{ "id": 8956500, "name": "SUSAN NORMAN, Plaintiff v. NORTH CAROLINA DEPARTMENT OF TRANSPORTATION, Defendant", "name_abbreviation": "Norman v. North Carolina Department of Transportation", "decision_date": "2003-11-18", "docket_number": "No. COA02-1053", "first_page": "211", "last_page": "224", "citations": [ { "type": "official", "cite": "161 N.C. App. 211" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "332 S.E.2d 484", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "314 N.C. 118", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4696811, 4687500, 4687992, 4693465, 4688638 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/314/0118-04", "/nc/314/0118-05", "/nc/314/0118-02", "/nc/314/0118-01", "/nc/314/0118-03" ] }, { "cite": "92 S.E.2d 758", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1956, "opinion_index": 0 }, { "cite": "244 N.C. 208", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2219544 ], "year": 1956, "opinion_index": 0, "case_paths": [ "/nc/244/0208-01" ] }, { "cite": "328 S.E.2d 29", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "32" } ], "opinion_index": 0 }, { "cite": "74 N.C. App. 263", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524015 ], "pin_cites": [ { "page": "267" } ], "opinion_index": 0, "case_paths": [ "/nc-app/74/0263-01" ] }, { "cite": "112 S.E.2d 551", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1960, "pin_cites": [ { "page": "554" } ], "opinion_index": 0 }, { "cite": "251 N.C. 805", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627583 ], "year": 1960, "pin_cites": [ { "page": "810" } ], "opinion_index": 0, "case_paths": [ "/nc/251/0805-01" ] }, { "cite": "467 S.E.2d 58", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "65", "parenthetical": "quoting Walker v. Randolph Co., 251 N.C. 805, 810, 112 S.E.2d 551, 554 (1960)" } ], "opinion_index": 0 }, { "cite": "342 N.C. 554", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 795989 ], "year": 1996, "pin_cites": [ { "page": "564", "parenthetical": "quoting Walker v. Randolph Co., 251 N.C. 805, 810, 112 S.E.2d 551, 554 (1960)" } ], "opinion_index": 0, "case_paths": [ "/nc/342/0554-01" ] }, { "cite": "496 S.E.2d 379", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "347 N.C. 666", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 551172 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/nc/347/0666-01" ] }, { "cite": "488 S.E.2d 608", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1997, "pin_cites": [ { "page": "613", "parenthetical": "internal quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "127 N.C. App. 235", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11794156 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/nc-app/127/0235-01" ] }, { "cite": "138 S.E.2d 228", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1964, "pin_cites": [ { "page": "231" } ], "opinion_index": 0 }, { "cite": "262 N.C. 550", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569608 ], "year": 1964, "pin_cites": [ { "page": "554" } ], "opinion_index": 0, "case_paths": [ "/nc/262/0550-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 20-142.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 2001, "pin_cites": [ { "page": "(d)" } ], "opinion_index": 0 }, { "cite": "496 S.E.2d 790", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "793" } ], "opinion_index": 0 }, { "cite": "128 N.C. App. 402", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11654971 ], "year": 1998, "pin_cites": [ { "page": "405-06" } ], "opinion_index": 0, "case_paths": [ "/nc-app/128/0402-01" ] }, { "cite": "331 S.E.2d 662", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "pin_cites": [ { "page": "664" } ], "opinion_index": 0 }, { "cite": "314 N.C. 106", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4687870 ], "year": 1985, "pin_cites": [ { "page": "109" } ], "opinion_index": 0, "case_paths": [ "/nc/314/0106-01" ] }, { "cite": "248 S.E.2d 868", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "870", "parenthetical": "when a city street becomes part of the state highway system, DOT becomes responsible for its maintenance including the \"control of all signs and structures within the right-of-way\"" } ], "opinion_index": 0 }, { "cite": "38 N.C. App. 658", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8555583 ], "year": 1978, "pin_cites": [ { "page": "662", "parenthetical": "when a city street becomes part of the state highway system, DOT becomes responsible for its maintenance including the \"control of all signs and structures within the right-of-way\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/38/0658-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 136-30", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "year": 2001, "pin_cites": [ { "page": "(a)", "parenthetical": "\"All traffic signs and other traffic control devices placed on a highway in the State highway system must conform to the Uniform Manual.\"" }, { "page": "(a)" }, { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "341 S.E.2d 339", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "341", "parenthetical": "DOT's \"duty to maintain the right-of-way necessarily carried with it the duty to make periodic inspections\" and it could be found negligent based on implied notice of a hazardous condition on the right-of-way" }, { "page": "341", "parenthetical": "\"[T]he defendant's duty to maintain the right-of-way necessarily carried with it the duty to make periodic inspections . . . .