ASHLEIGH SIMMONS, by and
through her Guardian Ad
Litem, HILTON SIMMONS,
Plaintiff,
v
.
N.C. Industrial Commission
No. TA - 15398
COLUMBUS COUNTY BOARD OF
EDUCATION
Defendant.
Britt & Britt, P.A., by Donald Bardes, for plaintiff-appellee.
Attorney General Roy Cooper, by Assistant Attorney General
Dahr Joseph Tanoury, for defendant-appellant.
ELMORE, Judge.
This case concerns a claim filed under the Tort Claims Act
against the Columbus County Board of Education (defendant). The
claim, heard by the Industrial Commission, involves a fight on a
school bus resulting in injuries to Ashleigh Simmons (plaintiff).
The Industrial Commission ruled in favor of plaintiff after a
finding that the bus driver was negligent for not stopping the
fight and that her negligence was a proximate cause of plaintiff's
injuries. Defendant appeals from this judgment. On 20 February 1995, plaintiff boarded her school bus driven
by Emma Ford-Williams (Williams) at Evergreen Elementary School in
Columbus County, North Carolina. Plaintiff, eleven years old, sat
four rows behind Williams. Prior to the bus leaving the school and
pulling onto the road, plaintiff called out to Williams that
another boy, Andre, was standing. Words were exchanged between
Andre and plaintiff and subsequently Andre's older brother, Jasper
Williams (Jasper) left his seat and began hitting plaintiff.
Jasper, an eighth grader, was over six-feet tall and weighed
between 175 to 200 pounds while plaintiff was only four feet tall
and weighed 124 pounds.
The facts, as determined by the Commission, are that the
attack began before the bus left the school and was noticed by
Williams prior to turning onto Old Highway 74. The distance
between the bus stop pick-up area (where students loaded onto the
buses to return home) and the intersection with Old Highway 74 was
approximately 230 feet. When Williams noticed the fight, she
responded by yelling behind her: “Y'all stop what you're doing.”
Although plaintiff initially defended herself, she eventually was
overpowered and knocked to the floor. It was then that Jasper
began to kick her repeatedly. According to the Commission's
findings, this escalation of the attack occurred as the bus turned
onto Old Highway 74. As the fight escalated, Williams decided to
return to the school which took, according to plaintiff's evidence,
about one and one-half minutes from the point that Williams noticed
the fight. When the bus returned to the school, Williams motionedfor a male teacher to enter the bus. The male teacher stopped the
attack. At no point did Williams attempt to stop the bus or
separate the fighting children. As a result of the attack,
plaintiff suffered a fractured mid-clavicle, hematoma above the
right eye, ecchymosis of the left eye, mild traumatic brain injury,
head pain, nightmares, and an atypical fear of large men. The
Industrial Commission found that Williams was negligent and held
defendant liable under the theory of respondeat superior. The
Commission awarded plaintiff $8,567.79 for medical expenses as well
as $34,000.00 for pain and suffering.
The standard of review for an appeal from the Full
Commission's decision under the Tort Claims Act “shall be for
errors of law only under the same terms and conditions as govern
appeals in ordinary civil actions, and the findings of fact of the
Commission shall be conclusive if there is any competent evidence
to support them.” N.C. Gen. Stat. § 143-293 (2003). As long as
there is competent evidence in support of the Commission's
decision, it does not matter that there is evidence supporting a
contrary finding. See Simmons v. N.C. Dept. of Transportation, 128
N.C. App. 402, 405, 496 S.E.2d 790, 793 (1998). “The court's duty
goes no further than to determine whether the record contains any
evidence tending to support the finding.” Anderson v. Construction
Co., 265 N.C. 431, 434, 144 S.E.2d 272, 274 (1965). Thus, “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'sfindings of fact justify its conclusions of law and decision.”
Simmons, 128 N.C. at 405-06, 496 S.E.2d at 793. Accordingly, we
will first review the record to determine if there is competent
evidence supporting the findings of the Full Commission challenged
by defendant.
