{
  "id": 8917453,
  "name": "CLAUDE M. VIAR, JR., Co-administrator of the Estate of MEGAN RAE VIAR, Deceased, and Co-administrator of the Estate of MACEY LAUREN VIAR, Deceased, Plaintiff v. N.C. DEPARTMENT OF TRANSPORTATION, Defendant",
  "name_abbreviation": "Viar v. N.C. Department of Transportation",
  "decision_date": "2004-02-03",
  "docket_number": "No. COA03-25",
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  "last_page": "385",
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          "page": "422",
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          "page": "814"
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      "cite": "300 N.C. 286",
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        {
          "parenthetical": "noting that the NCDOT may have a duty to install a stop sign if the evidence establishes that NCDOT knew or should have known that, an intersection was hazardous, the breach of which duty gives rise to a cause of action under the Torts Claim Act"
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      "cite": "395 S.E.2d 85",
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          "page": "900",
          "parenthetical": "citing W. Prosser, Handbook of the Law of Torts \u00a7 31 (5th ed. 1984), and Hairston v. Alexander Tank & Equipment Co., 310 N.C. 227, 232, 311 S.E.2d 559, 564 (1984)"
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          "parenthetical": "stating that the NCDOT's \"duty to maintain the right-of-way necessarily carried with it the duty to make periodic inspections\" and concluding that the NCDOT could be found negligent based on implied notice of a hazardous condition on the right-of-way"
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      "cite": "5 N.C. App. 188",
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          "parenthetical": "quoting Guyton v. North Carolina Board of Transp., 30 N.C. App. 87, 90, 226 S.E.2d 175, 177 (1976)"
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    {
      "cite": "142 L. Ed. 2d 449",
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        {
          "parenthetical": "internal citations omitted"
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    {
      "cite": "525 U.S. 1016",
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        {
          "parenthetical": "quoting Bolkhir v. N.C. State Univ., 321 N.C. 706, 709, 365 S.E.2d 898, 900 (1988)"
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        2492933,
        2490126,
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      "cite": "93 N.C. App. 214",
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    {
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      "cite": "461 S.E.2d 921",
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      "cite": "560 S.E.2d 800",
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    "judges": [
      "Judge WYNN concurs.",
      "Judge TYSON dissents."
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    "parties": [
      "CLAUDE M. VIAR, JR., Co-administrator of the Estate of MEGAN RAE VIAR, Deceased, and Co-administrator of the Estate of MACEY LAUREN VIAR, Deceased, Plaintiff v. N.C. DEPARTMENT OF TRANSPORTATION, Defendant"
    ],
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      {
        "text": "LEVINSON, Judge.\nOn 12 June 1997 Megan and Macey Viar were killed in a motor vehicle accident occurring in Rowan County, North Carolina, on Interstate Highway 85 (1-85). Melissa Viar, the decedents\u2019 sister, was driving south on 1-85 in a heavy rainstorm when she lost control of her car, hit another southbound vehicle, went across the grass median separating the north and southbound lanes, \u00e1nd collided with a tractor-trailer truck. Her younger sisters died instantly, and Melissa suffered serious injuries.\nOn 6 March 1998 Claude Viar, father of the decedents and plaintiff herein, filed an affidavit with the Industrial Commission under the North Carolina Tort Claims Act, N.C.G.S. \u00a7 143-291 et seq., stating a claim for negligence against the N.C. Department of Transportation (NCDOT). Plaintiff alleged his daughters\u2019 deaths were proximately caused by the absence of a guard rail or median barrier between the north and southbound lanes of 1-85. Plaintiff\u2019s affidavit was later amended to allege negligence on the part of one or more of the following employees of NCDOT: Garland Garrett, Jr., Larry Goode, B.G. Jenkins, Jr., Don Morton, J. Don Goins, Douglas Waters, and Tom Shearin, \u201cor any other state employee who would have been responsible for not placing median barriers in the stretch of 1-85 in Rowan County where this accident occurred.