\"" } ], "opinion_index": 0 }, { "cite": "80 N.C. App. 135", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522189 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "137-38", "parenthetical": "DOT's \"duty to maintain the right-of-way necessarily carried with it the duty to make periodic inspections\" and it could be found negligent based on implied notice of a hazardous condition on the right-of-way" }, { "page": "138" } ], "opinion_index": 0, "case_paths": [ "/nc-app/80/0135-01" ] }, { "cite": "576 S.E.2d 345", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2003, "pin_cites": [ { "page": "352", "parenthetical": "upholding Industrial Commission determination that DOT was negligent in connection with a railroad crossing based on the State's knowledge, because of earlier accidents and analysis from engineers, that the crossing was hazardous" }, { "page": "350" }, { "page": "349" } ], "opinion_index": 0 }, { "cite": "156 N.C. App. 92", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9189810 ], "weight": 2, "year": 2003, "pin_cites": [ { "page": "101", "parenthetical": "upholding Industrial Commission determination that DOT was negligent in connection with a railroad crossing based on the State's knowledge, because of earlier accidents and analysis from engineers, that the crossing was hazardous" }, { "page": "98" } ], "opinion_index": 0, "case_paths": [ "/nc-app/156/0092-01" ] }, { "cite": "566 S.E.2d 104", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "111", "parenthetical": "city could not be held liable for delaying the installation of safety devices at a railroad crossing because the city, although authorized to require safety devices, \"had no duty to have the warning or safety devices in place\"" }, { "page": "111" } ], "opinion_index": 0 }, { "cite": "151 N.C. App. 332", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9080247 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "342", "parenthetical": "city could not be held liable for delaying the installation of safety devices at a railroad crossing because the city, although authorized to require safety devices, \"had no duty to have the warning or safety devices in place\"" }, { "page": "343" } ], "opinion_index": 0, "case_paths": [ "/nc-app/151/0332-01" ] }, { "cite": "497 S.E.2d 287", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "290", "parenthetical": "city \"owed plaintiffs no affirmative duty to control traffic\" on a city street when N.C. Gen. Stat. \u00a7 160A-300 (1994) authorized the city to control traffic, but did not expressly require it to do so" } ], "opinion_index": 0 }, { "cite": "128 N.C. App. 410", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11655017 ], "year": 1998, "pin_cites": [ { "page": "414", "parenthetical": "city \"owed plaintiffs no affirmative duty to control traffic\" on a city street when N.C. Gen. Stat. \u00a7 160A-300 (1994) authorized the city to control traffic, but did not expressly require it to do so" } ], "opinion_index": 0, "case_paths": [ "/nc-app/128/0410-01" ] }, { "cite": "293 S.E.2d 235", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1982, "pin_cites": [ { "page": "236", "parenthetical": "emphasis original" }, { "page": "237" } ], "opinion_index": 0 }, { "cite": "58 N.C. App. 170", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523871 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "173" } ], "opinion_index": 0, "case_paths": [ "/nc-app/58/0170-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 20-158", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 4, "year": 2001, "pin_cites": [ { "page": "(a)" }, { "page": "(a)" }, { "page": "(a)(l)" }, { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "365 S.E.2d 898", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "900" } ], "opinion_index": 0 }, { "cite": "321 N.C. 706", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2566622 ], "year": 1988, "pin_cites": [ { "page": "709" } ], "opinion_index": 0, "case_paths": [ "/nc/321/0706-01" ] }, { "cite": "398 S.E.2d 445", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "452" } ], "opinion_index": 0 }, { "cite": "327 N.C. 526", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2493040 ], "year": 1990, "pin_cites": [ { "page": "536" } ], "opinion_index": 0, "case_paths": [ "/nc/327/0526-01" ] }, { "cite": "412 S.E.2d 654", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "330 N.C. 837", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2511114 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc/330/0837-01" ] }, { "cite": "393 S.E.2d 288", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "289" } ], "opinion_index": 0 }, { "cite": "99 N.C. App. 296", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522376 ], "year": 1990, "pin_cites": [ { "page": "298" } ], "opinion_index": 0, "case_paths": [ "/nc-app/99/0296-01" ] }, { "cite": "496 S.E.2d 607", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "609-10", "parenthetical": "\"[A]s matters outside of the pleadings were considered, the motions to dismiss were converted to motions for summary judgment.\"" } ], "opinion_index": 0 }, { "cite": "128 N.C. App. 716", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11656753 ], "year": 1998, "pin_cites": [ { "page": "719", "parenthetical": "\"[A]s matters outside of the pleadings were considered, the motions to dismiss were converted to motions for summary judgment.