An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NORTH CAROLINA COURT OF APPEALS
Filed: 6 September 2005
DONNA WALKER, Administratrix of the
Estate of LARRY WALKER,
N.C. DEPARTMENT OF TRANSPORTATION, I.C. No. TA-16103
Appeal by defendant from an opinion and award filed 8 June
2004 by the North Carolina Industrial Commission. Heard in the
Court of Appeals 22 April 2005.
D. Keith Teague, P.A., by Danny Glover, Jr., for plaintiff
Attorney General Roy Cooper, by Assistant Attorney General
Richard L. Harrison, for North Carolina Department of
Transportation defendant appellant.
Defendant, the North Carolina Department of Transportation
(DOT), appeals from a decision of the North Carolina Industrial
Commission awarding compensation to plaintiff, the administratrix
of the estate of Larry Walker, under the North Carolina Tort Claims
Act, N.C. Gen. Stat. § 143-291, et seq. We affirm.
On the afternoon of 20 August 1997, decedent Larry Walker was
traveling south on N.C. Highway 343 in Camden County, North
Carolina when, due to wet road conditions, his Ford Ranger losttraction with the road, spun off the highway, and traveled eighty-
six feet before striking a concrete bridge piling. Regrettably,
Walker died as a result of this accident. The Walker accident was
the second fatal accident to occur in this location of Highway 343
in six days. On 14 August 1997, a vehicle occupied by Luke Denison
and Rebecca Gundersen lost traction with the road following a heavy
downpour and struck a concrete bridge piling, resulting in the
deaths of both Denison and Gundersen.
On 13 July 1999, the administratrix of Walker's estate filed
a claim for damages against DOT under the North Carolina Tort
Claims Act. The claim asserted that DOT Division Engineer Don
Conner, DOT Division Maintenance Engineer Anthony W. Roper, and DOT
District Engineer Jerry D. Jennings had been negligent by
permitting Highway 343 to collect an excessive and unreasonably
deep pond of water in [the] travel lanes of the roadway, by
failing to install guardrails between N.C. Highway 343 and the
concrete bridge piers which Walker had struck, and by failing to
install advisory signs warning motorists of the dangerous roadway
conditions. DOT contested the claim and asserted, as its sole
affirmative defense, Walker's alleged contributory negligence.
Specifically, DOT asserted that Walker had negligently failed to
reduce his speed given the wet road conditions, failed to equip his
vehicle with rear tires having sufficient tread, and failed to keep
proper control of his vehicle.
The evidence presented to the Industrial Commission tended to
show the following: Trooper Ernest Goodwin, Jr., with the StateHighway Patrol, investigated the Denison-Gundersen accident, which
occurred following a heavy downpour in the area at issue. He
observed N.C. Highway 343 to be generally wet, with water
accumulating in parallel ruts in both lanes. Trooper Goodwin
concluded that the Denison-Gundersen vehicle had hydroplaned due to
standing water in the roadway. The day after the Denison-Gundersen
accident, Sergeant Charles Gould of the State Highway Patrol called
DOT District Engineer Jerry Jennings to inform him of the accident.
Sergeant Gould apprised Jennings that there was a possibility that
standing water had been a contributing factor to the Denison-
Gundersen accident. According to Jennings such a call wasn't a
common occurrence. Jennings telephoned his supervisor, DOT
Division Engineer Don Connor and informed him of the information
relayed by Sergeant Gould, including Sergeant Gould's concern that
guardrails might be needed to buffer the bridge piers with which
the Denison-Gundersen vehicle had collided.