\u201d Plaintiff\u2019s claim was heard before a deputy commissioner of the Industrial Commission in May of 2000, and on 20 November 2000 the deputy commissioner issued an opinion denying plaintiff\u2019s claim. Plaintiff appealed to the Full Commission, which reviewed his claim on 17 December 2001. On 20 August 2002 the Industrial Commission issued an opinion and award affirming the decision of the deputy commissioner and denying plaintiff\u2019s claim. The Commission concluded that plaintiff had failed to show that NCDOT was negligent in not installing a median barrier on the section of highway where the accident took place. Plaintiff appeals from this opinion and award, and presents one argument on appeal: that the Industrial Commission erred by failing to find that the NCDOT\u2019s negligence in not installing median barriers in the section of 1-85 where the accident occurred was the proximate cause of the decedents\u2019 death.\nStandard of Review\nPlaintiff\u2019s negligence claim was brought under the Tort Claims Act, N.C.G.S. \u00a7 143-291. \u201cThe Tort Claims Act was enacted in order to enlarge the rights and remedies of a person who is injured by the negligence of a State employee who was acting within the course of his employment. Pursuant to [N.C.G.S. \u00a7 143-291(a)], the [Industrial] Commission has exclusive jurisdiction to hear claims falling under this Act.\u201d Simmons v. N.C. Dept. of Transportation, 128 N.C. App. 402, 405, 496 S.E.2d 790, 792-93 (1998) (citing Wirth v. Bracey, 258 N.C. 505, 508, 128 S.E.2d 810, 813 (1963)).\nThe Tort Claims Act directs the Industrial Commission to determine whether the plaintiffs claim \u201carose as a result of the negligence of any officer, employee,... or agent of the State while acting within the scope of his office, employment, service, agency or authority, under circumstances where ... a private person, would be liable to the claimant in accordance with the laws of North Carolina.\u201d N.C.G.S. \u00a7 143-291 (2003). Accordingly, \u201c \u2018[bjefore an award of damages can be made under the Tort Claims Act, there must be a finding of a negligent act by an officer, employee, servant or agent of the State.\u2019 \u201d Smith v. N.C. Dep\u2019t of Transp., 156 N.C. App. 92, 100, 576 S.E.2d 345, 351 (2003) (quoting Taylor v. Jackson Training School, 5 N.C. App. 188, 191, 167 S.E.2d 787, 789 (1969). The plaintiff has the burden of proof on the issue of negligence. Bailey v. N. C. Dept. of Mental Health, 2 N.C. App. 645, 651, 163 S.E.2d 652, 656 (1968).\nThe NCDOT is liable under the Tort Claims Act for the negligence of its employees. Smith v. N.C. Dep\u2019t of Transp., 156 N.C. App. 92, 100, 576 S.E.2d 345, 351 (2003). Under current law, the State is liable for negligent omissions, as well as negligent actions. Phillips v. N.C. Dept. of Transportation, 80 N.C. App. 135, 136-37, 341 S.E.2d 339, 340-41 (1986). Further, liability does not require that the negligence of an employee be the sole proximate cause of injury. Trust Co. v. Board of Education, 251 N.C. 603, 609, 111 S.E.2d 844, 849 (1960).\nOn appeal, this Court \u201cis limited to two questions: (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 Fennell v. N.C. Dep\u2019t of Crime Control & Pub. Safety, 145 N.C. App. 584, 589, 551 S.E.2d 486, 490 (2001) (citations omitted). The Commission\u2019s findings of fact are conclusive on appeal if supported by any competent evidence, notwithstanding the presence of other evidence that might have supported a contrary finding. Simmons v. N.C. Dept. of Transportation, 128 N.C. App. 402, 405, 496 S.E.2d 790, 793 (1998). \u201cHowever, the findings of fact of the Industrial Commission are conclusive on appeal only when supported by evidence, and the Court, on appeal, may review the evidence to determine as a matter of law whether there is any evidence tending to support the findings.\u201d Vause v. Equipment Co., 233 N.C. 88, 93, 63 S.E.2d 173, 177 (1951) (citing Hildebrand v. Furniture Co., 212 N.C. 100, 193 S.E. 294 (1937)).\n\u201cThe determination of negligence, proximate cause and contributory negligence requires an application of principles of law to the determination of facts. These are, therefore, mixed questions of law and fact and so are reviewable on appeal from the commission, the designations \u2018Finding of Fact\u2019 or \u2018Conclusion of Law\u2019 by the commission not being conclusive.\u201d Martinez v. Western Carolina University, 49 N.C. App. 234, 239, 271 S.E.2d 91, 94 (1980) (citing Brown v. Board of Education, 269 N.C. 667, 153 S.E.2d 335 (1967)). In the instant case, we conclude that the Industrial Commission\u2019s legal conclusions are based upon erroneous application of the law to the facts, and are not supported by its findings of fact.