARD OF
EDUCATION.
Appeal
by plaintiffs from an Opinion and Award entered 2 February 2007 by the North
Carolina Industrial Commission. Heard
in the Court of Appeals 4 February 2008.
Bryce
O. Thomas, Jr., for plaintiff-appellants.
Attorney
General Roy A. Cooper, III, by Assistant Attorney General Tina Lloyd Hlabse,
for defendant-appellee.
STEELMAN,
Judge.
The
Industrial Commission’s findings of fact are supported by competent evidence,
and the Industrial Commission did not err in concluding that plaintiffs failed
to prove that defendant’s employee was negligent and that the negligence of
defendant’s employee caused injury to the minor plaintiff.
I. Factual and Procedural Background
On 17 August 2001, Joshua Coulter (plaintiff)
was a student passenger on a school bus driven by Brenda Foster (Foster), an
employee of the Catawba County Board of Education (defendant). At approximately 3:30 p.m., Foster was
returning to Webb A. Murray Elementary School in Newton, N.C. Foster was traveling on Section House Road
towards Garren Drive, the driveway leading into the school. As Foster was making the right turn onto
Garren Drive, she saw a car coming towards her at a “fairly fast rate of
speed.” The front tire of the car was
across the center line and in Foster’s lane of travel. In order to avoid a collision, Foster turned
the bus to the right, causing the rear tire to hit the curb. When the tire went over the curb, plaintiff
was thrown against the side window of the bus, breaking the window. Plaintiff was taken to the hospital and
treated for cuts to his left neck, chin, upper lip, and scalp.
On
12 August 2004, plaintiffs filed this action against defendant pursuant to
Article 31 of Chapter 143 of the General Statutes (Tort Claims Act). This matter was docketed and heard by the
North Carolina Industrial Commission.
On 2 February 2007, the Industrial Commission filed its Opinion and
Award, which held that “Plaintiff failed to prove that defendant was negligent
and that negligence caused the damages of which plaintiff complains.” Plaintiffs appeal.
II. Commission’s Dismissal of Plaintiff’s Claim
In their first argument, plaintiffs contend the
Commission erred in dismissing their claim.
We disagree.
The North Carolina Tort Claims Act provides
for payment of damages for personal injuries sustained by any person
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, . . . 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 (2007). “To recover under the
Tort Claims Act, plaintiff must show that the injuries sustained by his son
were the proximate result of a negligent act of a state employee acting within
the course and scope of his employment.”
Bolkhir v. N.C. State Univ., 321 N.C. 706, 709, 365 S.E.2d 898, 900
(1988) (citations omitted). “Under the
Act, negligence is determined by the same rules as those applicable to private
parties.” Id. (citation
omitted). “Negligence is the failure to
exercise proper care in the performance of a legal duty which the defendant
owed the plaintiff under the circumstances surrounding them.” Dunning v. Warehouse Co., 272 N.C.
723, 725, 158 S.E.2d 893, 895 (1968) (citation omitted).
N.C. Gen. Stat. _ 143-293 governs appeals from the Industrial Commission to this Court, and provides in pertinent part:
. . . Such appeal 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 (2007).
On appeal, this 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.
McGee
v. N.C. Dep’t of Revenue, 135 N.C. App. 319, 324, 520 S.E.2d 84, 87-88 (1999)
(citations and quotations omitted).
Plaintiffs
argue that Foster made inconsistent statements, and that these alleged
inconsistent statements prove that she was negligent and that this negligence
was the proximate cause of the minor plaintiff’s injuries.
The
Commission found that:
16. As a whole
Ms. Foster’s testimony is credible.
Though there are slight differences in Ms. Foster’s reported statements,
they are not inconsistent to the point of making Ms. Foster’s testimony not
believable.
While
Foster’s testimony was not totally consistent, there is competent evidence in
the record to support the Commission’s findings of fact. See Vaughn v. Insulating Servs., 165 N.C.
App. 469, 472, 598 S.E.2d 629, 631 (2004) (citation omitted). “Moreover, the Commission is the sole judge
of the credibility of witnesses and the weight to be given the evidence.” Id. (citation omitted).
Plaintiffs
point to an alleged statement by Foster to Ms. Coulter that she was going
faster than she should have been.
However, Foster did not recall making this statement. Foster also testified that she was going
less than five miles per hour when she turned off of Section House Road. This testimony is supported by the report
prepared by Clarence Teague, Director of Transportation for defendant.
Plaintiffs further contend that the Industrial Commission’s findings of fact 7-11 were not supported by the evidence. These findings read as follows:
7. Thereafter,
Ms. Foster’s attention was focused on turning onto Garren Drive.
