TA30718.doc

NORTH CAROLINA INDUSTRIAL COMMISSION
I.C. NO. TA-30718, CATHERINE SUSANNE CARTY-MURPHY, Plaintiff v. NORTH CAROLINA DEPARTMENT OF TRANSPORTATION, Defendant.  

DECISION AND ORDER for the Full Commission by KENNETH L. GOODMAN, Commissioner. 

Filed:  June 20, 2025

This matter was reviewed administratively by the Full Commission on December 12, 2024, pursuant to 11 NCAC 23B .310, upon Plaintiff's appeal of a Decision and Order filed by Senior Deputy Commissioner Robert J. Harris on June 10, 2024.   
A P P E A R A N C E S
	Plaintiff:	Pro se.
		
	Defendant:	North Carolina Department of Justice, Raleigh, North Carolina; Herman M. Little, Jr., Assistant Attorney General, Counsel of Record. 

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The Full Commission has reviewed the prior Decision and Order based upon the record of the proceedings before Senior Deputy Commissioner Harris, Plaintiff's Form T-44 Application for Review, and the parties' briefs.  The Full Commission hereby enters the following Decision and Order pursuant to N.C. Gen. Stat. § 143-292:
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EXHIBITS
	The following documents were accepted into evidence by the Deputy Commissioner as Exhibits:
Defendant's Exhibit #1 - Pre-Trial Agreement submitted by Defendant;
Defendant's Exhibit #2 - Letter dated February 15, 2023, from Emily M. Baucom, Clerk of the Industrial Commission, to Plaintiff, acknowledging receipt of Plaintiff's Form T-1 Affidavit filed on February 13, 2023;
Defendant's Exhibit #3 - Plaintiff's discovery answers and responses; 
Defendant's Exhibit #4 - Photographs of roadway and Plaintiff's car;
Defendant's Exhibit #5 - Plaintiff's itemized list of damages totaling $11,163.91;
Defendant's Exhibit #6 - Plaintiff's handwritten response to Defendant's Motions to Dismiss and Motion to Strike; and
Defendant's Exhibit #7 - Email from Plaintiff, dated October 21, 2022, to Defendant.

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	The Full Commission addresses the following:
ISSUE
Did Defendant breach a duty of care owed to Plaintiffs that proximately resulted in damage to Plaintiff? 	
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Based upon the preponderance of the evidence in view of the entire record, and reasonable inferences flowing therefrom, the Full Commission makes the following: 
FINDINGS OF FACT 
On February 13, 2023, Plaintiff filed a Form T-1 Claim for Damages Under Tort Claims Act alleging damages resulting from the negligent conduct of employees of Defendant.  Specifically, Plaintiff's Form T-1 alleges that on October 11, 2022, she was traveling north on Highway 751 in Chatham County, when an oncoming vehicle traveling south appeared to veer into her lane of traffic.  Plaintiff's T-1 further alleges that she "moved [her vehicle] slightly to the right and ended in a very deep drop off which [her] car could not get out of . . . [then her] car went across the street and ended up in the ditch."  As a result of this incident, Plaintiff contends that her vehicle, a Mazda Miata, was towed, and she sustained damages totaling $11,163.91 resulting from this incident.  
The DMV-349 Crash Report Form completed by Trooper C.J. Walker of the North Carolina State Highway Patrol on October 11, 2022, indicates that Plaintiff's car was traveling north on Highway 751, "ran off the road to the right, overcorrected and crossed centerline . . . [and] then ran off the road to the left and struck a ditch."  The diagram shows that this portion of Highway 751 is a two-lane highway with a double yellow centerline.  Plaintiff was given a citation for failure to maintain her lane of traffic. 
On November 1, 2022, Plaintiff filed a North Carolina Department of Transportation Citizen Incident Statement ("Incident Statement").  Plaintiff's Incident Statement states that, on October 11, 2022, at 8:30 a.m., she was driving north on Highway 751 when an oncoming black vehicle "started to go over line to my [lane of traffic]."  Plaintiff states that she "had to move over to the right a little to avoid hitting the other vehicle" and the "[n]ext thing [she] knew, [she] was spinning in the street and ended up on the other side."  According to Plaintiff's Incident Statement, she believes the "ditches, drops from the side of the road" are "dangerous" and should be repaired and "filled in."   
Plaintiff's answers to Defendant's First Set of Written Interrogatories, contend that this portion of Highway 751 is corroded with "black patches" on both sides of the highway.  Plaintiff's answer further states that the weather was sunny and clear, and the roadway was dry.  
As a result of this incident, Plaintiff contends that she incurred the following expenses: 
$928.00 in lost wages,
$516.00 to repair her radiator, 
$200.00 to file her claim with the Industrial Commission,
$7,199.85 for automotive body repairs, 
$256.67 for tire rim damage,
$1,101.00 for towing expenses,
$368.00 for tires,
$106.40 for tire alignment,
$487.99 for front bumper repair, and
$60.00 for hearing costs before the Industrial Commission.

