Estate of Nicholson

2. Whether the sanctions assessed against Defendant are in keeping with the purpose and spirit of discovery rules.

2. The Plaintiffs' pleadings allege the following transactions:

a. At approximately 12:30 a.m., Saturday, August 31, 2002, decedent Mickela S. Nicholson was operating a vehicle on RP 1010 in Johnston County, North Carolina. Decedents Michael A. Layaou and Marianne C. Dauscher were passengers in the decedent Nicholson's vehicle. At the aforementioned time and location, decedent Nicholson was operating her vehicle within the posted speed limit and keeping a proper lookout. As decedent Nicholson traveled along RP 1010, a vehicle driven by Carlos Ortega Valdivia was traveling toward the decedents' vehicle on RP 1010 in the opposite lane of travel and approaching an area of the roadway where it narrowed and transitioned from two lanes with a center turn lane to a two-lane road. As the Valdivia vehicle approached the Nicholson vehicle, the decedents' vehicle lawfully came into contact with a defectively eroded section of the highway pavement near the shoulder portion of RP 1010, causing it to leave the roadway and travel onto the shoulder. The shoulder *Page 3 portion of RP 1010 was defectively eroded with a significant drop-off existing between the pavement and the shoulder area. Decedent Nicholson attempted to return to the roadway but because of the defective roadway conditions and drop-off, she was caused to over steer, lose control of her vehicle, and cross the center line where her vehicle struck the Valdivia Vehicle. All three decedents and a fourth passenger, Steven Carr, were killed instantly.

b. Plaintiffs further contend that this defective roadway condition was the proximate cause of the collision and the decedents' deaths; that the defective conditions and drop-off had existed for a substantial period of time prior to the collision such that Defendant's maintenance personnel knew of its existence and danger and failed to make appropriate repairs; that Defendant knew or in the exercise of reasonable care should have known of the dangerously defective section of roadway on RP 1010 such that necessary repairs should and could have been made by each of them prior to the collision resulting in the decedents' deaths; that Defendant had a special duty of care to motorists and their passengers utilizing RP 1010 at the time of the matters alleged in their Affidavit by virtue of, among other things, specific findings of Deputy Commissioner Wanda Taylor which constitute the law of this case; that by reason of the negligent conduct of the Defendant the Plaintiffs are entitled to have and recover of the Defendant damages in an amount in excess of $10,000.00.

3. Defendant denied all allegations of negligence, and further pleaded the "Public Duty Doctrine." Deputy Commissioner Gheen's denial of Defendant's Public Duty Doctrine Motion prompted this appeal.

4. During the course of the proceedings relating to this matter, two Rule 37 orders by (then) Deputy Commissioner Wanda Taylor were entered against Defendant based on Plaintiffs' accusations that Defendant failed to provide discovery responses pursuant to Rules 26 and 34 of the North Carolina Rules of Civil Procedure.

2. Since the North Carolina Supreme Court decidedBraswell, four cases involving application of the Public Duty Doctrine have come before the Supreme Court. These cases,Stone v. N.C. Dep't of Labor,347 N.C. 473, 495 S.E.2d 711 (1998), Hunt v. Dep't of Labor,348 N.C. 192, 499 S.E.2d 747 (1998), Myers v. McGrady,360 N.C. 460, 628 S.E. 2d 761 (2006), and Multiple Claimants v.N.C. HHS, Div. of Facility Detention Servs.,361 N.C. 372, 646 S.E.2d 356 (2007), define when the Public Duty Doctrine applies, and whether an exception to the doctrine may be employed.

3. In order to determine whether the Public Duty Doctrine applies, it must be determined whether the statute that prescribes the State's obligations creates a duty that may be undertaken by a private individual. If the answer is in the negative, the Public Duty Doctrine must apply. In C.C.T. Equipment Co. v. HertzCorp., 256 N.C. 277, 123 S.E.2d 802 (1962), the Supreme Court determined that the Department of Transportation (hereinafter "DOT") has the sole authority, duty and responsibility to plan, design, locate, construct and maintain the system of public highways in this State. These duties were created by the North Carolina General Assembly when they enacted N.C. Gen. Stat. § 143B-346. In light of Plaintiffs' allegations that the DOT failed to properly inspect and maintain a public, State owned highway, and in light of the Supreme Court's opinions in Stone, Hunt, Myers andMultiple Claimants, by definition, the Public Duty Doctrine must apply.

