JAMES DREWRY, Administrator of the Estate of ROGER McKINLEY
DREWRY, Deceased, Plaintiff, v. NORTH CAROLINA DEPARTMENT OF
Filed: 1 February 2005
Tort Claims Act--negligence_-maintenance of public highways--standing water on roadway
The Industrial Commission did not err by dismissing plaintiff's negligence action against
defendant Department of Transportation (DOT) and two of its employees based on its findings of
fact that there was no evidence of a standard of care required by DOT for design and maintenance
of water flow vis-a-vis public roads such as N.C. Highway 217 and that there was no evidence in
the record that the water was backed up from the area of the pertinent pipe due to the water having
entered the roadway from the pertinent field, because: (1) while plaintiff's expert evidence may have
indicated a 42-inch pipe should have been installed, it fails to indicate a standard of care or duty
required by DOT to install a 42-inch pipe; (2) the evidence shows that the silt from the recently
disked field caused the drain pipe to clog, which in turn, caused water to flow across the highway
as opposed to the drain in the ditch; and (3) in addition to failing to prove that DOT owed a specific
duty or that it breached any duty, plaintiff's evidence did not show that DOT's failure to install a
42-inch drainage pipe proximately caused plaintiff decedent's accident.
Appeal by plaintiff from opinion and award filed 30 July 2003
by the North Carolina Industrial Commission. Heard in the Court of
Appeals 26 May 2004.
Attorney General Roy Cooper, by Special Deputy Attorney
General Robert T. Hargett, for the State.
Reid, Lewis, Deese, Nance & Person, by James R. Nance, Jr.,
(See footnote 1)
(plaintiff) appeals from an opinion and award ofthe Full Commission (Commission) filed 30 July 2003 dismissing
plaintiff's negligence action against the North Carolina Department
of Transportation (NCDOT) and two of its employees.
This case was heard before a Deputy Commissioner on 14 October
2002. Defendant's motion to dismiss a
t the close of plaintiff's
evidence was granted and an order was filed on 1 November 2002.
Upon appeal, the Commission made the following findings to which
the plaintiff assigns no error
(See footnote 2)
1. On April 15, 1996, at approximately 9:15
p.m., one to two inches of water was standing
in a 90-100 foot long pond on North Carolina
Highway 217, (N.C. 217), 0.8 miles south of
Linden in Cumberland County. The weather
records from nearby monitoring stations show
that it had rained heavily, up to two inches
that day. The evidence shows that silt from
an adjacent field, which had been recently
disced for farming, had washed out of the
field and clogged a drainage ditch that ran
parallel to the roadway. This caused water to
flow across the roadway instead of down the
ditch to a highway drainpipe under the roadway
and created the aforementioned pond.
2. On April 15, 1996, the decedent, Roger
Drewry, was driving his 1995 Pontiac Trans Am
V-8 Convertible. Plaintiff-decedent left home
and with a passenger, Lee Morgan, and drove to
Fayetteville, North Carolina. After shopping,
plaintiff-decedent and Mr. Morgan returned to
Linden. After leaving U.S. 401 [N]orth,plaintiff-decedent and Mr. Morgan proceeded
down N.C. 217 [N]orth towards Linden at 50 to
55 miles per hour. Plaintiff-decedent ran
into the standing water, lost control of his
car, left the roadway and overturned.
Plaintiff-decedent and Mr. Morgan were thrown
from the vehicle and pinned underneath it.
Mr. Morgan freed himself; however, even with
the help of two others who stopped to assist,
he could not free plaintiff-decedent.
Plaintiff-decedent died at the scene of the
accident. Trooper Minchew with the Highway
Patrol investigated the accident and testified
that standing water and driver's speed were
contributing causes to the accident.
3. On July 3, 1995, Mr. Denning contacted the
[NCDOT] concerning standing water problems on
N.C. 217 at the scene of the subsequent
accident. Thomas Burchell, a DOT
Transportation Supervisor III in charge of
roadway maintenance for that area responded.
Mr. Burchell investigated the complaint and
determined the ditch had silted in and
following [NCDOT] practice determined that the
ditch needed to be cleared and a berm built.
On July 3, 1995, while investigating Mr.