8. Ms.
Foster slowed her bus, checked her reference points and mirrors and
specifically recalled looking out her bus door and seeing the curb, as she was
trained to do in order to miss hitting the curb.
9. As
she was making the turn, Ms. Foster estimated her speed to be less than five
miles per hour.
10. As
Ms. Foster was turning onto Garren Drive, she saw a small, dark vehicle coming
off of Garren Drive at a high rate of speed toward her school bus and dart
across the centerline.
11. Ms.
Foster reacted to the oncoming vehicle in her lane by turning the school bus
sharply to the right causing the rear tire of the school bus to go up on the
curb and off again.
There
is competent evidence in the record to support these findings. Foster testified as to facts supporting each
of these findings, and the Commission found her testimony to be credible and
determined the appropriate weight to give to it. See Vaughn, 165 N.C. App. at 472, 598 S.E.2d at 631.
Plaintiffs
further contend that the Commission’s findings of fact 22 and 29-32 were not
supported by the evidence. These
findings read as follows:
22. Dr.
Munoz testified that the accident and severity of the scar had an impact on
Joshua psychologically. However, there
were no new diagnoses made for Joshua after this incident. There are no references made in Dr. Munoz’s
notes as to what affect, if any, this incident had on Joshua’s self-esteem or
self-image. . . .
29. Jewell
Blount and Darlene Woodruff, both school bus drivers at Murray Elementary,
testified that they have run up on the curb as they were turning onto Garren
Drive from Section House Road.
30. There
was no evidence presented by plaintiff as to what speed was too fast for that
turn. The other bus drivers testified
that they routinely and safely made the turn onto Garren Drive from Section
House Road going ten to fifteen miles per hour.
31. The
only testimony as to Ms. Foster’s speed on August 17, 2001 was Ms. Foster’s
testimony that she was traveling less than five miles per hour.
32. There
was insufficient evidence to support a finding that Ms. Foster was in violation
of any law in her operation of the bus.
As
to finding of fact 29, Jewell Blount, a school bus driver, testified “I’ve hit
the curb several times.” Darlene
Woodruff, another school bus driver, testified that she has hit the curb when
turning onto Garren Drive. This
testimony constitutes competent evidence supporting this finding.
With
respect to finding of fact 30, the record reveals that plaintiffs presented no
evidence regarding what speed would have been too fast to make the right turn
onto Garren Drive. Jewell Blount and
Darlene Woodruff testified that they routinely made the turn safely while
traveling at a speed of ten to fifteen miles per hour.
As to finding of fact 31, Foster testified that she was traveling at less than five miles per hour. As previously discussed, although Ms. Coulter testified that Foster made contradictory statements, the Commission found Foster’s testimony to be credible.
Finding
of fact 32 is supported by competent evidence in the record. Foster testified that she was going less
than five miles per hour and that she checked her mirrors, oncoming traffic,
and traffic behind her and to her right and left before making the turn. Before turning, Foster looked to see if
there were any vehicles coming out of Garren Drive, and she did not see
any. Foster also checked that the curb
was visible through the glass door to ensure that she would clear it upon
making the turn. The Commission’s
finding that there is insufficient evidence of a violation of any law is supported
by the record.
Each
of the above discussed challenged findings of fact is supported by the
evidence. The Commission’s conclusions
of law that plaintiff failed to prove that defendant was negligent and failed
to prove that defendant’s negligence caused the damages of which plaintiff
complains are supported by the findings.
Because the Commission did not err in concluding that plaintiff failed
to prove that defendant was negligent, we need not discuss finding of fact 22,
which pertains only to damages.
We
affirm the Commission’s dismissal of plaintiffs’ claim. This argument is without merit.
III. Alleged Errors by Deputy Commissioner
In their next argument, plaintiffs contend that
the Deputy Commissioner erred in denying their request to use deposition
testimony in lieu of live testimony. Plaintiffs
further contend that the Deputy Commissioner wrongfully expressed an opinion
during the 24 August 2005 hearing. We
disagree.
Appellate
review is limited to the decision and order of the Industrial Commission. See N.C. Gen. Stat. _ 143-293 (2007). Although plaintiffs’ assigned as error the
Deputy Commissioner’s alleged errors, they have not assigned as error the
Industrial Commission’s failure to address this alleged error. Thus, this issue has not been properly
preserved for our review.
This
argument is without merit.
AFFIRMED.
Chief
Judge MARTIN and Judge STEPHENS concur.