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/128/0716-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 143-293", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "opinion_index": 0 }, { "cite": "299 S.E.2d 618", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "626" } ], "opinion_index": 0 }, { "cite": "307 N.C. 522", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564079 ], "year": 1983, "pin_cites": [ { "page": "536" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0522-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 143-291", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 2001, "pin_cites": [ { "page": "et seq." } ], "opinion_index": 0 } ], "analysis": { "cardinality": 1094, "char_count": 31283, "ocr_confidence": 0.785, "pagerank": { "raw": 3.298053300945103e-07, "percentile": 0.8717185828208517 }, "sha256": "77590167c1c3d7a3f87ac69780a68248171653e647860f6c65ddcb4af64c68d8", "simhash": "1:ffa2edf64ac7bf50", "word_count": 5169 }, "last_updated": "2023-07-14T20:10:07.642184+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges TIMMONS-GOODSON and BRYANT concur." ], "parties": [ "SUSAN NORMAN, Plaintiff v. NORTH CAROLINA DEPARTMENT OF TRANSPORTATION, Defendant" ], "opinions": [ { "text": "GEER, Judge.\nPlaintiff Susan Norman was injured when her car collided with a train at a railroad crossing in the town of Elkin. Defendant, the North Carolina Department of Transportation (\u201cDOT\u201d), has appealed from the North Carolina Industrial Commission\u2019s decisions under the State Tort Claims Act granting partial summary judgment to plaintiff on the issue of negligence and, after an evidentiary hearing, concluding that Ms. Norman was not contributorily negligent. Although we affirm the Commission\u2019s contributory negligence decision as supported by competent evidence, we reverse the decision granting partial summary judgment because genuine issues of material fact exist as to DOT\u2019S negligence. We remand for an evidentiary hearing on the issue of negligence.\nFacts\nIn January 1989, at approximately 3:30 p.m., Ms. Norman, then eighteen years of age, was driving on Standard Street in the town of Elkin to her job at the Chatham Manufacturing Company. Standard Street crosses over railroad tracks, curves to the left, and runs parallel to the tracks for a distance. Standard Street then curves almost 90 degrees to the left, re-crosses the railroad tracks, and continues a short distance until it intersects with N.C. Highway 268. At the second railroad crossing; there are no crossbars or other mechanized signals. There are, however, pavement markings indicating a railroad crossing.\nAt issue in this case is a stop sign placed 17 feet north of the second railroad crossing and 90 feet south of Highway 268. The Commission found that this stop sign controls the flow of traffic onto the highway. There is no other stop sign closer to the intersection with Highway 268. After reviewing a photograph of the stop sign and railroad tracks and considering the distance from Highway 268, DOT\u2019S Field Support Engineer, Harold Steelman, Jr., testified: \u201cI think [the stop sign] would confuse me.\u201d He believed that a driver could be confused as to whether the stop sign regulated traffic crossing the railroad tracks or traffic entering Highway 268.\nWith respect to the question regarding who erected the stop sign, Mr. Steelman acknowledged that the State had responsibility for erecting any stop sign at. the intersection with Highway 268, but asserted that DOT had not put up the stop sign on Standard Street. He pointed out that Standard Street was not in the state highway system.\nShortly after crossing the railroad tracks on Standard Street for the first time, Ms. Norman came to a stop at a traffic light. Phillip Ray Lyles testified in a deposition that he was two cars behind Ms. Norman at that intersection. While sitting at the light, he heard a train horn blow faintly. It sounded as if the train was a substantial distance away. He looked at the track, but did not see any sign of the train. After the stoplight turned green, the car between Ms. Norman and Mr. Lyles turned right and the car in which Mr. Lyles was riding pulled up immediately behind Ms. Norman.\nAs they continued to travel down Standard Street, Mr. Lyles did not see any sign of a train and did not hear a horn again. As they approached the second crossing of the railroad tracks, he noticed that Ms. Norman\u2019s brake lights came on and she slowed down to approximately two to three miles per hour. Almost simultaneously with hearing the train horn blow again, Mr. Lyles saw Ms. Norman\u2019s car collide with the train. Prior to the collision, he had never seen the train.\nMs. Norman remembered little that occurred prior to the accident. She testified that while she had previously crossed the tracks, she had never seen a train at that crossing. DOT\u2019S witness Wayne Atkins confirmed that trains traveled through town only once per week. Ms. Norman further testified that she did not believe that she heard the train whistle because had she heard a whistle, she would not have crossed the tracks. Ms. Norman\u2019s car was on the first set of tracks when she was struck by the train.\nThe police accident report indicated that the train engineer did not see Ms. Norman\u2019s car until just before the impact. He said that he had operated his bell and horn west of the first railroad crossing. The police officer interviewed two witnesses, one of whom heard the bell and horn, while the other was not sure.