4. In order to determine whether the "special relationship" exception may be applied to defeat the Public Duty Doctrine, it must be determined whether the statute that prescribes the State's obligations specifically creates a private right of action, or alternatively, whether the *Page 6 statute designates a particular class of individuals whose welfare the statute was designed to protect. Hunt,348 N.C. at 197, 499 S.E.2d at 750. Furthermore, it must be determined whether the statute describes a relationship between the claimant and the State which is sufficiently intimate to warrant the designation of "special." Braswell,330 N.C. at 371, 410 S.E.2d at 902. Here, none of the statutes that reference the DOT's role to inspect and maintain the State's highways create an explicit private right of action or describe a particular class of individuals whose welfare was intended to be protected by the statutes. On the contrary, the statutes delineate the DOT's responsibilities to the general public, and the Court of Appeals has declared that the duty owed by the DOT to maintain highways is owed to the public. Reid v. Roberts,112 N.C. App. 222, 227, 435 S.E.2d 116, 121, cert. denied,335 N.C. 559, 439 S.E.2d 151 (1993). In light of the foregoing, the "special relationship" exception may not be employed to defeat the Public Duty Doctrine in the instant cases.

5. In order to determine whether the "special duty" exception may be applied to defeat the Public Duty Doctrine, the claimant must show that an actual promise was made by a State agent to create a special duty, that the claimant reasonably relied upon the promise, and that the claimant's injury was causally related to the claimant's reliance. Braswell,330 N.C. at 371, 410 S.E.2d at 902. In the instant cases, Plaintiffs have offered no allegations that any affirmative, specific promise was made by an agent of the DOT to any of the decedents, and no evidence has been offered to establish that such a promise was ever made to any of the decedents. As such, the "special duty" exception to the Public Duty Doctrine is inapplicable.

2. The Rule 37 orders of Deputy Commissioner Taylor are hereby vacated.

3. Each side shall pay its own costs.

This the 17th day of June, 2010.

S/___________________ DIANNE C. SELLERS COMMISSIONER

CONCURRING:

S/______________________ LAURA KRANIFELD MAVRETIC COMMISSIONER

CONCURRING WITH A SEPARATE OPINION:

S/_______________ DANNY LEE McDONALD COMMISSIONER

I concur in the majority's decision but write separately to address the serious inequities that result from the required application of the Public Duty Doctrine to the instant cases. The application of the Public Duty Doctrine results in the dismissal of Plaintiffs' claims, thereby denying Plaintiffs the justice they seek in the courts of this state.

The Order accurately depicts the lineage of cases that has led to this result, moving from Braswell to Stone, Hunt,Meyers, and finally Multiple Claimants. The North Carolina Supreme Court, in this line of cases, declared that the State's waiver of sovereign immunity, as reflected in the Tort Claims Act, was in fact limited. The Court has declared that private individuals, who have been injured by the negligence of the State, cannot recover unless the State made a promise to those individuals, or those individuals had a special relationship with the State. Neither a specific promise was made nor a special relationship existed in the instant cases and therefore these Plaintiffs are without redress.

The North Carolina legislature has acknowledged the injustice that results from the application of the Public Duty Doctrine. In response, the legislature created N.C. Gen. Stat. § 143-299.1A which limits the application and use of the Public Duty Doctrine to claims arising *Page 10 under the State Tort Claims Act after October 1, 2008. Unfortunately for the Plaintiffs in the instant cases these claims arose in 2002, well before the effective date of the limiting statute.

I concur in the result of these matters only to the extent that I am constrained by the precedent and law that must be applied. In my examination of the applicable case law I note that the North Carolina Courts have not yet applied the Public Duty Doctrine to cases involving the North Carolina Department of Transportation. In fact, there is dicta to suggest that it may not apply at all. The Court of Appeals, discussing the strength of the Public Duty Doctrine defense asserted by DOT, states the argument may be of dubious strength. Walker v. N.C. Dept. ofTransportation, 173 N.C.App. 236, 617 S.E.2d 721 (2005). This Commission is not bound by dicta, but is bound by precedent. As there is no case that has denied the availability of this defense to the DOT, the holdings from the cases cited above lead me to concur in the decision made by the majority, however unjust that result may be.

S/________________ DANNY LEE McDONALD COMMISSIONER