Beginning the day after the Denison-Gundersen accident,
numerous related newspaper articles were published on the front
page of periodicals serving northeastern North Carolina. Each of
these articles mentioned wet road conditions and/or standing water
as the cause of the accident, and at least some quoted named or
unnamed member of the State Highway Patrol as attributing the cause
of the accident to standing water in the roadway. DOT Camden
County Maintenance Engineer Raymond Skinner learned of the accident
by reading about it in the newspaper. DOT District Engineer Jennings visited the location of the
Denison-Gundersen accident on 18 August 1997. He was not
performing an official investigation, but was curious as to whether
there were any obvious road defects that could have contributed to
the wreck. Jennings looked for low shoulders and potholes, but he
did not perform an analysis to detect rutting in the highway, even
though such an analysis would have taken very little time.
Jennings did not request a formal investigation of the accident
scene, and did not request that any additional information be
gathered from the scene other than the information that he had
gathered during his visit.
A DOT Camden County Transportation Supervisor, Robert Winslow,
learned of the Denison-Gundersen accident through conversations at
work. He subsequently visited the accident scene out of curiosity
and not as part of a formal investigation. Winslow knew only that
it had been raining before the Denison-Gundersen accident, and he
made only a quick visual inspection of the scene.
Thereafter, on 20 August 1997, decedent Walker was killed
while driving in the same location of Highway 343. Gary McCoy had
been traveling in same direction as Walker just prior to the
accident. McCoy testified that he had slowed down due to rainy
conditions and that Walker's vehicle was ahead of him on the
highway. McCoy indicated that upon exiting onto Highway 343, he
saw the taillights of Walker's vehicle disappear. He then observed
Walker's vehicle stopped next to a bridge piling. McCoy did not
actually witness Walker's vehicle lose control or leave thehighway, but he did observe water standing in parallel ruts in the
lane in which Walker had been traveling. McCoy stated that these
ruts were approximately the length of a vehicle's tires and that he
had previously noticed these ruts in the vicinity of the accident,
even on dry days.
DOT District Engineer Jennings was called to the scene of the
Walker accident, and with the benefit of the rain, he was able to
observe standing water in ruts along the southbound lane of Highway
343. The ruts extended for approximately 100 yards, including the
area where Walker left the highway. Jennings testified that these
ruts probably would have been present during his visit to the area
two days earlier and that he probably would have noticed them if he
had been looking for rutting. The portion of the highway
containing the ruts was resurfaced within forty-eight hours of the
Trooper David Putnam of the State Highway Patrol investigated
the Walker accident. He determined that up to one-half of an inch
of water had accumulated in the ruts along southbound Highway 343.
Trooper Putnam concluded that Walker's vehicle was traveling
southbound on Highway 343 when it spun counterclockwise, left the
roadway at a sideways angle, and continued sliding sideways until
it hit the bridge piling on the east side of the road approximately
eighty-six feet south of where it left the roadway. Trooper Putnam
entertained four possibilities as to how the accident had occurred.
The first was that the Walker's vehicle hydroplaned off the road.
The second was that Walker lost control of his vehicle, ran off theroad to the right, overcorrected, and then came back across the
road, and ran off the road to the left. The third was that Walker
suddenly and forcefully applied brakes, and lost control of his
vehicle on the wet road. The fourth possibility was that Walker
suffered a medical emergency that caused him to lose control of his
vehicle. In his final report, Trooper Putnam noted that Walker's
vehicle had hydroplaned due to water standing in the roadway, and
during his testimony, he admitted that there was no evidence of any
of the other causes of the accident. Trooper Putnam also concluded
that the tire tread depths of Walker's vehicle were within the
There was evidence that DOT has an established procedure of
having an area accident investigation engineer perform a formal
investigation and make recommendations following a fatal accident.
DOT Area Accident Investigation Engineer Haywood Daughtry testified
that the investigation begins with the obtaining of an accident
report from the State Highway Patrol. Such a report takes a few
days to generate, and according to Daughtry, is normally received
within one and a half to two weeks, after which the area accident
investigation engineer has thirty days to conduct an investigation.
Daughtry did not receive notification of the Denison-Gundersen
accident until September of 1997, after the road had been
resurfaced and guardrails had been installed.