\nProcedural Historv\nIn January 1992, plaintiff filed a claim against DOT under the State Tort Claims Act, N.C. Gen. Stat. \u00a7 143-291 (2001). Under the Tort Claims Act, \u201cjurisdiction is vested in the Industrial Commission to hear claims against the State of North Carolina for personal injuries sustained by any person as a result of the negligence of a State employee while acting within the scope of his employment.\u201d Guthrie v. N.C. State Ports Authority, 307 N.C. 522, 536, 299 S.E.2d 618, 626 (1983).\nDOT filed a motion to dismiss for failure to state a claim for relief together with three supporting affidavits. Deputy Commissioner Mary Hoag heard defendant\u2019s motion to dismiss on 27 August 1996 and entered an order granting defendant\u2019s motion to dismiss under Rule 12(b)(6) on the ground that plaintiff\u2019s claim \u201cfiled herein fails to state a claim upon which relief can be granted.\u201d\nOn appeal, the Full Commission reviewed DOT\u2019S three affidavits, various exhibits, the deposition of Phillip Lyles, and the deposition of Mr. Steelman. In an order filed 2 June 1997, the Full Commission reversed the deputy commissioner concluding that \u201cthere was a genuine issue as to defendant\u2019s negligence and, therefore, defendant\u2019s Motion to Dismiss was granted in error.\u201d Despite this finding of an issue of fact, the Commission then concluded that \u201c [defendant, by and through the named employees herein, was negligent in its placement of, or in its causing to be placed and then maintenance of the stop sign in question,\u201d citing N.C. Gen. Stat. \u00a7 143-291 et seq. The Commission further concluded that \u201c[a]s the proximate result of defendant\u2019s negligence, on 16 January 1989, plaintiff was involved in an accident resulting in bodily injuries and other damages.\u201d The Commission remanded the proceeding to the deputy commissioner for a hearing to determine whether plaintiff was contributorily negligent and, if not, damages.\nFollowing an evidentiary hearing on contributory negligence and damages, Deputy Commissioner Edward Gamer, Jr. filed an order on 15 April 1999 finding that plaintiff had been contributorily negligent by driving her vehicle onto the railroad crossing without looking to see whether a train was approaching and determining whether she could cross the tracks safely. In an order filed 7 May 2002, the Full Commission reversed, repeating its prior conclusion that plaintiff was injured as a proximate result of defendant\u2019s negligence in placing and maintaining the stop sign and finding that plaintiff was not con-tributorily negligent. The Commission found that plaintiff had been injured to an extent greater than or equal to $500,000.00, granted a credit to defendant for $145,000.00 received in settlement proceeds from other tortfeasors, and awarded $355,000.00 in damages.\nDOT has appealed both the Commission\u2019s 2 June 1997 order granting partial summary judgment as to negligence and the Commission\u2019s 7 May 2002 order awarding damages. Under N.C. Gen. Stat. \u00a7 143-293, either party may appeal a decision of the Commission:\nSuch 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.\nN.C. Gen. Stat. \u00a7 143-293 (2001).\nI\nDOT first argues that the Commission improperly entered summary judgment for plaintiff on the issues of negligence and proximate causation. We conclude that genuine issues of material fact exist as to the negligence of DOT and therefore remand for an evidentiary hearing on that issue.\nBecause the Commission considered materials outside of the pleadings, DOT\u2019S motion to dismiss pursuant to Rule 12(b)(6) was converted into a motion for summary judgment. Caswell Realty Assoc. v. Andrews Co., 128 N.C. App. 716, 719, 496 S.E.2d 607, 609-10 (1998) (\u201c[A]s matters outside of the pleadings were considered, the motions to dismiss were converted to motions for summary judgment.\u201d). When reviewing the Commission\u2019s entry of summary judgment, \u201cinstead of addressing the questions which we are usually limited to pursuant to N.C. Gen. Stat. \u00a7 143-293, we must determine whether the pleadings, interrogatory answers, affidavits or other materials contained a genuine question of material fact, and whether at least one party was entitled to a judgment as a matter of law.\u201d Medley v. N.C. Dep\u2019t of Corr., 99 N.C. App. 296, 298, 393 S.E.2d 288, 289 (1990), aff\u2019d on other grounds, 330 N.C. 837, 412 S.E.2d 654 (1992).\nIn a Tort Claims Act case, the Commission\u2019s duty in addressing a summary judgment motion is limited to determining the existence of genuine issues of material fact and stops short of resolving such issues without an evidentiary hearing. As stated by our Supreme Court, \u201cgenerally if a review of the record leads the appellate court to conclude that the trial [tribunal] was resolving material issues of fact rather than deciding whether they existed, the entry of summary judgment is held erroneous.\u201d Alford v. Shaw, 327 N.C. 526, 536, 398 S.E.2d 445, 452 (1990).\nThe Commission\u2019s 2 June 1997 order on its face reveals that it improperly resolved issues of fact regarding DOT\u2019s negligence. In Conclusion of Law No. 2, the Commission expressly concluded that \u201cthere was a genuine issue as to defendant\u2019s negligence . . . .\u201d Upon reaching that conclusion, it was the duty of the Commission to reverse the deputy commissioner\u2019s order dismissing plaintiff\u2019s claim and remand for a full evidentiary hearing as to DOT\u2019s negligence.