The Appeals Court has affirmed a $500,000 tort claims award to the family of a Camden County motorist who slid into a bridge after hitting a "pond" of standing rainwater only six days after another fatal wreck at the same location.
In an unpublished decision, the panel said the record was "replete" with evidence that the state Department of Transportation knew there was a road hazard after the first wreck but failed to take appropriate action.
The Rule 30(e) opinion, issued Sept. 6, is Walker v. N.C. Dept. of Transportation (North Carolina Lawyers Weekly No. 05-16-1127, 20 pages). Judge Douglas McCullough wrote the decision. Judges Patricia Timmons-Goodson and Sanford Steelman Jr. concurred.
According to the opinion, the decedent, Larry Walker, was traveling south on state Highway 343 in Camden County when his Ford Ranger lost traction on a wet road and struck a concrete bridge piling 88 feet away. Walker died of his injuries.
The Walker wreck was the second fatal accident in a week at that location. Six days earlier, a vehicle occupied by Luke Denison and Rebecca Gunderson lost traction following a heavy rain and struck a piling of the same bridge, killing both of them.
Walker's estate sued DOT under the Tort Claims Act. The complaint alleged that a division engineer, division maintenance engineer and district engineer were negligent by:
Permitting the highway to collect an unreasonably deep "pond of water" in the travel lanes.
Failing to install guardrails between the highway and bridge pilings.
Failing to install signs warning motorists of dangerous road conditions.
DOT denied the claims and raised a contrib defense, alleging Walker failed to reduce his speed for the wet road conditions and failed to keep proper control of his vehicle. Walker's rear tires also had inadequate tread, according to DOT.
A deputy commissioner found against the plaintiff but the full commission reversed in a 2-1 decision and awarded the plaintiff $500,000. The commission concluded that DOT had notice of a defect or dangerous road condition before Walker's death but failed to fix the problems or warn motorists.
The Appeals Court affirmed, saying the commission's findings were supported by competent evidence.
On appeal, DOT also attempted to raise the public duty and public officer shields as a bar to the plaintiff's claims. The appeals panel said the agency had waived those defenses by not raising them below — but noted that it found "the strength of these arguments to be dubious" in any event.
Attorney Comment
Elizabeth City lawyer Danny Glover Jr., who represented the plaintiff, said there was "no credible evidence" that DOT didn't know about the safety problems on that two-lane stretch of rural highway.
"After the first wreck, the acting first sergeant of the North Carolina Highway Patrol picked up the phone, called the district engineer and said 'You've got a problem with standing water on that road.'"
According to Glover, a DOT official who checked out the scene after the first wreck — "more out of curiosity than anything else" — had looked at the wrong area of the highway.
"DOT's people and our experts all said that the ruts in this road were of such severity that they would be visible to anyone — had they looked at this," Glover said. "What made this especially dangerous was that it was a posted 55 mph speed zone that went under a bridge supported by 10-foot-wide concrete pilings — none of which were protected by guardrails."
Well-Settled Rule Of Review
On two key issues — whether DOT had notice of the road hazards and whether the decedent's driving was negligent — the court said that DOT's arguments were undercut by the well-settled rule that the commission's findings stand if they are supported by competent evidence, even though other evidence in the record would support contrary findings.
Notice. DOT argued that various inconsistencies in the commission's findings voided its conclusion that DOT had notice of the hazardous road conditions before Walker's death.
The findings were not inconsistent "when read closely and in the context of the whole opinion and award," which was "replete with allusions to evidence tending to show DOT did have notice," said Judge McCullough.
According to other findings, a highway patrol sergeant called DOT District Engineer Jerry Jennings the day after the first wreck and "believed" that he mentioned there had been standing water on the road, Judge McCullough said. Another finding said that Jennings phoned his supervisor and advised him of the sergeant's report.
A third finding stated that several local newspaper articles were published within three days of the first wreck, all of which mentioned the wet road conditions. A fourth finding said that DOT's Camden County transportation supervisor also visited the first wreck scene "after he learned of it through a conversation at work."
Said Judge McCullough: "In light of the evidence mentioned in these findings, the commission was not precluded from determining … that DOT had notice of the defective and dangerous road condition that caused Walker's accident, even though the evidence may have also supported a contrary finding."
Contributory negligence. DOT also argued that the plaintiff's claim was barred by contrib because Walker had been driving too fast for the rainy conditions.
The court disagreed, saying the commission found there was no competent evidence that Walker was speeding at the time of his accident. Evidence in the record also established that the rear tire treads complied with statutory requirements.
However, DOT "insisted" there was evidence from which the commission could have concluded that contributory negligence was a factor in Walker's injuries and death.
That was not the standard of review, said Judge McCullough.
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Opinion Brief
Case Name: Walker v. N.C. Dept. of Transportation (North Carolina Lawyers Weekly No. 05-16-1127, 20 pages).
Court: N.C. Court of Appeals (Unpublished)
Judge: Douglas McCullough
Attorneys: For the plaintiff-appellee: Danny Glover Jr. of D. Keith Teague, P.A., Elizabeth City; for DOT: Assistant Attorney General Richard Harrison
Issue: Was there sufficient evidence to support the Industrial Commission’s findings that DOT had notice of a wet road hazard and that the plaintiff’s decedent was not contributorily negligent?
Holding: Yes, even though there may have also been evidence that would have supported a contrary finding.
Potential Impact: The opinion shows that in reviewing tort claims awards, courts will look at the "entire context" of the Industrial Commission’s opinion when reviewing the adequacy of the findings.
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September 19, 2005
