Ray v N.C. Dep't of Transp

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NO. COA11-17 NORTH CAROLINA COURT OF APPEALS Filed: 20 December 2011 JENNIFER RAY, Administratrix of the Estate of MICKELA NICHOLSON; LINDA JUDGE, Administratrix of the Estate of MARIANNE DAUSCHER; and EILEEN and ROGER LAYAOU, CoAdministrators of the Estate of MICHAEL LAYAOU, Plaintiffs, v. From the Industrial Commission IC Nos. TA-18568, TA-18699, and TA-18694 N.C. DEPARTMENT OF TRANSPORTATION, Defendant. Appeal by Plaintiffs from Order entered 13 July 2010 by the Full Commission of the North Carolina Industrial Commission. Heard in the Court of Appeals 17 August 2011. Zaytoun Law Firm, PLLC, Plaintiffs-appellants. by Robert E. Zaytoun, Attorney General Roy Cooper, by Special Deputy General Amar Majmundar, for Defendant-appellee. for Attorney Paterson Harkavy LLP, by Burton Craig, and Jonathan R. Reich, for North Carolina Advocates for Justice, amicus curiae. HUNTER, JR., Robert N., Judge. Plaintiffs appeal from the 13 July 2010 Order of the North Carolina Industrial Commission, which held that the public duty -2doctrine applied to bar Plaintiffs claims and that those claims were therefore dismissed under Rule Carolina Rules of Civil Procedure. 12(b)(6) of the North Plaintiffs argue that the public duty doctrine does not apply and that the Full Commission erred in dismissing their case. We agree. I. Factual & Procedural Background On 31 August 2002, Mickela S. Nicholson was driving her vehicle on RP 1010, a state-maintained road, in Johnston County. Plaintiffs claim for damages alleges her car went off the side of the roadway due to an eroded section of pavement near the shoulder. While getting back onto the roadway, Ms. Nicholson s vehicle went out of her control, crossing the center line where she collided head-on with a vehicle driven by Carlos Ortega Valdivia. vehicle, Ms. Marianne Nicholson Dauscher, and the Michael three passengers Layaou, and in Steven her Carr, were all killed in the collision. In July and August 2004, the estates of Ms. Nicholson, Mr. Layaou, and Ms. Dauscher (collectively Plaintiffs ) filed claims against the North Carolina Department of Transportation ( Defendant or DOT ) with the North Carolina Commission for damages under the Tort Claims Act. Industrial Plaintiffs alleged that the defective roadway was a proximate cause of the -3accident and that Defendant knew or should have known of the defect. Defendant moved to dismiss Plaintiffs claims, pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure, based on the public duty doctrine. On 16 July 2009, Chief Deputy Commissioner Stephen T. Gheen denied Defendant s motion. Defendant appealed to the Full Commission. Full Commission Commissioner expressing granted Danny his view Lee Defendant s McDonald that On 13 July 2010, the the wrote Full motion a concurring Commission precedent, even if the result was unjust. to was dismiss. opinion bound by Plaintiffs appeal the Full Commission s Order. II. Jurisdiction & Standard of Review This Court has jurisdiction to hear this appeal pursuant to N.C. Gen. Stat. § 143-293 (2009). The [Industrial] reviewed de novo. Commission s conclusions of law are McRae v. Toastmaster, Inc., 358 N.C. 488, 496, 597 S.E.2d 695, 701 (2004). Because we consider only the question of law whether the affirmative defense of the public duty doctrine applies, we Industrial Commission de novo. review this conclusion of the -4III. Analysis Plaintiffs argue the Full Commission erred in dismissing their case doctrine. The based on their application of the public duty We agree. State Tort Claims Act ( STCA ) provides for claims against the State which arise 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. N.C. Gen. Stat. § 143-291(a) (2009). Such claims are heard and decided upon by the Industrial Commission. Id. Our Courts have repeatedly found that the Department of Transportation may be liable for claims for negligent roadway maintenance brought under the STCA. See, e.g., Jordan v. Jones, 314 N.C. 106, 331 S.E.2d 662 (1985); Norman v. N.C. Dep t of Transp., 161 N.C. App. 211, 588 S.E.2d 42 (2003); Smith v. N.C. Dep t of Transp., 156 N.C. App. 92, 576 S.E.2d 345 (2003); Phillips v. N.C. Dep t of Transp., 80 N.C. App. 135, 341 S.E.2d 339 (1986); Zimmer v. N.C. Dep t of Transp., 87 N.C. App. 132, 360 S.E.2d 115 (1987). -5In Zimmer, the plaintiff was driving roadway selected by the DOT as a detour. 