\nOur review of the evidence before the Commission confirms that genuine issues of material fact exist regarding DOT\u2019s negligence. To prove negligence, a plaintiff must show that: \u201c(1) defendant failed to exercise due care in the performance of some legal duty owed to plaintiff under the circumstances; and (2) the negligent breach of such duty was the proximate cause of the injury.\u201d Bolkhir v. N.C. State Univ., 321 N.C. 706, 709, 365 S.E.2d 898, 900 (1988). In this case, the critical issue is whether the summary judgment evidence established conclusively that DOT owed a duty as to the placement and maintenance of the sign.\nIn finding DOT negligent as a matter of law, the Commission held that \u201cthe improper location of a stop sign controlling ingress to a State Highway is the legal responsibility of the Department of Transportation no matter where the sign is located and no matter who actually places the sign.\u201d Citing N.C. Gen. Stat. \u00a7 20-158(a) (2001), the Commission found: \u201cBecause the stop sign in question controlled the approach to a highway under the control of defendant, and in the absence of other proof, the Full Commission finds that the sign was in fact placed in its location by personnel of defendant or someone acting at the direction of defendant.\u201d In addition, the Commission held that \u201c[defendant was under a duty to inspect the sign to make certain that it was properly installed.\u201d\nN.C. Gen. Stat. \u00a7 20-158(a) provides:\n(a) The Department of Transportation, with reference to State highways, and local authorities, with reference to highways under their jurisdiction, are hereby authorized to control vehicles:\n(1) At intersections, by erecting or installing stop signs requiring vehicles to come to a complete stop at the entrance to that portion of the intersection designated as the main traveled or through highway. Stop signs may also be erected at three or more entrances to an intersection. .\n(2) At appropriate places other than intersections, by erecting or installing stop signs requiring vehicles to come to a complete stop.\nThe Commission erred in holding that this statute gives rise to a duty on the part of DOT.\nAlthough this Court has not considered the effect of this specific statute, it has concluded that analogous-statutes authorizing municipalities to erect signs do not, standing alone, give rise to a duty of care. In Cooper v. Town of Southern Pines, 58 N.C. App. 170, 293 S.E.2d 235 (1982), the plaintiff, who was struck by a train, sued the town, alleging in part that the town was negligent in failing to require adequate safeguards at a known hazardous railroad crossing. The plaintiff argued that N.C...Gen. Stat. \u00a7 160A-298(c) (2001), which authorizes a city to require the installation of safety devices at grade crossings, created a duty of care that the town breached. In rejecting this contention, the Court held:\nThe fact that a city has the authority to make certain decisions, however, does not mean that the city is under an obligation to do so. The words \u201cauthority\u201d and \u201cpower\u201d are not synonymous with the word \u201cduty.\u201d\nCooper, 58 N.C. App. at 173, 293 S.E.2d at 236 (emphasis original). The Court explained that the statute allowed a city to exercise its discretion in requiring safety devices, but \u201c[t]here is no mandate of action.\u201d Id. The Court therefore held as a matter of law that the town was not negligent in failing to require the installation of automatic signals at the railroad crossing. Id. at 174, 293 S.E.2d at 237. See also Estate of Jiggetts v. City of Gastonia, 128 N.C. App. 410, 414, 497 S.E.2d 287, 290 (1998) (city \u201cowed plaintiffs no affirmative duty to control traffic\u201d on a city street when N.C. Gen. Stat. \u00a7 160A-300 (1994) authorized the city to control traffic, but did not expressly require it to do so); Wilkerson v. Norfolk Southern Railway Co., 151 N.C. App. 332, 342, 566 S.E.2d 104, 111 (2002) (city could not be held liable for delaying the installation of safety devices at a railroad crossing because the city, although authorized to require safety devices, \u201chad no duty to have the warning or safety devices in place\u201d).\nHere, N.C. Gen. Stat. \u00a7 20-158(a)(l) only \u201cauthorize[s]\u201d DOT to erect or install stop signs. While DOT had authority to install a stop sign at the intersection of Standard Street with N.C. Highway 268, this statute did not mandate that it do so. The statute does not, therefore, establish that DOT had a duty to erect or necessarily had responsibility for the stop sign at issue in this case. DOT cannot be held liable for negligence based solely on the failure to erect a properly located sign at the intersection with N.C. Highway 268. DOT must have breached a duty independent of N.C. Gen. Stat. \u00a7 20-158(a).\nA duty to install a stop sign may arise if the evidence establishes that DOT knew or should have known that the intersection was hazardous. See Smith v. N.C. Dep\u2019t of Transp., 156 N.C. App. 92, 101, 576 S.E.2d 345, 352 (2003) (upholding Industrial Commission determination that DOT was negligent in connection with a railroad crossing based on the State\u2019s knowledge, because of earlier accidents and analysis from engineers, that the crossing was hazardous); Phillips v. N.C. Dep\u2019t of Transp., 80 N.C. App. 135, 137-38, 341 S.E.2d 339, 341 (1986) (DOT\u2019s \u201cduty to maintain the right-of-way necessarily carried with it the duty to make periodic inspections\u201d and it could be found negligent based on implied notice of a hazardous condition on the right-of-way). In this case, plaintiff offered no evidence that DOT knew or should have known that the intersection of Standard Street and N.C. Highway 268 was hazardous or that any hazardous condition existed on the State right-of-way.