Phillips v. North Carolina Dept. of Transp.

341 S.E.2d 339 (1986)

Judy K. PHILLIPS & Melvin Owensby v. NORTH CAROLINA DEPARTMENT OF TRANSPORTATION.

No. 8510IC865.

Court of Appeals of North Carolina.

April 1, 1986.

*340 Hamrick & Hamrick by J. Nat Hamrick, Rutherford, for plaintiffs-appellants.

Atty. Gen. Lacy H. Thornburg by Asst. Atty. Gen. George W. Lennon and Associate Atty. Gen. Randy Meares, Dept. of Justice, Raleigh, for defendant-appellee.

PHILLIPS, Judge.

If G.S. 143-291 had not been amended by Session Laws 1977, c. 529, effective 1 July 1979, the Full Commission's decision denying recovery to plaintiffs would have to be summarily affirmed. For the negligence of the State in this case, if any, was that of inaction or omission rather than action or commission and before G.S. 143-291 was amended only claimants that had been injured by "a negligent act" of a state officer, employee, or other agent could recover under the Tort Claims Act. As earlier written the statute did not permit recovery from the State for the negligent omissions or failures to act of its employees. Ayscue v. N.C. State Highway Commission, 270 N.C. 100, 153 S.E.2d 823 (1967); Flynn v. N.C. State Highway and Public Works Commission, 244 N.C. 617, 94 S.E.2d 571 (1956). But that is no longer the law and the Commission erred in assuming that it is. By virtue of the amendment referred to, the words "a negligent act" were replaced by the words "the negligence" and G.S. 143-291, in pertinent part, now reads, and did when plaintiffs were injured, as follows:

*341 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. (Emphasis supplied).

That the State's tort liability was greatly enlarged by the enactment and is no longer limited to responsibility for the negligent acts of its employees is obvious. See, Watson v. N. C. Department of Corrections, 47 N.C.App. 718, 721, 268 S.E.2d 546, 549, disc. rev. denied, 301 N.C. 239, 283 S.E.2d 135 (1980); 56 N.C.L.Rev. 1136, at p. 1148 (1978); Daily Bulletin No. 62, Institute of Government, p. 505 (April 7, 1977). It is just as obvious that the effect and purpose of the amendment was to extend the State's liability to include the negligent omissions and failures to act of its employees. A negligent act is but one form of negligence; whereas negligence if unrestricted, as it is in G.S. 143-291, is a term broad enough to embrace all negligent conduct, passive and active alike. Since it has been determined that plaintiffs were not contributorily negligent they are entitled to recover of the defendant if their injuries proximately resulted from a negligent omissions or negligent failure to act by either of defendant's employees named in the amendment to plaintiffs' affidavit; they are not required to show that their injuries resulted from a negligent act of either employee.

Thus, the Full Commission's decision and order is defective and further findings and conclusions in accord with this opinion are necessary. The finding of fact that no "negligent act" had been committed by the employees named only partially addressed the issue raised and the Commission's conclusion of law based thereon that there was no negligence by such employees and the resulting decision for defendant cannot stand and are vacated. The Commission should have also found whether either of the employees namedBilly Rose, who was in charge of the Division of Highways for North Carolina, and J.B. Edwards, who was in charge of highways in Rutherford Countywas negligent by reason of his failure to maintain said highway shoulder in a reasonably safe condition, or by his failure to correct the dangerous condition that caused plaintiffs to be injured. The record shows without dispute or contradiction that a condition dangerous to users of the highway had existed for many years without being corrected by those responsible for maintaining the highway. The Deputy Commissioner's finding that no notice had been given to the department of the many accidents that had occurred at the place is not decisive. Notice is not required to a party that already has knowledge and the defendant clearly had knowledge of the dangerous condition through its local Road Maintenance Supervisor, Albert Jones. Furthermore, the defendant's duty to maintain the right-of-way necessarily carried with it the duty to make periodic inspections and if the hazard had existed on defendant's right-of-way in close proximity to the highway for more than thirty years, as the evidence and findings indicate, the defendant had implied notice of the condition as a matter of law. 65 C.J.S. Negligence Sec. 5(3) (1966).

Vacated and remanded.

JOHNSON, J., concurs.

HEDRICK, C.J., concurs in the result.

HEDRICK, Chief Judge, concurring in result.

I concur in the decision of the majority vacating the decision of the Industrial Commission. The Commission erroneously denied plaintiffs' claim on the grounds that the evidence failed to disclose any "negligent act" by any defendant employee named. I disagree with the majority's efforts to do more than vacate the decision of the Commission and remand for a new hearing. I vote to remand to the Industrial *342 Commission for a new hearing, new findings and conclusions and for a decision in accordance with the law relative to G.S. 143-291, as amended. It is for the Commission, not the appellate Court, to make findings of fact from the evidence given in the case.