Denning's complaint Mr. Burchell took a video
of the area. Mr. Burchell later showed the
video to his supervisor Hugh Matthews who
concurred with Mr. Burchell's remedial
4. Records reflect that Mr. Burchell's crew
members as of August 21, 1995 had completed
the remedial work. Mr. Burchell periodically
checked the area to see if the action which
had been taken to correct the problem had its
desired effect. Mr. Burchell believed that it
did and [NCDOT] received no further complaints
of drainage problems in that area until after
plaintiff-decedent's accident on April 15,
1996. While plaintiff presented witnesses who
testified that they encountered standing water
on N.C. 217, no one notified [NCDOT] of the
problems they encountered.
5. Plaintiff contends that the reason water
was standing on the roadway was that a twenty-
four inch drainage pipe located approximately
one hundred feet down from the silted-over
ditch was inadequate to handle the amount of
water from the rainfall which occurred on the
date of the accident. Plaintiff's hydrology
expert, James A. Spangler, II, testified that
the drainage area into the ditch and pipe
located adjacent to and under N.C. 217 was
thirty-one acres plus or minus and included
cultivated land. Mr. Spangler testified that
[NCDOT] regulations indicate in some instances
that oversized piping can or should be used in
order to allow for obstructions. However, the
twenty-four inch pipe was some distance from
the silted area of the ditch which caused the
flooding. Further, Mr. Spangler testified
that the twenty-four inch pipe, had it been
unobstructed, was adequate to handle the flow
of water which fell on April 15, 1996
(See footnote 3)
6. Robert Godwin, the fire chief of Linden,
responded to the emergency call for [the]
accident. Mr. Godwin spoke with the passenger
Lee Morgan at the scene of the accident. Mr.
Morgan stated to Mr. Godwin that he (Morgan)
had come through the same area of N.C. 217
about twenty minutes before the accident
occurred. Mr. Godwin further testified that
whenever he noticed water hazards in the
roadway he would contact the Cumberland County
Emergency Operations Center, but he never
directly contacted DOT.
. . .
9. [NCDOT] had no prior notice of N.C. 217
being flooded on April 15, 1996 prior to the
accident that killed plaintiff-decedent.
The Commission also found as fact the following, to which plaintiffdid assign error:
7. Plaintiff-decedent and Mr. Morgan had
passed through the flooded area in question
approximately twenty minutes prior to the time
of the accident in question here and were
aware that the road was flooded prior to the
8. Plaintiff has failed to offer any evidence
as to what relevant [NCDOT] regulations and
standards require as to design and maintenance
of roads such as N.C. 217 including the design
and control of water flow.
. . .
10. In this situation, the problem was not the
drainage pipe but the area where the water ran
out of the field into the ditch. Plaintiff
presented no testimony that the water after
running out of the field was backed up from
the point of entering the ditch down to the
location of the pipe running under the
roadway, but that the water ran directly out
of the field into the roadway. Plaintiff
presented no testimony that the water was
ponded at the location of the pipe under the
roadway. Plaintiff presented no testimony as
to whether the ditch was properly designed or
negligently designed or maintained. Plaintiff
only presented testimony that water was in the
roadway. Plaintiff offered no standard to
compare and determine whether there was
negligence on the part of defendant in
maintaining N.C. 217.
Based on these findings, the Commission concluded that
plaintiff: (1) failed to prove his case by the greater weight of
the evidence with respect to the standard of care or duty owed by
NCDOT or their employees to either plaintiff-decedent or the
public; and (2) failed to prove his case by the greater weight ofthe evidence that
NCDOT's actions were the proximate or the
contributing cause of the accident or injuries to plaintiff-
decedent. Further, the Commission concluded that plaintiff-
decedent was contributorily negligent by having driven in the same
location twenty minutes prior to the accident and failing to take
driving precautions of a reasonable person given the known road and
weather conditions. Plaintiff appeals from the opinion of the
The dispositive issue for our review is whether the Commission
erred in findings of fact #8 and #10, respectively, that there was
no evidence of a standard of care required by NCDOT for design and
maintenance, nor evidence that the water was backed up from the
area of the pipe, due to water having entered the roadway from the
Plaintiff first argues the Commission erred in findings of
fact #8 and #10 that there was no evidence of a standard of care
required by NCDOT for design and maintenance of water flow vis-a-
vis public roads such as N.C. Highway 217. In a related assignment
of error, plaintiff argues the Commission erred in findings of fact
#10 that there was no evidence in the record that the water was
backed up from the area of the pipe, due to the water having
entered the roadway from the field. In these two assignments of
error, plaintiff is essentially arguing that NCDOT's failure toinstall a 42-inch drainage pipe proximately caused Drewry's
accident. We disagree.