\nAlternatively, if the evidence established that DOT did erect a stop sign to govern that intersection, then it was obligated to do so in conformity with the Manual on Uniform Control Devices for Streets and Highways, published by the United States Department of Transportation. N.C. Gen. Stat. \u00a7 136-30(a) (2001) (\u201cAll traffic signs and other traffic control devices placed on a highway in the State highway system must conform to the Uniform Manual.\u201d). DOT could, under N.C. Gen. Stat. \u00a7 136-30(a), be found negligent based on a failure to comply with the Uniform Manual when erecting the stop sign.\nEven though the evidence would support a finding that the stop sign at issue in this case did not comply with the Uniform Manual, an issue of fact exists whether DOT installed the stop sign. The Commission found that \u201c[b]ecause the stop sign in question controlled the approach to a highway under the control of defendant, and in the absence of other proof, the Full Commission finds that the sign was in fact placed in its location by personnel of defendant or someone acting at the direction of defendant.\u201d DOT, however, offered evidence suggesting that it was not responsible for the installation of the stop sign, but rather that it had been erected by the Town of Elkin. Mr. Steelman testified in his deposition that the stop sign at issue did not have the sticker placed by DOT on those signs that it erects and that DOT\u2019S Division of Traffic Engineers had denied having installed the sign.\nIn further addressing DOT\u2019s contention that it did not install the stop sign, the Commission asserted, in a statement mislabeled as a finding of fact, that \u201cthe improper location of a stop sign controlling ingress to a State Highway is the legal responsibility of the Department of Transportation no matter where the sign is located and no matter who actually places the sign.\u201d This statement is an incorrect conclusion of law. N.C. Gen. Stat. \u00a7 136-30(a) provides that the DOT \u201cshall have the power to control all signs within the right-of-way of highways in the State highway system.\u201d See also Shapiro v. Toyota Motor Co., 38 N.C. App. 658, 662, 248 S.E.2d 868, 870 (1978) (when a city street becomes part of the state highway system, DOT becomes responsible for its maintenance including the \u201ccontrol of all signs and structures within the right-of-way\u201d). Thus, unless the stop sign was within the right-of-way of N.C. Highway 268, DOT did not have an obligation to inspect for and remedy the improperly placed stop sign. See Wilkerson, 151 N.C. App. at 343, 566 S.E.2d at 111 (\u201cBecause we agree with the City that authority is a prerequisite to responsibility, plaintiff\u2019s failure to allege, or present evidence of the obstructions being on City property compels us to conclude that. . . the City did not have authority over the area, and the City did not have a duty to keep the area clear.\u201d); Phillips, 80 N.C. App. at 138, 341 S.E.2d at 341 (\u201c[T]he defendant\u2019s duty to maintain the right-of-way necessarily carried with it the duty to make periodic inspections . . . .\u201d). DOT cannot be held liable for failing to discover the defective sign without a finding that the sign was within the State right-of-way.\nPlaintiff argues that the negligence decision may be based on DOT\u2019S failure to install safety devices at the railroad crossing. While the Commission found, in its 7 May 2002 decision addressing contributory negligence, that \u201c [defendant was negligent in failing to provide the warning signs, markings and traffic signals that were necessary,\u201d the other, more detailed findings of fact supporting that general finding discuss only the stop sign. Since the Commission did not base its summary judgment decision on any negligence by DOT as to the railroad crossing, we will not address that argument in the first instance.\nThe evidence before the Commission does not establish DOT\u2019S negligence as a matter of law. DOT offered sufficient evidence to raise issues of fact regarding its responsibility for the stop sign. The evidence was not, however, unequivocal and DOT is not, therefore, entitled to summary judgment on that issue.\nDefendants argue alternatively that they are entitled to summary judgment on the issue of proximate cause. We disagree. In Jordan v. Jones, 314 N.C. 106, 109, 331 S.E.2d 662, 664 (1985), the plaintiff\u2019s decedent was killed when a bus disregarded a stop sign and \u201cstop ahead\u201d sign and collided with the car in which she was a passenger. The driver of the bus and the bus company\u2019s safety director testified in their depositions that the stop sign was misplaced, causing the driver to fail to see the sign. Our Supreme Court reversed a grant of summary judgment to DOT, rejecting its argument that any negligence by it in the placement of the stop sign was not the proximate cause of the accident, but rather the cause of the accident was the bus driver\u2019s failure to observe the stop sign. The Court held: \u201cThe very basis of the defendants\u2019 claim against the DOT is that [the bus driver] failed to see the signs at the intersection because of the DOT\u2019S negligent failure to install proper signals.\u201d Id.