Defendant first challenges the Commission's findings of fact
three and five on the grounds that there is no competent evidence
supporting them. We disagree. Findings three and five are:
3. On the afternoon of February 20, 1995, Ms.
[Williams] customarily drove on Evergreen
School Road to the stop sign at Old Highway
74. Prior to turning on to Old Highway 74,
Ms. [Williams] testified that she looked in
her mirror and noticed that plaintiff and
another student, Jasper Williams, were
“hitting each other back and forth.” At that
point, Ms. [Williams] yelled back: “Y'all stop
what you're doing.” Ms. [Williams] testified
that the students did not respond to her
command.
5. As the bus turned on to Old Highway 74 from
Evergreen School Road, Jasper Williams began
to hit plaintiff very hard on her body. Ms.
[Williams] neither stopped the bus nor took
any further action to address the escalating
situation; rather, she resumed driving the bus
and continued toward Haynes Lennon Road.
There is competent evidence in the record from which the Full
Commission could have inferred that Williams noticed the fight
prior to turning onto Old Highway 74 and that the fight escalated
as the bus turned onto Old Highway 74. Plaintiff testified that
she and Jasper began fighting prior to the bus turning onto Old
Highway 74. It is a reasonable inference that since the fight
began before the bus turned onto Old Highway 74 that the fight
escalated as the bus turned onto Old Highway 74 and that Williamsnoticed the fight prior to turning onto Old Highway 74. She did in
fact yell to the children to stop. Defendant argues that this is
not a reasonable inference because Williams testified that she did
not notice the fight until after turning onto Old Highway 74.
However, deciding among reasonable inferences remains the role of
the Commission and these inferences “may not be overturned on
appeal.” Norman v. N.C. Dep't Of Transp., 161 N.C. App. 211, 224,
588 S.E.2d 42, 51 (2003), cert. denied, 358 N.C. 545, 599 S.E.2d
404 (2004). Therefore, this Court accepts the Commission's
findings that Williams noticed the fight prior to turning onto Old
Highway 74 and that the fight escalated as the bus turned onto Old
Highway 74.
Defendant also contends that there is no competent evidence
supporting the Commission's finding number ten that states:
10. There is no evidence that Ms. [Williams]
could not locate a spot to pull over to the
side of the road safely to enable her to
restore order and safety on her bus. Because
Ms. [Williams] decided to return to the
school, instead of pulling the bus over
safely, Jasper Williams was given additional
time in which to continue severely beating
plaintiff. The Full Commission finds Ms.
[Williams's] decision to return to the school
instead of pulling off the roadway to restore
order on her bus to be a negligent breach of
the duty of care owed to plaintiff. The fact
that Ms. [Williams] yelled a solitary warning
command (“Y'all stop what you're doing.”)
toward the back of the bus simply does not
rise to the level of care owed to plaintiff.
As soon as [Ms. Williams] realized the fight
was continuing despite her warning command,
she should have taken immediate action to find
a safe place to pull over and restore order
and safety on her bus.
Defendant disputes that there was a safe place for Williams to stop
the bus and restore order. Indeed, Williams testified that she
could not pull into the parking lot of a gas station because it was
not a designated stop. However, Williams testified that in a
previous incident she stopped the bus in order to quell a fight
between Jasper and another female student. While Williams was
unable to remember whether or not she had stopped at a designated
stop, she did remember that after stopping the bus she was able to
successfully stop the incident. Further, there is some evidence of
an available safe place in which Williams could have stopped. The
principal, Mr. Fulk, testified that there was an area near the gas
station where she could have safely stopped the bus. Again, as
long as there is competent evidence in support of the Commission's
decision, it does not matter that there is evidence supporting a
contrary finding. See Simmons, 128 N.C. App. at 405, 496 S.E.2d at
793.