\nPlaintiff\u2019s evidence established the following .uncontested facts: In 1993, NCDOT completed a study of the relationship between median barriers on interstate highways and accidents in which a vehicle crosses the median strip (cross-median accidents) on interstate highways. The NCDOT study reviewed over 2900 accidents occurring between 1988 and 1991, and concluded that (1) cross-median accidents account for only 3% of interstate accidents but 32% of fatalities; (2) cross-median accidents are \u201csteadily increasing\u201d in number and severity, are three times as likely as other accidents to result in death, and caused 105 fatalities during the study period; (3) the number of cross-median accidents is not associated with impaired driving or with high driving speeds; and that (4) guardrails or median barriers installed in the median strip would prevent many, if not most, of these fatal cross-median interstate accidents in North Carolina. The 1993 NCDOT study identified the 24 sections of interstate highway with the greatest number of cross-median accidents, and prioritized these locations with regards to the installation of median barriers.\nNeither relevant industry standard publications nor state and federal regulations required that median barriers be installed. Thus, the absence of median barriers did not place NCDOT in violation of statutory law or national road design standards. However, as a result of its study, NCDOT officials decided that median barriers should be installed at 24 locations on N.C. interstate highways. NCDOT ranked these 24 locations in the order of priority for installation of guardrails.\nFunding for NCDOT construction is allocated by the State legislature, and supplemented by certain federal funds. Funding is a complex process, requiring that NCDOT obtain input from various citizen and government groups, prioritize its projects, allocate resources, and coordinate projects when appropriate. The cost of adding a median barrier to the Rowan County 1-85 location was estimated at $1,344,000.00, with annual maintenance estimated to be over $200,000. With all these factors in mind, NCDOT decided in 1993 to stagger the installation of median guardrails at the 24 identified locations over a five year period.\nIn 1994, the first of these 24 median barriers was completed, on 1-40 between Raleigh and Research Triangle Park (RTP). There have been no fatal cross-median accidents on this segment of 1-40 since the median barrier was installed. The section of 1-85 where the accident at issue herein occurred (the \u201cRowan County 1-85 location\u201d) was initially ranked number seven, but after median barriers were installed on 1-40, the section of 1-85 where the accident took place moved up to sixth place in the priority list. In 1993, NCDOT anticipated that the area of the Rowan County 1-85 location would be widened during the five year time frame or shortly thereafter. To avoid installing temporary barriers that would need to be removed during construction, NCDOT decided to incorporate the addition of guardrails into this larger construction project, \u201cunless additional accidents require earlier action.\u201d In 1995, following \u201cseveral severe accidents\u201d on this stretch of road, NCDOT reduced the speed limit in the stretch of 1-85 where the accident occurred from 65 to 55 mph. As of the date of the accident, the 1-85 widening project had not yet been funded, and NCDOT had not installed a median barrier along the Rowan County 1-85 location.\nBetween January, 1994 and June, 1997 there were ninety-six (96) additional deaths resulting from cross-median interstate accidents on North Carolina\u2019s interstate highways. During this time period NCDOT did not install median barriers at any of the remaining 23 locations identified in the 1993 study. The accident that claimed the lives of the Viar girls occurred on 12 June 1997. Within a few weeks of the accident, funding was provided to install guardrails at all 23 highway segments chosen by NCDOT in 1993 for installation of median barriers.\nThe gravamen of plaintiffs evidence was that (1) the NCDOT was negligent in failing to install a median barrier at the Rowan County 1-85 location within four years of its decision to do so, and that (2) the installation of median barriers almost immediately after the accident demonstrated that the resources to do so were available.\nThe defendant did not present any evidence at the hearing.\nThe Industrial Commission entered an order denying plaintiffs claim on the basis that plaintiff had failed to prove negligence. In its order, the Commission made 58 findings of fact. Findings 1 through 12 set out the facts surrounding the accident. Specifically, findings 6, 8, 9, and 10, state the following:\n6. North Carolina Highway Patrol Trooper D.R. Brackman . . . affirmed there was extremely heavy rain on this evening. [He] stated it was one of the heaviest rains he could ever remember.