The [NCDOT] is subject to a suit to recover damages for death
caused by its negligence only as is provided in the Tort Claims
Act. Davis v. Highway Commission
, 271 N.C. 405, 408, 156 S.E.2d
685, 687 (1967). The Tort Claims Act states in part, the
Industrial Commission shall determine whether or not each
individual claim arose as a result of the negligence of any
officer, employee . . . 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) (2003).
Our Court has previously ruled on the standard of review for
tort claims from the Commission. Under the Tort Claims Act, 'when
considering an appeal from the Commission, our Court is limited to
two questions: (1) whether competent evidence exists to support the
Commission's findings of fact, and (2) whether the Commission's
findings of fact justify its conclusions of law and decision.'
Smith v. N.C. Dep't of Transp.
, 156 N.C. App. 92, 97, 576 S.E.2d
345, 349 (2003) (quoting Fennell v. N.C. Dep't of Crime Control &
, 145 N.C. App. 584, 589, 551 S.E.2d 486, 490 (2001));
N.C.G.S. § 143-293 (2003). Our Supreme Court has explained the
role of appellate courts in cases appealed from the North Carolina
Industrial Commission holding, an appellate court does not havethe 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. Deese v. Champion Int'l Corp.
, 352 N.C. 109, 115, 530
S.E.2d 549, 552 (2000) (citation omitted).
Under the Tort Claims Act, N.C. Gen. Stat. § 143-291(a)
(2003), negligence is determined by the same rules as those
applicable to private parties. Plaintiff must show that (1)
defendant failed to exercise due care in the performance of some
legal duty owed to plaintiff under the circumstances; and (2) the
negligent breach of such duty was the proximate cause of the
injury. Woolard v. N.C. Dept. of Transportation
93 N.C. App.
214, 217, 377 S.E.2d 267, 269 (1989) (quoting Bolkhir v. N.C. State
, 321 N.C. 706, 709, 365 S.E.2d 898, 900 (1988)).
Additionally, under the Tort Claims Act:
[T]he burden of proof as to [negligence is]
the plaintiff. Evidence is usually not
required in order to establish and justify a
finding that a party has failed to prove that
which he affirmatively asserts. It usually
occurs and is based on the absence or lack of
Bailey v. N.C. Dept. of Mental Health
, 2 N.C. App. 645, 651, 163
S.E.2d 652, 656 (1968); Viar v. N.C. DOT
, 162 N.C. App. 362, 364,
590 S.E.2d 909, 912 (2004) (The plaintiff has the burden of proof
on the issue of negligence.); Griffis v. Lazarovich
, 161 N.C. App.
434, 443, 588 S.E.2d 918, 924 (2003) (negligence was not presumedfrom the mere happening of an accident . . . [when the plaintiff]
failed to meet [his] burden of proving negligence).
In examining whether NCDOT failed to meet the standard of care
owed to a plaintiff, we note that our Supreme Court has held that
the public duty doctrine applies to causes of action under the Tort
The general common law rule provides that
governmental entities, when exercising their
statutory powers, act for the benefit of the
general public and therefore have no duty to
protect specific individuals.
governmental entity owes no particular duty to
any individual claimant, it cannot be held
liable for negligence for a failure to carry
out its statutory duties. Absent a duty, there
can be no liability.
Stone v. N.C. Dept. of Labor
, 347 N.C. 473, 482, 495 S.E.2d 711,
716 (1998) (internal citations omitted) (emphasis supplied).
The NCDOT possesses the statutory authority to plan,
construct, maintain, and operate the system of public highways in
this State. N.C. Gen. Stat. § 143B-346 (2003); C.C.T. Equipment
Co. v. Hertz Corp.
, 256 N.C. 277, 282, 123 S.E.2d 802, 806 (1962).
The NCDOT 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. State Highway
Comm'n v. Greensboro City Bd. of Education
, 265 N.C. 35, 48, 143
S.E.2d 87, 97 (1965).
In the instant case,
the evidence shows that at some point
prior to July 1995, NCDOT installed a 24-inch drain pipe in the
ditch along N.C. Highway 217.
Plaintiff offered into evidence the
steps taken by NCDOT in July 1995 after a farmer, Mr. Denning
notified the agency of standing water on N.C. Highway
employee, Thomas Burchell, testified that he surveyed, video-taped
and conferred with his supervisor as to the recommended measures to
take in order to eliminate standing water on the roadway. The
repairs included clearing ditches and putting in an earthen berm.