These expenses total $11,163.91.  

At the hearing before Senior Deputy Commissioner Harris, Plaintiff was the sole witness.  Plaintiff testified that, on the morning of the incident, she was driving her usual route to work, travelling the speed limit (i.e. 55 miles per hour), the weather was clear, and the conditions were normal.  However, as Plaintiff approached a bend in the road, she observed a pickup truck coming around the curve and encroaching into her lane.  In response, Plaintiff testified that she moved slightly off the road to avoid a potential collision and sounded her horn.  As she attempted to return to the roadway, her Miata lost traction, spun out, and crossed the street, ultimately coming to rest on the opposite side.  Plaintiff testified that the entire event occurred suddenly and rapidly, resulting from Plaintiff's evasive maneuver to avoid the oncoming truck.  After the incident, the black truck kept traveling and the identity of the truck and its driver are unknown.
Plaintiff testified that, in her opinion, if the condition of the road shoulder had been properly maintained and repaired, she would have been able to safely maneuver off the roadway to avoid the oncoming truck and then re-enter the road without incident.  Plaintiff further testified that the shoulder of Highway 751 had eroded over time to create a drop-off along the section of road where she was traveling when she swerved.  Plaintiff believes that the inadequate condition of the road contributed to her inability to regain control of her vehicle and safely return to the roadway.
According to Plaintiff, as a result of this incident, her vehicle sustained damage to the front body, necessitating the replacement of the front bumper.  Additionally, the entire bottom tray of the vehicle was ripped out and required full replacement, and the radiator was punctured with a large hole and had to be replaced.  Plaintiff further testified that her vehicle then needed new tires and a tire alignment. 
Based upon a preponderance of the evidence in view of the entire record, the Full Commission finds that Plaintiff has failed to prove the essential elements of negligence in this claim.  Specifically, Plaintiff has presented insufficient evidence that Defendant's maintenance of Highway 751 in Chatham County, at or around the time of Plaintiff's accident, was unreasonable, or that Defendants had actual or constructive notice of any alleged road defect(s) along Highway 751 in Chatham County at, or around, the time of Plaintiff's accident of October 11, 2022.  In reaching this finding, the Commission considers the lack of any evidence showing prior accidents involving this portion of Highway 751, and lack of expert testimony establishing that Defendant failed to act with reasonable care in the planning, design, construction, inspection, or maintenance of the area of Plaintiff's accident. 
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Based upon the foregoing Stipulations and Findings of Fact, the Full Commission makes the following:
CONCLUSIONS OF LAW
The State Tort Claims Act 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) (2023).  Such claims are heard and decided by the North Carolina Industrial Commission.  Id.
Under the Tort Claims Act, negligence is determined by the same rules applicable to private parties.  Bolkhir v. N.C. State Univ., 321 N.C. 706, 709, 365 S.E.2d 898, 900 (1988).  A claimant must prove (1) the existence of a duty to him; (2) a breach of that duty by the defendant (the named employees thereof in a tort claim); (3) an injury sustained; (4) as a proximate result of the breach of that duty.  Gibson v. Ussery, 196 N.C. App. 140, 143, 675 S.E.2d 666, 668 (2009) (internal citation omitted).  "[U]nder the Tort Claims Act: 'the burden of proof as to negligence is on the plaintiff.'"  Drewry v. N.C. Dep't of Transp., 168 N.C. App. 332, 337, 607 S.E.2d 342, 346 (2005), review denied, 359 N.C. 410, 612 S.E.2d 318 (2005) (quoting Bailey v. N.C. Dep't of Mental Health, 2 N.C. App. 645, 651, 163 S.E.2d 652 (1968)).  "[T]he plaintiff must affirmatively, and by the greater weight of the evidence, prove that the defendant was negligent and that it proximately caused him injury."  Miller v. Henry, 270 N.C. 97, 99, 153 S.E.2d 798, 800 (1967).
In this case, the existence of a duty is established by statute: "[t]he general purpose of the Department of Transportation is to provide for the necessary planning, construction, maintenance, and operation of an integrated statewide transportation system for the economical and safe transportation of people and goods as provided for by law."  N.C. Gen. Stat. § 143B-346 (2023).  Consistent with this statute, the Department of Transportation's "duty to the general public is 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).  Although Defendant "is not an insurer of the safety of travelers" on the State's public highways, it has the duty
of exercising ordinary care to maintain [the public highways] in a condition reasonably safe for those who use them in a proper manner.  Liability arises only for a negligent breach of duty, and for this reason it is necessary for a complaining party to show more than the existence of a defect in the street … and the injury; he must also show that the [defendant] … knew, or by ordinary diligence, might have known of the defect, and the character of the defect was such that injuries to travelers using its street … in a proper manner might reasonably be foreseen.