\n8. Trooper Brackman found the Viar vehicle had originally traveled in the outside of two (2) southbound lanes on 1-85. Trooper Brackman also found the Viar vehicle struck another vehicle in the inside southbound lane of the divided highway causing both vehicles to enter the median.\n9. This portion of 1-85 is a straight and level road.\n10. Trooper Brackman determined the Viar vehicle had then continued across the median and had been broadsided on the passenger side by a northbound tractor-trailer.\nFindings 13 through 18 discuss the 1993 NCDOT study, NCDOT\u2019s decision to install median barriers at 24 locations, and its decision to incorporate the Rowan County 1-85 median barrier with a planned widening of 1-85. Findings 19 through 23 establish that NCDOT was not required by law to install median barriers, and was not in violation of nationally recognized road design standards by not having median barriers. Findings 24 through 35 set out in general terms the hierarchy and roles of certain NCDOT officials in NCDOT\u2019s decisions regarding what projects to undertake; these findings also outline the general procedures and policies governing NCDOT funding. Findings 36 through 56 set out the general considerations relevant to funding of NCDOT projects by the State legislature, and outline the general procedures that are followed by NCDOT in obtaining funding for road work. Findings of fact 57 and 58 are more properly termed conclusions of law, and state the following:\n57. The North Carolina Department of Transportation has the authority, duty and responsibilities to plan, design, locate, construct and maintain the existing public highways in the State of North Carolina.\n58. The standard of care applicable to this case is negligence. The defendant\u2019s duty to the general public, including plaintiffs, is to plan, design, locate, construct and maintain the public highways in the State of North Carolina with reasonable care. The defendant is not strictly liable for every person injured on the roads subject to its jurisdiction. Several factors are relevant to defendant\u2019s performance of these duties including, but not limited to, funding limitations, coordination of construction projects, and implementation of alternative means to effect the safety of the public highways. Defendant has asserted that its decisions concerning the improvement of 1-85, in the area of the accident in question, were reasonable and prudent because of limitations on funding, a desire to coordinate the installation of guardrails with the widening of the highway from four to six or eight lanes. In addition, defendant sought to make this stretch of road safer by reducing the speed limit from 65 miles per horn to 55 miles per hour. Although there was evidence that guardrails would have been prudent, the greater weight of the evidence is that defendant\u2019s actions in prioritizing the various installation of median guardrail projects, allocation of highway improvement funds due to budgetary constraints, coordination of the guardrails with other construction, and reduction in traffic speed were reasonable and prudent steps to effectuate the safety of the public on the highway in question. Therefore, the defendant did not breach its duty to the general public, and to plaintiff, and was not negligent.\nOn this basis the Industrial Commission ruled that plaintiff was not entitled to recover from NCDOT.\n\u201cUnder the Tort Claims Act negligence, contributory negligence and proximate cause . . . are to be determined under the same rules as those applicable to litigation between private individuals.\u201d Barney v. Highway Comm., 282 N.C. 278, 284, 192 S.E.2d 273, 277 (1972) (citation omitted). Accordingly, we first review certain relevant common law principles of negligence law. The most basic of these is that:\nThe essence of negligence is behavior creating an unreasonable danger to others. To establish actionable negligence, plaintiff must show that: (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.\nBolkhir v. N.C. State Univ., 321 N.C. 706, 709, 365 S.E.2d 898, 900 (1988) (citing W. Prosser, Handbook of the Law of Torts \u00a7 31 (5th ed. 1984), and Hairston v. Alexander Tank & Equipment Co., 310 N.C. 227, 232, 311 S.E.2d 559, 564 (1984)). In this regard, the NCDOT has a duty \u201cto provide for the necessary planning, construction, maintenance, and operation of an integrated statewide transportation system for the economical and safe transportation of people and goods[.]