McCoy v. N.C. Dept. of Correction

2. This is an action filed pursuant to the North Carolina Tort Claims Act, N.C.G.S. § 143-291, et seq.

3. All parties have been correctly designated and there is no question as to misjoinder or nonjoinder of parties.

4. Defendant, North Carolina Department of Correction, is a State agency and William Mackey was an employee of defendant at the time of the alleged negligence.

5. The date of the alleged negligence giving rise to this claim is February 18, 1999.

6. This issues to be determined by the Full Commission are:

a.) Whether defendant's named employee was negligent;

b.) Whether this negligence proximately caused injury to plaintiff;

c.) Whether plaintiff was contributorily negligent;

d.) Whether defendant had the last clear chance;

e.) What amount, if any, is plaintiff entitled to recover.

7. The deposition of Justin Bode, D.C. is a part of the evidentiary record in this case.

2. On February 18, 1999, William Mackey was employed by defendant as an intensive probation/parole officer. Mr. Mackey's position required him to travel to the homes of persons on intensive probation/parole to check curfew. At approximately 11:00pm on this date, Mr. Mackey was operating a State-owned vehicle while traveling to his last curfew check of the evening. Mr. Mackey was traveling north on U.S. Highway 1 in Moore County when he crested a hill and observed plaintiff's moped traveling in the road in front of him.

3. Mr. Mackey was traveling approximately 50-55 mph, which was at or below the posted speed limit, when he first observed plaintiff's moped 15-25 yards ahead of his state-owned vehicle. Mr. Mackey did not observe any tail lights on plaintiff's moped which was traveling at a slow rate of speed.

4. Mr. Mackey lifted his foot off the accelerator as soon as he realized something was traveling in the road ahead of him. Mr. Mackey hit the brake right at the point of collision with plaintiff's moped which was directly on the segmented center line of the four-lane highway. Mr. Mackey was traveling north in the right hand lane and moved further right to try to avoid the moped. Plaintiff also moved to the right side of the road and the left corner of Mr. Mackey's vehicle struck the back of the moped. The impact caused plaintiff's back and head to hit the windshield of Mr. Mackey's vehicle. Plaintiff then came off the vehicle and landed several feet to the left of the center line. Mr. Mackey assisted plaintiff and called dispatch for an ambulance.

6. Plaintiff's helmet left red marks six to twelve inches to the left of the center line. The damage to the State vehicle Mr. Mackey was driving was limited to the left front corner and quarter panel of the vehicle.

7. Plaintiff's version that he was traveling in the right hand lane at the fog line or far right hand side of the right lane at approximately 40 mph is not accepted as credible. The speed limit for a moped is 20 mph. Plaintiff's point of impact with the State vehicle was at the left front part of the car. If plaintiff's version of events was credible, the State vehicle would have been traveling off the shoulder of the road at the time of impact. There were no tire impressions on the right shoulder or any other evidence that would suggest the State vehicle traveled off the right shoulder of the road. Additionally, plaintiff's helmet marks when he hit the road directly after impact were located six to twelve inches left of the center line.

8. The greater weight of the competent evidence shows that the named employee of defendant, Mr. Mackey, was not negligent in the operation of his State vehicle on the evening of February 18, 1999. Mr. Mackey while traveling at or below the posted speed limit on U.S. Highway 1 came over a hill to find plaintiff on a slow-moving moped in the center of the road. Mr. Mackey reacted reasonably in attempting to maneuver around the moped and did not have time, or the last clear chance, to avoid the collision.

9. The greater weight of the competent evidence also shows that plaintiff's contributory negligence in that he moved his moped over into the path of Mr. Mackey's vehicle was the proximate cause of his collision with the State vehicle.

2. Even if the named employee of defendant, William Mackey, were found to be negligent in the operation of his State vehicle on February 18, 1999, plaintiff's contributory negligence in the operation of his moped on the same date resulting in collision with the State vehicle renders plaintiff entitled to receive no damages from defendant. N.C.G.S. §143-299.1.