\nLikewise, in this case, plaintiff has offered evidence that the placement of the stop sign was confusing and that the collision was due to her efforts to comply with the improperly located stop sign. The Commission could find that plaintiff\u2019s collision was proximately caused by the stop sign. The Commission, therefore, properly declined to grant summary judgment with respect to proximate cause.\nII\nDOT argues that the Commission erred in failing to find that plaintiff was contributorily negligent. When reviewing a decision of the Commission under the Tort Claims Act following an evidentiary hearing, this Court addresses two questions: \u201c(1) whether competent evidence exists to support the Commission\u2019s findings of fact, and (2) whether the Commission\u2019s findings of fact justify its conclusions of law and decision.\u201d Simmons v. N.C. Dep\u2019t of Transp., 128 N.C. App. 402, 405-06, 496 S.E.2d 790, 793 (1998). With respect to findings of fact, \u201cthe existence of contrary evidence is irrelevant if there was also competent evidence to support the Full Commission\u2019s findings.\u201d Smith, 156 N.C. App. at 98, 576 S.E.2d at 350. Since contributory negligence is a mixed question of law and fact, this Court must also determine whether the Commission\u2019s findings of fact support its conclusion that plaintiff was not contributorily negligent. Id. at 97, 576 S.E.2d at 349. We hold that competent evidence exists to support the Commission\u2019s findings, which in turn justify its conclusion that Ms. Norman was not contributorily negligent.\nWith respect to the issue of contributory negligence, the Commission first found that \u201cthe location of the stop sign was confusing\u201d and that the misplacement of the stop sign \u201cresulted in plaintiff being hit by an oncoming train when she slowed to obey the stop sign that was just beyond the railroad crossing.\u201d The Commission further found:\nDefendant alleges contributory negligence by plaintiff due to her being familiar with this railroad crossing from \u201ccruising\u201d on weekend nights. The evidence indicates that trains only traveled along these rails during the weekdays. There was testimony that other witnesses, heard a faint train whistle blow, but plaintiff never heard the train whistle. Plaintiff was not contribu-torily negligent, in that she was trying to obey the negligently placed stop sign which caused her to brake as she crossed the railroad tracks and be hit by the train. Plaintiff was distracted while trying to obey the negligently placed stop sign that was supposed to control an intersection with a state maintained highway in which defendant has the duty to provide for safe ingress and egress.\nA review of the record reveals that each of the factual findings related to contributory negligence is supported by competent evidence.\nThe finding that the placement of the stop sign was confusing is supported by testimony from Mr. Steelman, a Field Support Engineer with DOT: \u201cI think it would confuse me.\u201d When viewing a photograph of the railroad crossing where the accident occurred, Mr. Steelman testified that he could not tell whether the stop sign at issue controlled traffic crossing the tracks or traffic entering the highway.\nMs. Norman testified that while she had crossed the tracks before, she had never before encountered a train. DOT\u2019s witness Wayne Atkins confirmed that trains traveled through the Town of Elkin only once a week and only during the daytime. Ms. Norman\u2019s testimony at the hearing suggested that, even as of that date, she still did not understand the stop sign to be directing her to stop later on at the highway, as DOT has argued, rather than at the stop sign itself.\nWith respect to the question whether Ms. Norman should have heard or seen the train, Phillip Lyles, a passenger in the car immediately behind Ms. Norman\u2019s car, testified that when he heard the train\u2019s horn, it sounded as if it was a substantial distance away and that he did not see the train or hear it again until it collided with Ms. Norman\u2019s car. Ms. Norman testified that had she heard the train\u2019s whistle, she would not have crossed the railroad tracks.\nDefendant argues that because of Ms. Norman\u2019s loss of memory, the evidence does not support a finding that she was trying, when hit, to obey the improperly placed stop sign. That inference may, however, be drawn from the testimony. Carl McCann, a witness for DOT, testified that a person attempting to obey that stop sign would start slowing down and braking some distance prior to the stop sign. Mr. Lyles, who was watching Ms. Norman\u2019s car, saw her brake lights come on, the car slow down, and then the brake lights come on a second time. According to Mr. Lyles, Ms. Norman was traveling only two to three miles per hour immediately prior to the collision. This testimony is sufficient to support the Commission\u2019s inference that Ms. Norman had slowed down in an attempt to obey the stop sign.\nDefendant argues that these findings of fact, even if supported by evidence, are insufficient to justify the conclusion that plaintiff was not contributorily negligent. Defendant first contends that plaintiff was obligated to stop prior to the railroad tracks, citing N.C. Gen. Stat. \u00a7 20-142.1 (2001). Under \u00a7 20-142.1(a)(3) and (4), a person is required to stop not less than 15 feet from the nearest rail of the railroad whenever a train approaching within 1,500 feet of the crossing emits a signal audible from that distance and the train is an immediate hazard because of its speed or nearness to the crossing or when an approaching train is \u201cplainly visible and is in hazardous proximity to the crossing.