Following the Denison-Gundersen accident, DOT District
Engineer Jennings did not take any steps to hasten an investigation
by the Area Traffic Investigation Engineer. Likewise, he did notattempt to obtain a copy of the Highway Patrol wreck report and did
not attempt to contact the investigating officers.
Plaintiff's expert, Ernest Mallard, testified as an expert
witness in highway design, highway engineering, and accident
reconstruction. Mallard testified that, in his opinion, the
section of Highway 343 where the Denison-Gundersen and Walker
accidents occurred was a defective and unreasonably dangerous
section of highway in light of the following conditions: it
contained ruts holding as much as one-half an inch of water, the
posted speed limit was fifty-five miles an hour, and there were
neither guardrails between the road and the nearby bridge pilings
nor cautionary signs to warn of the danger. Mallard concluded that
these defects were the proximate cause of Walker's death. Mallard
further opined that DOT employees should have been looking for, and
should have noticed, rutting during their visits to the scene after
the Denison-Gundersen accident but prior to the Walker accident.
Plaintiff's expert, Harold Satterwhite, Jr., testified as an
expert on DOT's policies and procedures with respect to maintenance
of highways, accident scene investigations, and the standard of
care, duties, and responsibilities of DOT district engineers and
area traffic engineers. In his opinion, the section of Highway 343
in which the accidents occurred was an unreasonably dangerous road
because of the posted speed limit, the extent of rutting and its
potential to hold water, and the unprotected concrete bridge
pilings. According to Satterwhite, Sergeant Gould's 15 August 1997
telephone call to DOT District Engineer Jennings created a duty forJennings to immediately conduct, or have conducted, a reasonable
inspection of the accident scene to determine whether roadway
defects were present, including drainage problems with the highway.
Satterwhite indicated that the rutting of the type involved in the
present case required the immediate posting of signs to warn the
traveling public until such time as the highway could be
resurfaced. In addition, Satterwhite stated that the rutting
present at the Walker accident scene should have been visible to
the eye of DOT personnel upon inspection of the highway.
Satterwhite concluded that Jennings breached the applicable duty of
care following the Denison-Gundersen accident.
Another expert, Michael Sutton, testified that hydroplaning
can occur in water as shallow as one-tenth of an inch and at speeds
as low as forty-five miles per hour. Sutton opined that, given the
size of Walker's vehicle and the condition of its tires, it could
have hydroplaned in standing water at a depth of two-tenths of an
The Hearing Commissioner entered an opinion and award denying
plaintiff's claim. With one Commissioner dissenting, the Full
Commission (the Commission) reversed, and entered a new opinion and
award, which granted compensation. Specifically, the Commission
made the following findings of fact:
19. [DOT] contends that [Walker]'s
actions, or inactions constituted contributory
negligence in relation to the accident
resulting in his death on 20 August 1997.
There were no eyewitnesses to this accident,
and no competent witness testimony regarding
the speed of the [Walker] vehicle at the timeit left the roadway was offered. Additionally,
although [DOT] contends that [Walker] was
operating his vehicle with unsafe tires, the
evidence of record establishes that his
vehicle's tire tread depths complied with
20. Based upon the totality of the
credible evidence of record, the Full
Commission finds that there were no actions or
inactions on the part of [Walker] that
constituted contributory negligence in
relation to the incident resulting in his
death on 20 August 1997.
. . . .
34. [DOT] had notice of . . . an
existing defect or dangerous road condition
prior to [Walker]'s accident on 20 August
1997. [DOT] did not timely repair the
dangerous condition or provide signage to warn
the travelling public about the dangerous
35. [DOT] has a duty to provide and
maintain safe road conditions and to provide
warnings for dangerous conditions. [DOT]
breached this duty with regard to the existing
road conditions present at the time and place
of [Walker]'s accident on 20 August 1997.
36. [DOT]'s breach of duty caused
[Walker]'s accident of 20 August 1997 and his
The Commission made the following conclusions of law:
1. On 20 August 1997, the negligence of
[DOT]'s named employees was the proximate
cause of [Walker]'s injuries and death. . . .