\u201d N.C.G.S. \u00a7 143B-346 (2003). Evidence of remedial measures, although \u201cnot admissible to prove negligence or culpable conduct\u201d nonetheless is admissible \u201cfor other purposes such as \u2018proving ownership, control, or feasibility of precautionary measures, if those issues are controverted[.]\u2019 \u201d Smith v. N.C. Dept. of Nat. Resources, 112 N.C. App. 739, 746, 436 S.E.2d 878, 883 (1993) (quoting N.C.G.S. \u00a7 8C-1, Rule 407). Further, a defendant's notice of a source of danger is also relevant to the question of whether NCDOT was negligent in failing to prevent the particular harm. Gordon v. Highway Commission, 250 N.C. 645, 647, 109 S.E.2d 376, 377-78 (1959).\nWe conclude that in the instant case the Industrial Commission\u2019s findings of fact fail to support its conclusion of law. We further conclude that the Industrial Commission failed to make findings of fact on certain crucial and material issues, and that it misapplied the law in its consideration of the monetary cost of installing a median barrier.\nFirst, the Industrial Commission\u2019s findings of fact were inadequate to support its conclusion that defendant\u2019s actions in delaying construction of the proposed median barrier were reasonable with regard to maintaining safe transportation. Although the Commission made numerous findings, the majority of the findings are overly general or lack appropriate context. For example, the Commission found that the projected construction costs of the proposed median barrier were \u201c$1,340,000.00 with annual maintenance costs of $245,549.00.\u201d Findings related to the Department of Transportation\u2019s annual budget, funding availability for the specific site, the likelihood of median accidents, and the likelihood of harm caused by such accidents would help provide some appropriate context. Without such findings to provide an economic context, a bare recital of the projected costs of construction and maintenance of the median barrier is meaningless. Other findings by the Commission, outlining DOT procedures for implementing transportation projects and the requisite funding processes associated therewith, are similarly inadequate in their generality, and do not support a conclusion that defendant\u2019s delay in constructing the median barrier was reasonable.\nWe conclude next that, in addition to making generally insufficient findings of fact, the Industrial Commission erred in its analysis of the monetary cost of installing a median barrier. \u201cTraditionally, courts have distinguished between negligence claims based on affirmative acts and those based on omissions.\u201d Davidson v. Univ. of N.C. at Chapel Hill, 142 N.C. App. 544, 553-54, 543 S.E.2d 920, 926 (2001) (citing David A. Logan and Wayne A. Logan, North Carolina Torts \u00a7 1.20, at 8 (1996)). Plaintiff herein alleged that NCDOT was negligent by omission, or failure to take actions necessary for the exercise of reasonable care. Thus, common law standards applicable to claims of negligent omission have particular relevance to our decision. In this regard, the Industrial Commission\u2019s conclusion that NCDOT was not negligent was based in large part on its consideration of the monetary cost of installing median barriers, and the Commission\u2019s assessment of various economic factors and considerations that shape NCDOT\u2019s budgetary decisions. We conclude that the Commission erred in its evaluation of this issue.\nGenerally speaking, a negligent omission is \u201cthe omission or failure to do that which a reasonable prudent person . . . would do[.]\u201d Billings v. Trucking Corp., 44 N.C. App. 180, 182, 260 S.E.2d 670, 672 (1979). In its determination of whether a party negligently failed to take the reasonable precautions to prevent harm, the Industrial Commission is not necessarily required to assess the financial aspects of a negligence claim. See, e.g., Smith v. N.C. Dep\u2019t of Transp., 156 N.C. App. 92, 95, 576 S.E.2d 345, 348 (2003) (upholding an opinion regarding defendant\u2019s negligence that did not address the cost to NCDOT of installing warning signs). However, where, as here, the Commission makes at least twenty findings related to the financial cost to defendant, the Commission must properly assess the economic burden on defendant in assessing reasonable care.\nThe long-standing common law rule is that the economic cost of preventative measures is relevant to the issue of the failure to use reasonable care only if it is evaluated in connection with the likelihood of the injury occurring in the absence of preventative measures, and of the severity of harm that would result from the injury:\n[T]he basic approach to negligence law outlined by Judge Learned Hand in United States v. Carroll Towing Co., 159 F.2d 169 (2d Cir. 1947), essentially defines negligence as the unreasonable balancing of the cost of safety measures against the risk of accidents. See id. at 173 (explaining that \u2018if the probability [of an accident] be called P; the injury, L; and the burden [of adequate precautions], B; liability depends upon whether B is less than L multiplied by P: i.e., whether B<PL\u2019).