Preview:

NO. COA11-17 NORTH CAROLINA COURT OF APPEALS Filed: 20 December 2011 JENNIFER RAY, Administratrix of the Estate of MICKELA NICHOLSON; LINDA JUDGE, Administratrix of the Estate of MARIANNE DAUSCHER; and EILEEN and ROGER LAYAOU, CoAdministrators of the Estate of MICHAEL LAYAOU, Plaintiffs, v. N.C. DEPARTMENT OF TRANSPORTATION, Defendant. From the Industrial Commission IC Nos. TA-18568, TA-18699, and TA-18694

Immunity -- public duty doctrine -- failure to repair roadway The public duty doctrine was not applicable to a negligence action against the State for a failure to repair a defective section of a roadway rather than a failure to inspect or prevent harm from a third party. Judge HUNTER, Robert C., dissenting.

NO. COA11-17 NORTH CAROLINA COURT OF APPEALS Filed: 20 December 2011 JENNIFER RAY, Administratrix of the Estate of MICKELA NICHOLSON; LINDA JUDGE, Administratrix of the Estate of MARIANNE DAUSCHER; and EILEEN and ROGER LAYAOU, CoAdministrators of the Estate of MICHAEL LAYAOU, Plaintiffs, v. N.C. DEPARTMENT OF TRANSPORTATION, Defendant. From the Industrial Commission IC Nos. TA-18568, TA-18699, and TA-18694

Appeal by Plaintiffs from Order entered 13 July 2010 by the Full Commission of the North Carolina Industrial Commission.

Heard in the Court of Appeals 17 August 2011. Zaytoun Law Firm, PLLC, by Robert E. Zaytoun, and McGrath Podgorny, PA, by Mark R. McGrath, for Plaintiffsappellants. Attorney General Roy Cooper, by Special Deputy General Amar Majmundar, for Defendant-appellee. Attorney

Paterson Harkavy LLP, by Burton Craige, and Jonathan R. Reich, for North Carolina Advocates for Justice, amicus curiae. HUNTER, JR., Robert N., Judge. Plaintiffs appeal from the 13 July 2010 Order of the North Carolina Industrial Commission, which held that the public duty

-2doctrine applied to bar Plaintiffs claims and that those claims were therefore dismissed under Rule 12(b)(6) of the North

Carolina Rules of Civil Procedure.

Plaintiffs argue that the

public duty doctrine does not apply and that the Full Commission erred in dismissing their case. We agree.

I. Factual & Procedural Background On 31 August 2002, Mickela S. Nicholson was driving her vehicle on RP 1010, a state-maintained road, in Johnston County. Plaintiffs claim for damages alleges her car went off the side of the roadway due to an eroded section of pavement near the shoulder. While getting back onto the roadway, Ms. Nicholsons

vehicle went out of her control, crossing the center line where she collided head-on with a vehicle driven by Carlos Ortega Valdivia. vehicle, Ms. Marianne Nicholson Dauscher, and the three Layaou, passengers and in her Carr,

Michael

Steven

were all killed in the collision. In July and August 2004, the estates of Ms. Nicholson, Mr. Layaou, and Ms. Dauscher (collectively "Plaintiffs") filed

claims against the North Carolina Department of Transportation ("Defendant" or "DOT") with the North Carolina Industrial Plaintiffs

Commission for damages under the Tort Claims Act.

alleged that the defective roadway was a proximate cause of the

-3accident and that Defendant knew or should have known of the defect. Defendant moved to dismiss Plaintiffs claims, pursuant

to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure, based on the public duty doctrine. On 16 July 2009, Chief

Deputy Commissioner Stephen T. Gheen denied Defendants motion. Defendant appealed to the Full Commission. Full Commission Danny view granted Lee Defendants wrote On 13 July 2010, the motion a to dismiss. opinion bound by

Commissioner expressing

McDonald the

concurring was

his

that

Full

Commission

precedent, even if the result was unjust. Full Commissions Order.

Plaintiffs appeal the

II. Jurisdiction & Standard of Review This Court has jurisdiction to hear this appeal pursuant to N.C. Gen. Stat.

Download 11-17.pdf

North Carolina Law