Burchell drove by the site on occasion to observe
the repairs. The NCDOT received no further complaints of standing
water until plaintiff-decedent's accident which occurred
on 15 April 1996
at about 9:15 p.m. after a heavy rain.
In attempting to show evidence of a standard of care requiring
a 42-inch drain pipe, plaintiff points to certain testimony in the
record. Plaintiff's expert hydrologist James Spangler testified as
to different methods that NCDOT may use in determining drain pipe
size based on variable amounts of rainfall. Spangler stated that
he used a method called the TR-55 method to study the 24-inch
's capacity to carry water run-off based on a 25-year
(See footnote 4)
, while acknowledging that there are four differentmethodologies used to calculate water flow. Spangler testified
that our calculations show that a two inch rainfall event would
have been carried efficiently by the 24-inch culvert that existed
out there had it not been blocked. While plainti
evidence may have indicated a 42-inch pipe should have been
installed, it fails to indicate a standard of care or duty
by NCDOT to install a 42-inch pipe. Therefore it appears the
Commission's findings, that plaintiff presented insufficient
evidence to establish NCDOT's standard of care, are supported by
Plaintiff also argues the Commission erred in finding of fact
#10 when it found there was no evidence the water was backed up
from the pipe. We disagree. T
he evidence shows that the silt
build-up that created the flooding on the roadway came from a
combination of the farmer's discing the field and the heavy
rainfall. In other words, standing water in the highway occurred
when the adjacent, silt-clogged ditch, prevented excess water from
reaching the drainage pipe. Both water and silt were observed in
the clogged drain pipe as the recently exposed soil filled the
ditch with silt which then caused excess water to run onto the
Plaintiff's expert Spangler testified in some instances that
oversized piping can or should be used in order to allow forobstructions. However, the 24-inch pipe was some distance away
from the silted area of the ditch which caused the flooding.
Further, Spangler testified the 24-inch pipe, had it been
unobstructed was adequate to handle the flow of water which fell on
April 15, 1996.
We note the unchallenged findings of the
Commission indicating that silt from the recently disced field
cause the drain pipe to clog, which in turn, caused water to flow
across the highway as opposed to the drain in the ditch.
Therefore, there is sufficient competent evidence to support the
Commission's findings of fact #10.
In addition to failing to prove that NCDOT owed a specific
duty or that it breached any duty, plaintiff's evidence did not
show that the NCDOT's failure to install a 42-inch drainage pipe
proximately caused Drewry's accident.
Proximate cause is a cause which in natural
and continuous sequence, unbroken by any new
and independent cause, produced [a]
plaintiff's injuries, and without which the
injuries would not have occurred, and one from
which a person of ordinary prudence could have
reasonably foreseen that such a result, or
consequences of a generally injurious nature,
was probable under all the facts as they
, 93 N.C. App. at 218, 377 S.E.2d at 270 (1989) (quoting
Hairston v. Alexander Tank & Equipment Co.
, 310 N.C. 227, 233, 311
S.E.2d 559, 565 (1984)).
Plaintiff offered no evidence tending to show that plaintiff-decedent Drewry could or would have survived the accident had the
42-inch drainage pipe been installed.
Plaintiff's evidence here
lacked key facts to meet his burden of proving that NCDOT's actions
were the proximate cause of the accident. See Bailey
, 2 N.C. App.
645, 651, 163 S.E.2d 652, 656 (1968).
NCDOT received notice of the
flooded roadway in 1996 only after
after having repaired, maintained and inspected the
area for the year prior. Upon learning of Drewry's accident, NCDOT
revisited the scene noting the farmer had again disced the field
and the previously installed berm from 1995 was no longer in place.
Here, the Commission concluded, based on the lack of plaintiff's
evidence as to NCDOT's standards required to maintain the highway,
and the facts showing an independent cause of the water flooding
the road, plaintiff failed to meet his burden of proving NCDOT's
negligence. Therefore, we find the Commission made adequate
findings of fact to support such a conclusion. Plaintiff also
challenges the Commission's finding of fact #7. Because this
finding of fact concerns contributory negligence, and as we have
determined the Commission did not err in dismissing plaintiff's
negligence action, it is not necessary to address this issue.
We affirm the Commission's opinion and award dismissing
plaintiff's negligence action.
Judges TYSON and STEELMAN concur.