360 S.E.2d curve. pavement, at Id. 115-16. His on an alternate 87 N.C. App. at 132, tractor-trailer rounded a sharp The rear tires of the trailer dropped off the and the truck overturned and crashed down embankment, causing serious injury to the plaintiff. an Id. at 133, 360 S.E.2d at 116. The plaintiff alleged the DOT was negligent the in designating detour, failing to correct hazardous conditions, and failing to provide warnings of the hazardous conditions. waived its immunity for Id. This such Court found the State claims and that the Industrial Commission was the appropriate tribunal to hear the claim. at 137, 360 S.E.2d at 118. had Id. However, we recognize that Zimmer and the other cases cited supra did not consider whether the public duty doctrine applies in a state tort claim action. See Stone v. N.C. Dep t of Labor, 347 N.C. 473, 480, 495 S.E.2d 711, 715 (1998).1 The Restatement of Torts (Third) explains the policy behind doctrines such as the public duty doctrine: Courts 1 employ no-duty rules to defer to In cases prior to 1991, the public duty doctrine was not considered because it had not yet been adopted by our Supreme Court. In Norman and Smith, both decided in 2003, the public duty doctrine was not pled as an affirmative defense. -6discretionary decisions made by officials from other branches of government, especially decisions that allocate resources or make other policy judgments. . . . For example, courts often hold that police have no duty of reasonable care in deciding how to allocate police protection throughout a city. This no-duty limitation requires analysis of whether the challenged action involves a discretionary determination of the sort insulated from review or instead is a ministerial action that does not require deference. Restatement of Torts (Third): Liability for Physical and Emotional Harm § 7 (2010). Our Supreme Court first recognized the common law rule known as the public duty doctrine in Braswell v. Braswell, 330 N.C. 363, 410 S.E.2d 897 (1991). The public duty doctrine states, [A] municipality and its agents act for the benefit of the public, and therefore, there is no liability for the failure to furnish police protection to specific individuals. 370, 410 S.E.2d at 901. Id. at The rationales behind the rule are that it recognizes the limited resources of law enforcement and that a public agency cannot be a guarantor of safety involving the actions of others over which it has no control. Thus, the Court refused to judicially impose an overwhelming burden of liability for failure to prevent every criminal act. 370-71, 410 S.E.2d at 901. Id. at The Court recognized two exceptions -7to the doctrine between the (1) injured where party there and is the a special police and relationship (2) where police create a special duty by promising protection. the Id. at 371, 410 S.E.2d at 902. In Stone, doctrine Labor to for Hamlet. our claims failure Supreme against to Court the inspect a applied North the Carolina chicken 347 N.C. 473, 495 S.E.2d 711. public duty Department processing plant of in A fire started in the chicken processing plant, and more than one hundred workers were injured or killed. Id. at 477, 495 S.E.2d at 713. the previously fire, numerous Occupational revealed. Safety Id. and undiscovered Health Act of Following violations North of Carolina the were The plaintiffs brought a common law negligence action against the State for failing to inspect the plant prior to the fire. Id. The Court reasoned that the public duty doctrine was necessary to prevent an overwhelming burden of liability on governmental agencies with limited resources. Id. at 481, 495 S.E.2d at 716 (quoting Braswell, 330 N.C. at 370-71, 410 S.E.2d at 901). In Hunt v. N.C. Dep t of Labor, 348 N.C. 192, 499 S.E.2d 747 (1998), our Supreme Court applied the public duty doctrine to a negligence action after a go-kart s brakes failed, injuring -8a minor. Although the Department of Labor inspected the park, the plaintiff alleged the inspector negligently failed to inform the amusement park manager of the rules regarding seat belts and of the park s violations of those rules. Id. The Court declined to apply a special relationship exception to the public duty doctrine, reasoning that to do so would make the defendant a virtual guarantor of the safety of every go-kart subject to its inspection and would expose it to an overwhelming burden of liability. Id. at 199, 499 S.E.2d at 751. In Myers v. McGrady, 360 N.C. 460, 628 S.E.2d 761 (2006), our Supreme Court applied the public duty doctrine to a claim brought by the estate of a passenger who was killed in a motor vehicle collision. Id. Thick smoke from a nearby forest fire, combined with fog, obscured the road. Id. A driver stopped a vehicle to change drivers, and the stopped vehicle was rearended, resulting in a