Smith v. City of Hickory, 252 N.C. 316, 318, 113 S.E.2d 557, 558-59 (1960).

Given that Plaintiff alleges negligence in Defendant's maintenance of the roadway, there is an additional requirement, which has developed through case law, that Defendants had notice of the allegedly unsafe road condition.  The North Carolina Supreme Court has held:
[Defendant] however, is not held to warrant that the condition of its streets, etc., shall be at all times absolutely safe.  It is only responsible for negligent breach of duty, and, to establish such responsibility, it is not sufficient to show that the defect existed and an injury has been caused thereby.  It must be further shown that the officer of the town might have discovered the defect, and the character of the defect was such that injuries to travelers therefrom might reasonably be anticipated.  The happening of an injury does not raise the presumption of negligence.  There must be evidence of notice either actual or constructive.  The existence of a condition which causes injury is not negligence per se.  The doctrine of res ipsa loquitur does not apply in actions against municipalities by reason of injuries to persons using its public streets.

Smith v. City of Hickory, 252 N.C. 316, 318, 113 S.E.2d 557, 558-59 (1960).  In considering Defendant's liability for an alleged hazardous roadway drop-off following a recent resurfacing project, the North Carolina Court of Appeals held that Defendant cannot be held liable for a hazardous roadway condition absent having actual or constructive notice of the condition.  Phillips v. N.C. Dep't of Transp., 200 N.C. App. 550, 559-60, 684 S.E.2d 725, 732 (2009).  The Phillips Court also defined actual and constructive notice in this context:
[N]otice may be either actual, which brings the knowledge of a fact directly home to the party, or constructive, which is defined as information or knowledge of a fact imputed by law to a person (although he may not actually have it), because he could have discovered the fact by proper diligence, and his situation was such as to cast him the duty of inquiring into it.

Phillips, 200 N.C. App. at 558, 684 S.E.2d at 731 (quoting State v. Poteat, 163 N.C. App. 741, 746, 594 S.E. 253, 255-56, disc. review denied, 358 N.C. 548, 599 S.E.2d 915 (2004)).  In this case, given that there is no evidence of prior accidents involving this portion of Highway 751, the greater weight of the evidence in view of the entire record demonstrates that Defendant did not have actual or constructive prior notice of a dangerous condition.  Phillips, 200 N.C. App. at 558, 684 S.E.2d at 731.  
	5.	Given the facts of this case and the applicable law, Plaintiff has failed to prove that Defendant's decisions and actions regarding the planning, design, construction, inspection, and maintenance of the area of Plaintiff's accident on or about October 11, 2022, on Highway 751 in Chatham County were unreasonable, and/or that Defendants had actual or constructive notice that an alleged defect existed along this stretch of Highway 751 in Chatham County prior to October 11, 2022.  Smith, 252 N.C. 316, 318, 113 S.E.2d 557, 558-59; Phillips, 200 N.C. App. at 560, 684 S.E.2d at 732.  Therefore, Plaintiff has failed to meet her burden of showing that Defendant breached a duty which proximately caused injury.  Gibson, 196 N.C. App. at 143; 675 S.E.2d at 668.  
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Based upon the foregoing Findings of Fact and Conclusions of Law, the Full Commission enters the following:
O R D E R
Plaintiff's claim under the North Carolina Tort Claims Act is hereby DENIED and Plaintiff shall recover nothing from Defendant in this matter.
Plaintiff shall pay the hearing costs of $220.00 to the Commission upon receipt of this Order and/or an invoice regarding the same.
Vice-Chair GRIFFIN and Commissioner GILLEN concur.

 The Pre-Trial Agreement was submitted by Defendant to the Commission on February 23, 2024.  Plaintiff did not sign the Pre-Trial Agreement; however, Senior Deputy Commissioner Harris noted on the record at the hearing that Plaintiff was "fine with the pre-trial agreement as it has been filed . . . ."  
 The Commission notes that these expenses total a different figure (i.e. $11,223.91) than the amount listed by Plaintiff (i.e. $11,163.91).

I.C. NO. TA-30718	Page 30