MacKey v. NORTH CAROLINA STATE HIGHWAY COM'N

167 S.E.2d 524 (1969)

4 N.C. App. 630

Mrs. Dova MACKEY v. NORTH CAROLINA STATE HIGHWAY COMMISSION.

No. 6930IC29.

Court of Appeals of North Carolina.

May 28, 1969.

*526 Robert Morgan, Atty. Gen., by Harrison Lewis, Deputy Atty. Gen., for Highway Commission, defendant appellant.

Bennett, Kelly & Long, by E. Glenn Kelly, Asheville, for plaintiff appellee.

BROCK, Judge.

Defendant assigns as error, and in its brief strenuously argues, that there was no evidence of record to support the determination of the Full Commission that the named employee of the defendant committed a negligent act so as to allow plaintiff to recover under the State Tort Claims Act.

"The findings of fact by the Industrial Commission are conclusive if there is any competent evidence to support them. G.S. § 143-293." Mitchell v. Guilford County Board of Education, 1 N.C.App. 373, 161 S.E.2d 645.

We hold that the facts found by the Full Commission are supported by competent evidence and that they are sufficient to support the action of the Full Commission in concluding that there was a negligent act on the part of defendant's employee Elmer Head and that such negligent act was the proximate cause of the injury and damages sustained by plaintiff.

Under the State Tort Claims Act recovery is permitted for injuries resulting from a negligent act, but not those resulting from a negligent omission on the part of State employees. G.S. § 143-291; Flynn v. North Carolina State Highway and Public Works Commission, 244 N.C. 617, 94 S.E.2d 571. In Flynn the claim denied was based upon the alleged negligent failure of named employees of the State to repair a hole or break in the surface of a State road caused by public travel over it. "In order to authorize the payment of compensation, the Industrial Commission's findings must include (1) a negligent act, (2) on the part of a State employee, (3) while acting in the scope of his employment, etc. The first requirement is that the claimant show a negligent act. Is a failure to repair a hole in the highway caused by ordinary public travel a negligent act? The requirement of the statute is not met by showing negligence, for negligence may consist of an act or an omission. Failure to act is not an act." Flynn v. North Carolina State Highway and Public Works Commission, supra.

We think the case at bar is clearly distinguishable on its facts from Flynn. The Full Commission found upon competent evidence that Elmer Head left at least eighteen holes open when he removed the posts therefrom and that such negligent act proximately caused plaintiff's injury and resulting damages. The removal of the posts created holes on the shoulder of the road. There was no negligent omission involved as the creation of a hole is an act, not an omission. One who undertakes to do something and does it negligently commits a negligent act, not a negligent omission.

In this case we are not concerned with a failure by defendant to maintain the shoulders of the highway in a safe condition for pedestrian travel; we are concerned here with the act of an agent of the Commission in negligently creating a trap, or pitfall, upon a shoulder of the highway which is apparently safe for pedestrian travel.

The opinion and award of the Full Commission is

Affirmed.

CAMPBELL and MORRIS, JJ., concur.