2. Each side shall pay its own costs.

This the ___ day of January 2003.

S/____________ BUCK LATTIMORE CHAIRMAN

CONCURRING:

S/______________________ LAURA KRANIFELD MAVRETIC COMMISSIONER

DISSENTING:

S/_____________ THOMAS J. BOLCH COMMISSIONER

Under the Tort Claims Acts, negligence is determined by the same rules applicable to private parties. Bolkir v. N.C. State Univ., 321 N.C. 706,709 (1998). Plaintiff has shown that the injuries and damages he sustained were the proximate result of a negligent act of William Mackey, a state employee acting in the course and scope of his employment as a probation officer for defendant. N.C. Gen. Stat. § 143-291. Plaintiff sustained injuries and damages related to a serious motor vehicle accident when Mackey struck the plaintiff with his automobile while plaintiff was riding a moped. Mackey failed to use due diligence and care when cresting a hill while traveling north on U.S. Highway 1. The evidence of record indicates that Mackey was distracted, failed to travel at a safe speed, and failed to brake timely because he wanted to "go around" the plaintiff. (T. p. 93, 95, 126). The majority's opinion in this case has erred in finding that the motor vehicle accident in which plaintiff was injured was not proximately caused by the negligence of defendant or its employees or agents.

Contrary to the majority's conclusion of law, plaintiff has indeed established actionable negligence by showing that Mackey failed to exercise due care in the performance of a legal duty owed to plaintiff under the circumstances. Bolkir at 900. Due diligence requires a driver to use caution when cresting a hill. This involves traveling at a safe speed braking or slowing down, if necessary and assessing the road ahead for any obstacles, so as to ensure the safety of any persons or vehicles that may be nearby. At the hearing before the deputy commissioner, Mackey testified that upon cresting the hill, he was distracted by lights from a nearby business. (T. p. 93). When he finally did return his eyes to the road, he noticed a moped traveling in front of him. (T. p. 95). Instead of immediately braking, Mackey testified that he sought to "go around" the moped. (T. p. 95 126). Mackey stated both in deposition and at hearing before the Deputy Commissioner that he did not brake until the actual collision took place. (T. p. 94). Mackey had a legal duty owed to plaintiff to exercise due care in ensuring plaintiff's safety by traveling with care, in this case, simply braking timely to avoid a collision. Thus, Mackey breached his duty of care owed to plaintiff.

The majority found that plaintiff's motor vehicle accident and resulting injuries were more likely the cause of his own negligence or error. At the hearing before the Deputy Commissioner and the Full Commission, much discussion centered on where the plaintiff was traveling whether he was on the center line, just right of the center line, or closer to the far right line of the road and the testimony of the plaintiff and Mackey do not provide clarity as to where the plaintiff's moped was actually located. However, what is clear and undisputed is that the damage to Mackey's car was on the front-left corner of the vehicle; thus, Mackey struck the plaintiff from the right. (T. p. 99). This is further corroborated by Mackey's own testimony that he "moved toward the right-hand side of the road" while attempting to "go around," or pass the plaintiff. (T. p. 95-96, 126). Passing a motor vehicle on the right is clear negligence.

Moreover, even if plaintiff's actions could be deemed as contributory negligence, as the majority asserts, it was not the intent of the Legislature to limit liability under the Tort Claims Act to situations where the negligence of a state employee was the sole proximate cause of the injury or damages inflicted. Branch Banking Trust Co. v.Wilson C'nty Bd. Of Educ., 251 N.C. 603, 111 S.E.2d 844 (1960) (emphasis added).

As a result of Mackey's negligence and breach of his legal duty owed to plaintiff to exercise due care in operating his motor vehicle by simply braking when he noticed the moped traveling in front of him, instead of trying to "go around" it, defendants are liable to plaintiff for injuries and damages sustained as a consequence of such breach. N.C. Gen. Stat. § 143-291. For these reasons, I must respectfully dissent from the majority's Opinion and Award.

S/_____________ THOMAS J. BOLCH COMMISSIONER