four-vehicle collision. Id. The plaintiff alleged the Division of Forest Resources was negligent in managing the forest fire. Id. In applying the public duty doctrine, the Court said fire fighting decisions concern the allocation of limited resources and are not generally the type of decisions for which the State is liable to private citizens in tort. Id. at 468, 628 S.E.2d at 767. The Court said it -9would not judicially impose overwhelming liability . . . for failure to prevent personal injury resulting from forest fires. Id. The extension of the public duty doctrine in North Carolina, however, has not been unlimited and does not foreclose all tort claims against state agencies. In all cases where the public duty doctrine has been held applicable, the breach of the alleged duty has involved the governmental entity s negligent control of an external injurious force or of the effects of such a force. Strickland v. Univ. of N.C. at Wilmington, ___ N.C. App. ___, ___, 712 S.E.2d 888, 892 (2011). In decisions applying the public duty doctrine, our Supreme Court has stated it will not impose a burden of liability for failure to prevent the acts of third parties or failure to protect the general public from harm from an outside force. See Braswell, 330 N.C. at 370, 410 S.E.2d at 901 (refusing to judicially impose an overwhelming burden of liability for failure to prevent every criminal act (emphasis added)); Stone, 347 N.C. at 481, 495 S.E.2d at 716 (refusing to judicially impose an overwhelming burden of liability on defendants for failure to prevent every employer s negligence that results in injuries or deaths to employees (emphasis added)); Myers, 360 N.C. at 468, 628 S.E.2d -10at 767 (choosing not to judicially impose overwhelming liability on [state agencies] for failure to prevent personal injury resulting from forest fires (emphasis added)). The decision to maintain the roads in a safe condition is a duty of the DOT and is not discretionary. See N.C. Gen. Stat. § 143B-346 (2009) ( The general purpose of the Department of Transportation construction, statewide is to provide maintenance, transportation for and the necessary operation system for the of an planning, integrated economical and safe transportation of people and goods as provided for by law. ). In order to recover, Plaintiffs must show Defendant knew, or by ordinary diligence, might have known of the defect, and the character of the defect was such that injury to travellers using its street foreseen. . . . in a proper manner might reasonably be Smith v. Hickory, 252 N.C. 316, 318, 113 S.E.2d 557, 559 (1960). In the present case, Plaintiffs do not contend Defendant failed to prevent harm or protect them from harm by a third party or outside force. Plaintiff alleges Defendant knew, or in the exercise of reasonable care should have known of the dangerously defective defective roadway section features of were roadway the and proximate that cause [t]he of the -11collision. to police, roadway. This case does not involve a failure to inspect or but a failure to repair a defective section of There is no hazard[] created by others or important discretionary decision which requires the protected under the public duty doctrine. government to be The requirement that the defendant knew or should have known of the defect limits liability and alleviates concerns of an overwhelming burden of liability in allowing claims. We hold the public duty doctrine inapplicable in these circumstances. We note that in 2007, the General Assembly passed AN ACT TO LIMIT THE USE OF THE PUBLIC DUTY DOCTRINE AS AN AFFIRMATIVE DEFENSE FOR CLAIMS UNDER THE STATE CLAIMS ACT IN WHICH THE INJURIES OF THE CLAIMANT ARE THE RESULT OF THE ALLEGED NEGLIGENT FAILURE OF CERTAIN PARTIES TO PROTECT CLAIMANTS FROM THE ACTION OF OTHERS. N.C. Session Law 2008-170; see N.C. Gen. Stat. § 143-299.1A (2009). This Act does not apply to the present case, as it applies only to claims arising on or after 1 October 2008. As we hold the public duty doctrine does not apply in this case under current law, there is no need to consider whether this statute changed or merely clarified the common law. -12IV. Conclusion For the foregoing reasons, we hold the public duty doctrine does not apply and the case is therefore Reversed and remanded. Judge STROUD concurs in the result only. Judge HUNTER, Robert C. dissents in a separate opinion. NO. COA11-17 NORTH CAROLINA COURT OF APPEALS Filed: 6 December 2011 JENNIFER RAY, Administratrix of the Estate of MICKELA NICHOLSON; LINDA JUDGE, Administratrix of the Estate of MARIANNE DAUSCHER; and EILEEN and ROGER LAYAOU, CoAdministrators of the