2. There were no actions or inactions
on the part of [Walker] that constituted
contributory negligence in relation to the
incident resulting in his death on 20 August
1997. . . .
3. Because of the negligence of [DOT]'s
named employees, the State is liable to the
plaintiff in this case . . . .
From this opinion and award, DOT now appeals.
On appeal, DOT argues that (1) the Commission's findings of
fact do not support its conclusions of law; (2) the public duty
doctrine precluded a finding of liability; (3) public officer
immunity precluded a finding of liability; and (4) the Commission
erred by failing to find contributory negligence. These arguments
either have been waived by DOT or are without merit.
Standard of Review
We begin our analysis with the standard of review. The North
Carolina Tort Claims Act empowers the Industrial Commission to
adjudicate tort claims against the State Board of Education, the
Board of Transportation, and all other departments, institutions
and agencies of the State. N.C. Gen. Stat. § 143-291 (2003).
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. If the Commission
finds that there was negligence on the part of
an officer, employee, involuntary servant or
agent of the State while acting within the
scope of his office, employment, service,
agency or authority that was the proximate
cause of the injury and that there was no
contributory negligence on the part of the
claimant or the person in whose behalf the
claim is asserted, the Commission shall
determine the amount of damages that the
claimant is entitled to be paid[.]
Id. Under the Act, a decision of a Hearing Commissioner may be
appealed to the Full Commission, which may issue its own findingsof fact and conclusions of law. N.C. Gen. Stat. § 143-292 (2003).
A decision and order of the Full Commission may be appealed to this
Court; [s]uch appeal 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). Thus, the standard of review in
this Court is: (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.
Simmons v. N.C. Dept. of Transportation, 128 N.C. App. 402, 405-06,
496 S.E.2d 790, 793 (1998).
At the outset, we note that all of DOT's eleven assignments of
error assert only that no competent evidence was presented on
which to base the [named finding or conclusion]. However, most of
the arguments in DOT's brief cannot be fairly characterized as
challenging the sufficiency of the evidence to support the
Commission's findings and conclusions. As such, DOT has largely
abandoned its contentions that the Commission's findings of fact
are not supported by competent evidence of record. See N.C. R.
App. P. 28(b)(6) (Assignments of error not set out in the
appellant's brief, or in support of which no reason or argument is
stated or authority cited, will be taken as abandoned.).
Likewise, the arguments contained in DOT's brief which do not
correspond to an appropriate assignment or error are not properlybefore this Court. Bustle v. Rice, 116 N.C. App. 658, 659, 449
S.E.2d 10, 11 (1994) (holding that, if the issues presented in an
appellant's brief do not correspond to an assignment of error, the
issues raised in the brief will not considered by this Court); see
also Viar v. N.C. Dep't of Transp., 359 N.C. 400, 402, 610 S.E.2d
360, 361 (2005) (holding that the North Carolina Rules of Appellate
Procedure are mandatory).
For example, in its second and third arguments on appeal, DOT
contends that the public duty doctrine and public officer immunity
preclude a finding of liability in the instant case. Though we
find the strength of these arguments to be dubious, we do not reach
the merits of either argument because there are no corresponding
assignments of error in the record on appeal. See N.C. R. App. P.