\u201d The evidence was, however, conflicting as to whether the train issued a signal audible from 1,500 feet of the highway crossing and whether the approaching train was plainly visible.\nThe statute also provides that a \u201c[violation of this section shall not constitute negligence per se.\u201d N.C. Gen. Stat. \u00a7 20-142.1(d). As our Supreme Court has explained, when a statutory violation \u201cis declared not to be negligence per se, the common law rule of ordinary care applies, and a violation is only evidence to be considered with other facts and circumstances in determining whether the violator used due care.\u201d Carr v. Murrows Transfer, Inc., 262 N.C. 550, 554, 138 S.E.2d 228, 231 (1964).\nThe Commission concluded, citing Nourse v. Food Lion, Inc., 127 N.C. App. 235, 488 S.E.2d 608 (1997), aff'd per curiam, 347 N.C. 666, 496 S.E.2d 379 (1998), that Ms. Norman was not contributorily negligent. Nourse relied upon the well-established principle that a plaintiff who does not discover an obvious hazard is not contributorily negligent as a matter of law if \u201cthere is some fact, condition, or circumstance which would or might divert the attention of an ordinarily prudent person from discovering or seeing an existing dangerous condition . . . .\u201d Id. at 241, 488 S.E.2d at 613 (internal quotation marks omitted). See also Newton v. New Hanover County Bd. of Educ., 342 N.C. 554, 564, 467 S.E.2d 58, 65 (1996) (quoting Walker v. Randolph Co., 251 N.C. 805, 810, 112 S.E.2d 551, 554 (1960)) (Aplaintiffs failure to discover and avoid a visible defect \u201cis not applicable where there is \u2018some fact, condition, or circumstance which would or might divert the attention of an ordinarily prudent person from discovering or seeing an existing dangerous condition.\u2019 \u201d).\nThe Commission\u2019s findings that Ms. Norman did not hear the train whistle and, therefore, was not aware that the train was approaching and that she failed to see the train because she was distracted by the misplaced stop sign are sufficient to invoke this doctrine. While DOT offered evidence suggesting that Ms. Norman should have realized that a train was approaching, reasonable inferences can also be drawn from the evidence, as the Commission did, that Ms. Norman\u2019s attention was focused on the stop sign to the right side of the tracks and that she was slowing to obey that stop sign. The decision regarding which inference to draw was for the Commission and may not be overturned on appeal. \u201cInferences from circumstances when reasonably drawn are permissible and that other reasonable inferences could have been drawn is no indication of error; deciding which permissible inference to draw from evidentiary circumstances is as much within the fact finder\u2019s province as is deciding which of two contradictory witnesses to believe.\u201d Snow v. Dick & Kirkman, Inc., 74 N.C. App. 263, 267, 328 S.E.2d 29, 32 (citing Blalock v. City of Durham, 244 N.C. 208, 92 S.E.2d 758 (1956)), disc. review denied, 314 N.C. 118, 332 S.E.2d 484 (1985).\nWe conclude that the Commission\u2019s findings of fact as to the defense of contributory negligence are supported by competent evidence and that those findings in turn support its conclusion that plaintiff was not contributorily negligent. The case must, however, be remanded for a trial as to DOT\u2019S negligence. Because of our disposition of the negligence issue, we need not consider appellant\u2019s remaining arguments.\nAffirmed in part. Reversed and remanded in part. .\nJudges TIMMONS-GOODSON and BRYANT concur.", "type": "majority", "author": "GEER, Judge." } ], "attorneys": [ "Daniel J. Park, for plaintiff-appellee.", "Attorney General Roy Cooper, by Special Deputy Attorney General William H. Borden, for defendant-appellant." ], "corrections": "", "head_matter": "SUSAN NORMAN, Plaintiff v. NORTH CAROLINA DEPARTMENT OF TRANSPORTATION, Defendant\nNo. COA02-1053\n(Filed 18 November 2003)\n1. Highways and Streets\u2014 stop sign \u2014 placement and maintenance \u2014 duty of State\nDOT did not owe plaintiff a duty in the placement and maintenance of a stop sign controlling the flow of traffic onto a highway close to a railroad crossing, and the Industrial Commission erred by finding DOT negligent as a matter of law in an action arising from an automobile-train collision at the crossing.\n2. Tort Claims Act\u2014 railroad crossing accident \u2014 contributory negligence\nCompetent evidence existed to justify the Industrial Commission\u2019s conclusion, following an evidentiary hearing and findings, that the plaintiff in a railroad crossing action was not contributorily negligent. While DOT offered evidence that plaintiff should have realized that a train was approaching, reasonable inferences could have been drawn from the evidence that plaintiffs attention was focused on a stop sign to the right of the tracks and that she was slowing to obey that sign. The choice of inferences was for the Commission.\nAppeal by defendant from the Decision and Order filed 2 June 1997 and from Decision and Order filed 7 May 2002 by the North Carolina Industrial Commission. Heard in the Court of Appeals 23 April 2003.\nDaniel J. Park, for plaintiff-appellee.\nAttorney General Roy Cooper, by Special Deputy Attorney General William H. Borden, for defendant-appellant." }, "file_name": "0211-01", "first_page_order": 241, "last_page_order": 254 }