Estate of MICHAEL LAYAOU, Plaintiffs, v. From the Industrial Commission IC Nos. TA-18568, TA-18699, and TA-18694 N.C. DEPARTMENT OF TRANSPORTATION, Defendant. HUNTER, Robert C., Judge, dissenting. As I discern no meaningful distinction between the present case and Myers v. McGrady, 360 N.C. 460, 628 S.E.2d 761 (2006), I must conclude plaintiffs negligence claims are barred by the public duty doctrine and I respectfully dissent.2 The public duty doctrine provides that when a governmental entity owes a duty to the general public, particularly a statutory duty, individual plaintiffs may not enforce the duty 2 I note that with the enactment of N.C. Gen. Stat. § 143-299.1A, the General Assembly limited the scope of the public duty doctrine. However, as section 143-299.1A applies only to claims arising on or after 1 October 2008, it does not impact my analysis of plaintiffs claims. 2008 N.C. Sess. Laws ch. 170, § 2. - 2in tort. Id. at 465-66, 628 S.E.2d at 766. plaintiff and third-party plaintiffs In Myers, the (collectively the plaintiffs ) filed claims of negligence against a division of the North Carolina Department of Environment and Natural Resources ( DENR ), a state agency, for failure to control a naturally occurring forest fire or failing to make safe a public highway adjacent to the fire. Id. at 462, 628 S.E.2d at 763 (footnote omitted). In concluding the public duty doctrine barred the plaintiffs claims in Myers, our Supreme Court recognized our statutes provided that the DENR may take such action as it may deem necessary to provide for the prevention and control of forest fires in any and all parts of this State. Id. at 467, 628 S.E.2d at 766-67 (quoting N.C. Gen. Stat. § 113-51(a) (2005) (emphasis omitted)). To execute this duty, the Secretary of the agency may appoint forest rangers, who in turn, shall prevent and extinguish forest fires and shall have control and direction of all persons and equipment while engaged in the extinguishing of forest fires. Id. at 467-68, 628 S.E.2d at 767 (quoting N.C. Gen. Stat. § 113-55 (2005) (emphasis omitted)). Thus, the agency and its divisions must make discretionary decisions for the allocation of limited resources to address statewide needs . . . made in furtherance of a statutory duty to - 3the citizens of North Carolina at large. 468, 628 S.E.2d at 767. Myers, 360 N.C. at The Myers Court reasoned that because our statutes impose a duty on the DENR to protect the citizens of North Carolina as a whole, the agency did not owe a specific duty to the plaintiffs. Id. at 468-69, 628 S.E.2d at 767 (further noting that two common law exceptions to the public duty doctrine were not raised by the plaintiffs and that the statutes at issue did not create a duty to protect a particular class of individuals, which could bar application of the doctrine); see Multiple Claimants v. N.C. Dep t of Health & Human Servs., 361 N.C. 372, 374, 646 S.E.2d 356, 358 (2007) (discussing the special relationship and special duty exceptions to the public duty doctrine). Here, the nature of the Department of Transportation s duty is no different. Mandated by statute and recognized by our courts, the DOT owes a duty to the general public . . . to plan, design, locate, construct and maintain the public highways in the State of North Carolina, with reasonable care. Phillips v. N.C. Dep t of Transp., 200 N.C. App. 550, 560, 684 S.E.2d 725, 732 (2009) (quoting finding by the North Carolina Industrial Commission and concluding it was consistent with the duty of the DOT as prescribed by section 143B-346 of our General Statutes); see N.C. Gen. Stat. § 136-45 (2009) (providing that - 4the DOT shall take over, establish, construct, and maintain a statewide system of hard-surfaced and other dependable highways . . . to relieve the counties and cities and towns of the State of this burden ). The majority acknowledges the DOT s directive, but concludes the DOT has no underlying discretionary decision process that warrants protection by the public duty doctrine. Our courts, however, have previously recognized the discretion the DOT must exercise to determine how best to design and maintain our roads. See Drewry v. N.C. Dep t of Transp., 168 N.C. App. 332, 338, 607 S.E.2d 342, 346-47 ( The [DOT] is vested with broad discretion in carrying out its duties and the discretionary decisions it makes are not subject to judicial review unless [their] action is so clearly unreasonable as to amount to oppressive and manifest abuse. (citation omitted) (second alteration in original), disc. review denied, 359 N.C. 410, 612 S.E.2d 318 (2005). recognized the limited Additionally, as our Supreme Court resources of the North Carolina Department of Labor in Stone v. N.C. Dep t of Labor, 347 N.C. 437, 481, 495 S.E.2d 711, 716, cert. denied, 119 S. Ct. 540, 142 L. Ed. 2d 449 (1998), it cannot reasonably be doubted that the DOT has decisions finite for resources, the which allocation of necessitates those discretionary resources. Thus, I - 5conclude the justification for the public duty doctrine applies in the present recognizes that case: the By limiting legislative and liability, executive the rule branches must often allocate limited resources for the benefit of the public at large and statutory permits responsibilities overwhelming liability. 