10(a) ([T]he scope of review on appeal is confined to
consideration of those assignments of error set out in the record
Furthermore, the record indicates that DOT failed to raise
either the public duty doctrine or public official immunity in the
proceedings before the Industrial Commission. Both doctrines are
affirmative defenses that must be asserted before the trial
tribunal. See, e.g., Moses v. Young, 149 N.C. App. 613, 615, 561
S.E.2d 332, 333 (The sole issue on appeal is whether defendants
may assert the public duty doctrine as an affirmative
defense . . . .), disc. review denied, 356 N.C. 165, 568 S.E.2d
199 (2002); Epps v. Duke University, 122 N.C. App. 198, 205, 468
S.E.2d 846, 852 (characterizing public official immunity as anaffirmative defense), disc. review denied, 344 N.C. 436, 476 S.E.2d
115 (1996). Therefore, DOT has also waived appellate review of
these issues by failing to present them to the Industrial
Commission. See N.C. R. App. P. 10(b)(1) (In order to preserve a
question for appellate review, a party must have presented to the
trial [tribunal] a timely request, objection or motion stating the
specific grounds for the ruling the party desired the [tribunal] to
make . . . .).
In another argument on appeal, DOT argues that the Commission
erred [in that] its conclusions of law failed to be supported by
findings of fact [because] the Commission's findings of fact
state [that] DOT did not have notice of any hazardous road
conditions prior to [Walker]'s fatal accident. There is no
corresponding assignment of error in the record on appeal, and the
assignments of error listed in DOT's brief all allege that the
findings or conclusions are not supported by competent record
evidence. As such, review of this argument has been waived. See
N.C. R. App. P. 10(a); Bustle, 116 N.C. App. at 659, 449 S.E.2d at
11. However, assuming arguendo that DOT's argument on appeal is
properly before this Court, it lacks merit.
DOT contends that the Commission's findings of fact do not
support its conclusions of law for three reasons. First, DOT
asserts that the Commission's findings are internally inconsistent
because Finding of Fact No. 10 contradicts Finding of Fact No. 34.
Those two findings are as follows: 10. On Monday, 18 August 1997, Mr.
Jennings went to the scene of the
Denison-Gundersen accident. On that day, the
weather was sunny, and the road surface was
dry. No definitive evidence has been produced
to establish that Mr. Jennings had knowledge
of the road conditions exi[s]ting when the
Denison-Gundersen [accident] occurred on the
date of his visit to the scene. Mr. Jennings
testified that he did not go to the scene to
perform a formal investigation, but had other
tasks in that area, and went to the scene to
determine if there were obvious road defects
that could have contributed to the accident.
Mr. Jennings did not look for rutting in the
road surface, but did look for low shoulders
and potholes. During his visit, Mr. Jennings
observed tracks in the grass, and was able to
determine the area of N.C. 343 where the
vehicle had been prior to leaving the road.
Although Mr. Jennings testified that an
analysis for rutting would not have taken much
time, the only measurement he made at the
scene was the distance between the pavement
and the concrete bridge pilings on the east
side of the road. Prior to [Walker]'s
accident, Mr. Jennings did not request any
additional inspections by [DOT]'s personnel of
the Denison-Gundersen accident scene. Neither
prior to 18 August 1997, nor between that time
and [Walker]'s accident, did Mr. Jennings
gather further information about the Denison-
Gundersen accident or obtain an accident
report. During the hearing, Mr. Jennings
testified that in his opinion, there was not
an urgent need to conduct an immediate formal
inspection of the Denison-Gundersen accident
. . . .
34. [DOT] had notice of . . . an
existing defect or dangerous road condition
prior to [Walker]'s accident on 20 August
1997. [DOT] did not timely repair the
dangerous condition or provide signage to warn
the travelling public about the dangerous
According to DOT, Finding No. 10 essentially states that Jennings
had no notice of the road conditions existing at the time of the
Denison-Gundersen accident, which conflicts with the statement in
Finding No. 34 that DOT had notice. However, read closely and in
the context of the whole opinion and award, these findings are not
inconsistent. Though Finding No. 10 does state that [n]o
definitive evidence has been produced to establish that Mr.
Jennings had knowledge of the road conditions exi[s]ting when the
Denison-Gundersen [accident] occurred on the date of his visit to
the scene, the order is replete with allusions to the evidence
tending to show that DOT did have notice. For example, Finding No.