Because the challenged findings of fact are supported by
competent evidence, the only other form of review available to
defendant is for this Court to verify that the findings of fact
justify the Commission's conclusions of law. Id. at 405-06, 496
S.E.2d at 793. Defendant argues that the Commission's conclusions
of law are improper because (1) it was not reasonable for Williams
to pull off the roadway; (2) the Commission shifted a portion of
the burden of proof to defendant; (3) plaintiff was contributorily
negligent; and (4) Williams's actions did not proximately cause
plaintiff's injuries. According to N.C. Gen. Stat. § 143-291(a), it is up to the
Industrial Commission, as the trier of fact, to determine
negligence. The Industrial Commission
shall determine whether or not each individual
claim arose 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.
Id.
To prevail on a claim of negligence under the Tort Claims Act,
the plaintiff must establish: “(1) that [defendant] owed plaintiff
a duty of care under the circumstances; (2) that actions or
omissions by at least one of the named employees of [defendant]
constituted a breach of that duty; (3) that the breach was the
actual and proximate cause of plaintiff's injury; and (4) that
plaintiff suffered damages.” Davidson v. Univ. of N.C. at Chapel
Hill, 142 N.C. App. 544, 553, 543 S.E. 2d 920, 926 (2001).
“The standard of due care is always the conduct of a
reasonably prudent person under the circumstances. Although the
standard remains constant, the proper degree of care varies with
the circumstances.” Bolkhir v. N.C. State Univ., 321 N.C. 706,
709, 365 S.E.2d 898, 900 (1988) (internal citation omitted).
Therefore, the standard of due care in this case depends on the
determination of what a reasonably prudent bus driver would do to
stop Jasper's attack on plaintiff. This analysis includes a
consideration of the rules or safety standards that have been
adopted by the school system. “[W]here it appears that defendanthas voluntarily adopted the rules or safety standards as a guide
for the protection of the public, they are admissible as some
evidence that a reasonably prudent person would adhere to their
requirements.” Slade v. Board of Education, 10 N.C. App. 287, 296,
178 S.E.2d 316, 322 (1971). Defendant, by not excepting to the
Commission's finding of fact thirteen, agrees that “Ms. [Williams]
(as defendant's agent) had a duty to follow the rules of safety for
school bus drivers, as provided by the NC Department of
Transportation, when ensuring the safety and protection of the
students on her bus, including plaintiff.” The Commission's
finding of fact nine, also not excepted to by defendant, provides
an excerpt from a handbook given to bus drivers by the North
Carolina Department of Transportation. This excerpt gives some
guidance on how to handle cases of misbehavior. It states that a
“driver should: (1) select a safe place to pull off the roadway;
(2) restore order; and (3) report misbehavior to the principal, if
necessary.”
Defendant claims that it was not reasonable for Williams to
pull off the roadway, and therefore Williams had no duty to pull
off the roadway. It makes this claim by excepting to the
Commission's findings of fact twelve and fourteen:
12. The defendant has also argued that Ms.
[Williams's] decision to take no action
(absent a solitary warning command) toward
stopping the fight on the bus in favor of
returning to the school for help was
reasonable considering that the bus was only a
short distance (less than a half-mile) from
the school. However, Ms. [Williams] testified
that she would have acted in the same manner
even if the fight had occurred while the buswas 10 miles from the school. The Full
Commission finds this statement as evidence of
Ms. [Williams's] total disregard for, or
complete ignorance of, the rules of safety
established by the NC Department of
Transportation.
14. During the incident on February 20, 1995,
Ms. [Williams] breached the duty of care owed
to plaintiff by failing to follow safety
procedures that require her to pull over to
the side of the road safely to restore order
on her bus.
These two findings are “mixed questions of law and fact and so are
reviewable on appeal from the commission, the designations 'Finding
of Fact' or 'Conclusion of Law' by the commission not being
conclusive.” Martinez v. Western Carolina University, 49 N.C. App.
234, 239, 271 S.E.2d 91, 94 (1980).
In this case the findings of fact support the conclusion,
identified as finding number fourteen, that Williams did not meet
her duty to follow the rules of safety for school bus drivers.