766. governmental entities without to incurring carry out risk of Myers, 360 N.C. at 466, 628 S.E.2d at Or, as expressed by our Supreme Court in Stone, [i]t is better to have such laws, even haphazardly enforced, than not to have them at all. 347 N.C. at 481, 495 S.E.2d at 716 (citation and quotation marks omitted). In addition to concluding the DOT exercises no discretion in fulfilling its statutory duty, the majority concludes the public duty allege the doctrine DOT s does not negligence apply was here its because failure to plaintiffs repair the highway, not a failure to prevent harm by an outside force, a hazard[] created by others. Failure to prevent harm from an external force is a feature common to all claims justifying application of the public duty doctrine. See Strickland v. Univ. of N.C. at Wilmington, __ N.C. App. __, __, 712 S.E.2d 888, 892 (2011) ( In all cases where the public duty doctrine has been held applicable, the breach of the alleged duty has involved the governmental entity s negligent control of an - 6external injurious force or of the effects of such a force. (footnote omitted)). The Strickland Court concluded the public duty doctrine was not applicable in that case, and held the defendants liable, in part because the defendant-police department s breach of duty was in negligently providing the injurious force (inaccurate information regarding the suspect of a criminal investigation), which caused the police to fatally wound the victim. Id. It was not a case of negligently failing to prevent harm from an external injurious force. I conclude distinguishable aligned with the from the Id. injurious that force in in force at Strickland Myers. In issue and is Myers, here more the is closely plaintiffs alleged the defendants negligently failed to control a forest fire or to make safe the highway obscured by smoke from the fire. 360 N.C. at 462, 628 S.E.2d at 763. allege the DOT negligently failed to Here, plaintiffs repair a defectively eroded section of a highway made worse by other vehicles. In both by situations, external natural forces compounded here external manmade forces caused conditions that State agencies failed to control, with tragic consequences. Furthermore, failed to while prevent in both plaintiffs instances harm, the State causation is agencies not the - 7relevant focus applies. doctrine in determining if the public duty doctrine Indeed, this Court has held that the public duty only Strickland, __ applies N.C. to App. duty at and __ n.4, not 712 causation . . . . S.E.2d at 893 n.4 (citing Drewry, 168 N.C. App. at 337 38, 607 S.E.2d at 346 47). As the name suggests, the defendant s duty or more accurately, the lack of a duty to the plaintiff is the determinative factor in applying the public duty doctrine. Estate of Burgess v. Hamrick, __ N.C. App. __, __, 698 S.E.2d 697, 701, disc. review denied, __ N.C. __, 703 S.E.2d 444 (2010) ( In a claim for negligence, there must exist a legal duty owed by a defendant to a plaintiff, and in the absence of any such duty owed the injured party by the defendant, there can be no liability. . . . [W]hen the public duty doctrine applies, the government entity, as the defendant, owes (citations omitted)). no legal duty to the plaintiff. Here, plaintiffs do not argue that the two common law exceptions to the application of the public duty doctrine apply. Therefore, because the DOT owes a recognized duty to the general public and not to plaintiffs individually, I must conclude plaintiffs have failed to state claims in negligence. See Myers, 360 N.C. at 463, 628 S.E.2d at 764 ( If the plaintiff alleges negligence by failure to carry out a recognized public - 8duty, and the State does not owe a corresponding special duty of care to the plaintiff individually, then failed to state a claim in negligence. ) the plaintiff has Accordingly, I would affirm the order of the Industrial Commission.

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