7 indicates that Sergeant Gould of the State Highway Patrol called
Jennings the day after the Denison-Gundersen accident and believed
he [had] mentioned standing water being present at the accident
scene. Finding No. 8 states that Jennings telephoned his
supervisor, Division Engineer Don Connor and advised him of
Sergeant Gould's report of the Denison-Gundersen accident.
Finding No. 9 mentions several local front-page newspaper articles
that were printed within three days of the Denison-Gundersen
accident, all of which mentioned the wet road conditions, and
Finding No. 11 indicates that at least one DOT employee learned of
the accident from these articles. Finding of Fact No. 12 notes
that DOT Camden County Transportation Supervisor Winslow visited
the Denison-Gundersen accident scene after he had learned of [it]
through a conversation at work. In light of the evidence
mentioned in these findings, the Commission was not precluded fromdetermining in Finding of Fact No. 34 that DOT had notice of the
defective and dangerous road condition that caused the Walker
accident, even though the evidence may have also supported a
contrary finding. See McRae v. Toastmaster, Inc., 358 N.C. 488,
496, 597 S.E.2d 695, 700 (2004) (The Commission's findings of fact
are conclusive on appeal when supported by . . . competent
evidence, 'even though there [is] evidence that would support
findings to the contrary.') (citation omitted).
Second, DOT insists that Findings of Fact Nos. 29 and 30 are
inconsistent with Findings of Fact Nos. 10 and 22. Finding No. 10
is set forth above and the remaining findings are as follows:
22. . . . When a fatal vehicle accident
occurs, [DOT]'s established procedure is for
the Area Traffic Investigation Engineer to
perform a formal investigation, and make any
necessary recommendations for road repairs.
The Area Traffic Investigation Engineer for
the roads in question in 1997 was Mr. Haywood
Daughtry. At the hearing, Mr. Daughtry
testified that [DOT]'s formal investigation of
fatal accidents begins with obtaining a copy
of the State Highway Patrol Report to
determine the road conditions at the time of
the accident. Regarding such reports, Sergeant
Gould testified that it normally takes several
days after an accident for a Highway Patrol
Report to be completed. Under normal
circumstances Mr. Daughtry testified that his
office receives information regarding vehicle
accident fatalities through formal reports
within 30 days of the accident. Mr. Daughtry
further testified that if he receives a
request to investigate a fatal accident site
prior to completion of the official report, he
would investigate that site as soon as
possible, and that he would obtain a working
copy of [the] official Highway Patrol
Report . . . for use in that investigation.
According to Mr. Daughtry, an Area Traffic
Investigation Engineer's investigationinvolved visiting the scene and verifying all
of the relevant distances. The investigator
would also ride, and walk through the scene,
looking for any possible roadway or signing
deficiencies. The investigator would then
review the accident history of the area of
road in question to determine if there are any
significant accident patterns. Mr. Daughtry
received notification of the Denison-
Gundersen accident in September 1997, so at
the time he investigated the scene, the road
had been resurfaced and guardrails had been
. . . .
29. Mr. Harold Landis Satterwhite,
Jr.[,] was accepted by the Deputy Commissioner
as an expert in [DOT]'s policies and
procedures concerning the maintenance of
highways, and investigations of accident
scenes. Mr. Satterwhite was also accepted as
an expert regarding highway engineering, and
the standard of care, duties and
responsibilities of [DOT]'s District Engineers
and Area Traffic Engineers. Mr. Satterwhite
testified that in his opinion, the area of
N.C. 343 at issue constituted an unreasonably
dangerous road because of the posted speed
limit, the extent of rutting and its potential
to hold water, and the unprotected concrete
bridge pilings. According to Mr. Satterwhite,
the standard of care for a District Engineer
requires that he or she maintain safe roadways
within their district. Fulfilling that duty
requires a District Engineer to properly
supervise their subordinates who are to
observe, inspect and maintain roads in the
district on a regular basis. The District
Engineer is also responsible for inspecting,
or having his subordinates inspect, potential
roadway defects reported to their office. Mr.