First, the Commission found in finding number ten that there was a
safe place for Williams to pull off the roadway. Finding of fact
fifteen was that the prolonged and severe beating could have been
prevented had Williams immediately stopped the bus in a safe place
instead of returning to the school. Second, Williams's testimony
that she was able to stop Jasper's attack on another female student
by stopping the bus and separating the students supports this
conclusion. Last, Williams's testimony that she would have acted in
the same manner even if the incident occurred ten miles from the
school shows a disregard for the established rules. Nowhere in the
rules is there a discussion that returning to school as a firstresponse to fighting is reasonable. Although the Commission's
finding number twelve is sternly worded, it is within their
authority to weigh the evidence. There is competent evidence to
support these findings, and these findings support the Commission's
conclusion that Williams breached her duty to plaintiff.
Defendant also claims that the double negative “[t]here is no
evidence that Ms. [Williams] could not locate a spot to pull over
to the side of the road safely” implies that the Commission shifted
the burden of proof to defendant. However, the latter part of
finding of fact ten shows that the Commission did find that
plaintiff proved that there was a safe place to pull over, and as
stated previously, there is competent evidence supporting this
finding. Moreover, we interpret this finding's wording as a
determination that defendant's evidence did not refute the evidence
presented by plaintiff, which was that there was a safe place to
stop the bus.
Because the Commission found that there was a safe
place available for Williams to stop the bus, defendant's argument
that the Commission shifted the burden of proof does not stand.
The Commission's findings of fact also support its conclusions
of law that Williams's breach was a proximate cause of the
plaintiff's injuries. While this conclusion is listed as finding
of fact fifteen, this Court is not bound by the Commission's
classification and in this instance finds the finding to be a
conclusion of law. The “conclusion” made by the Commission is:
15. The breach of duty proximately caused
plaintiff to be subjected to a prolonged and
severe beating at the hands of Jasper
Williams, which could have been prevented hadMs. [Williams] taken immediate action to pull
over and restore order on her bus instead of
driving back to the school.
As stated above, Williams knew from a previous incident that she
was able to prevent Jasper from further injuring another student by
stopping the bus in a safe place and separating the two students.
Instead of repeating this previously successful action, Williams
continued to drive the bus with only one verbal warning directed at
Jasper. Her failure to take any action in this case allowed the
fight to escalate to the point that Jasper succeeded in knocking
the plaintiff to the ground and kicking her for the remainder of
the bus ride back to school. Thus, Williams, by allowing the fight
to continue in time and severity, was a proximate cause of
plaintiff's severe injuries.
Defendant contends that there was contributory negligence on
the part of the eleven-year-old plaintiff that prevents her from
the recovery of damages. Section 143-299.1 does deem contributory
negligence to be a defense, but “the State department, institution
or agency against which the claim is asserted . . . [has] the
burden of proving that the claimant or the person in whose behalf
the claim is asserted was guilty of contributory negligence.” N.C.
Gen. Stat. § 143-299.1 (2003). Here, defendant did not meet that
burden. In North Carolina, children between the ages of seven and
fourteen are presumed to be incapable of contributory negligence.
See Weeks v. Barnard, 265 N.C. 339, 340, 143 S.E.2d 809, 810
(1965). “This presumption, however, may be overcome by evidence
that the child did not use the care which a child of its age,capacity, discretion, knowledge, and experience would ordinarily
have exercised under the same or similar circumstances.” Id.
(citation omitted). The plaintiff in this case was eleven years
old, and thus is presumed incapable of contributory negligence.
Defendant offered no evidence that plaintiff did not handle herself
as a normal eleven-year-old girl. As such, the Commission did not
err in finding negligence on Williams's part without finding any
negligence on plaintiff's part.
This Court finds that there was competent evidence for the
Commission's findings of fact and that the findings of fact support
the Commission's conclusions of law. Thus, the Commission's
decision and order is affirmed.
Affirmed.
Judges WYNN and TYSON concur.
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