Satterwhite further testified that defects of
which the District Engineer's Office had
knowledge . . . should be repaired
immediately, although he admitted that the
[DOT] did not have sufficient resources to
repair all rutting or other defects. As for
standing water, Mr. Satterwhite testified upon
notification of roadway conditions giving rise
to the possibility of water accumulations,[DOT]'s highway engineers have a duty to
respond to that immediately by inspecting the
roadway for defects, and then correcting found
defects as quickly as possible. Until such
time as a known defect can be repaired, Mr.
Satterwhite testified that [DOT] has a duty to
immediately warn the traveling public.
30. According to Mr. Satterwhite,
Sergeant Gould's telephone call to Mr.
Jennings on 15 August 1997 created a duty for
Mr. Jennings to immediately conduct, or have a
subordinate immediately conduct a reasonable
inspection of the accident scene to determine
whether roadway defects were present. Mr.
Satterwhite further opined that given the
manner and timing of Mr. Jennings' visit to
the accident scene on 18 August 1997, . . .
Mr. Jennings breached his duty as a District
Engineer to conduct, or to have subordinates,
such as Mr. Skinner or Mr. Winslow, conduct a
reasonable inspection. As a basis for this
opinion, Mr. Satterwhite testified that upon
visiting the scene, Mr. Jennings should have
specifically looked for rutting, and that had
he conducted a reasonable inspection, the
rutting in the southbound lane of N.C. 343
would have been visible.
According to DOT, Finding No. 10 establishes that it did not have
notice of the road conditions leading to the Denison-Gundersen
accident, and Finding No. 22 states that DOT's established
procedure is to perform a formal investigation following receipt
of a formal report, which is usually received within 30 days of
the accident. As already indicated, Finding No. 10 does not
contradict the Commission's other findings which indicate that DOT
did have notice of the road conditions leading to the Denison-
Gundersen accident. Moreover, we are unpersuaded that we should
second-guess the Commission's finding that, given the circumstancesof the Denison-Gundersen accident, DOT was required to act more
quickly than in other situations.
Third, DOT argues that the Commission failed to state in any
finding of fact that any DOT employee had notice of the condition
of the road at the time of the Denison[-Gundersen] wreck prior to
the occurrence of [Walker]'s accident. However, as already
indicated, the Commission's opinion and award, read closely and in
context, sufficiently addresses the issue of notice to DOT's named
Therefore, the Commission's findings of fact support its
conclusions of law that the negligence of DOT's named employees was
the proximate cause of Walker's injuries and death. Thus, to the
extent there are corresponding assignments of error, they are
In its final argument on appeal, DOT contends that the
Commission erred by failing to find that Walker was contributorily
negligent such that recovery was barred. We do not agree.
The Commission found that there was no competent evidence to
indicate that Walker was speeding at the time of his accident and
that evidence of record established that the tire tread depths for
Walker's vehicle complied with the statutory requirements.
Accordingly, the Commission found that Walker had not been
contributorily negligent. In its brief, DOT insists that there was
evidence from which the Commission could have concluded that
negligence on Walker's part contributed to his injuries and death. The Commission's findings of fact are conclusive on appeal
when supported by . . . competent evidence, 'even though there [is]
evidence that would support findings to the contrary.' McRae, 358
N.C. at 496, 597 S.E.2d at 700 (citation omitted). Our review
indicates that the Commission's findings with respect to the lack
of contributory negligence are supported by competent record
evidence. Therefore, these findings are binding upon this Court.
These assignments of error are overruled.
In conclusion, we hold that (1) DOT has waived review of its
arguments concerning the public duty doctrine and public official
immunity, (2) the Commission's findings of fact support its
conclusions of law, and (3) the Commission did not err by failing
to find that Walker was contributorily negligent. Therefore, the
Commission's opinion and award is
Judges TIMMONS-GOODSON and STEELMAN concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***