\nSmith v. WAMTA, 290 F.3d 201, 215 (4th Cir. 2002) (Michael, Circuit Judge, concurring in part and dissenting in part), cert. denied, 537 U.S. 950, 154 L. Ed. 2d 296 (2002). Another case from the 4th Circuit noted that \u201ca person\u2019s duty to prevent injuries from an accident \u2018is a function of three variables: (1) The probability that (the accident will occur); (2) the gravity of the resulting injury, if (it) does; (3) the burden of adequate precautions.\u2019 \u201d Pruitt v. Allied Chemical Corp., 523 F. Supp. 975, 978 n.11 (E.D. Vir. 1981) (quoting United States v. Carroll Towing Co., 159 F.2d 169, 173 (2d Cir. 1947)). This venerable framework for analyzing the conventional negligence standard has also been discussed in at least one N.C. case:\nLearned Hand proposed his famous cost-benefit equation in an effort to distinguish between risks which were worth taking and those which were not. . . . n3 Hand described the duty of an actor to protect against resulting injuries as being a function of three variables: (1) the probability (P) of injury occurring, (2) the gravity (L) of resulting injury, and (3) the burden (B) of adequate precautions. Hand described this relationship algebraically as an inquiry as to whether B<PL.\nJohnson v. Ruark Obstetrics, 327 N.C. 283, 312 n.3, 395 S.E.2d 85, 102 n.3 (1990) (Justice Meyer, dissenting) (citing United States v. Carroll Towing Co., 159 F.2d 169 (2d Cir. 1947)).\nConsideration of the economic cost or burden of precautions in relation to the likelihood and degree of risk is consistent with the general rule that negligence is the failure to take reasonable care:\nThere are various ways in which courts formulate the negligence standard. The . . . most precise is . . . whether the burden of precaution is less than the magnitude of the accident, if it occurs, multiplied by the probability of occurrence.... This is the famous \u2018Hand Formula\u2019[.]... Illinois courts do not cite the Hand Formula but instead define negligence as failure to use reasonable care, a term left undefined. But as this is a distinction without a substantive difference, we have not hesitated to use the Hand Formula[.] ...\nMcCarty v. Pheasant Run, Inc., 826 F.2d 1554, 1556-57 (7th Cir. 1987). The same principle has also been articulated as follows:\nThe test for determining whether a risk is unreasonable is . . . the result of three factors: the likelihood that his conduct will injure others, taken with the seriousness of the injury if it happens, and balanced against the cost of the precaution he must take to avoid the risk.\nFrelow v. St. Paul Fire & Marine Ins., 631 So. 2d 632, 635 (La. Ct. App. 1994).\nWe conclude, based upon relevant common law principles of negligence law, that proper consideration of the financial cost of preventing an injury requires that the fact-finder assess the economic cost in conjunction with both the likelihood of the risk occurring and the degree of harm that would result. In doing so, we note that the Industrial Commission need not employ the precise \u201cHand formula\u201d in its determination. Accordingly, a fact-finder does not consider the dollar amount of preventative measures in a vacuum, for without consideration of the severity and likelihood of the risk to be prevented, the fact-finder cannot evaluate whether the expenditure would be reasonable.\nIn the instant case, the Industrial Commission\u2019s opinion does not reflect consideration of cost in the context of the risk of harm and the likely severity of harm. The Industrial Commission based its conclusion that NCDOT had exercised reasonable care primarily upon an extensive recitation of the general factors and circumstances pertaining to NCDOT\u2019s funding and budgetary considerations. However, nothing in the Industrial Commission\u2019s opinion indicates that the dollar amount was evaluated in the context of the likelihood of an accident occurring at the Rowan County 1-85 location and the degree of harm that might be caused by such an accident. We emphasize that the Industrial Commission is not required to evaluate the financial cost of preventative measures in every case. However, inasmuch as the Industrial Commission\u2019s order is premised, at least in part, on this basis, the economic burden must be assessed in relation to the other factors discussed above. We conclude that the Industrial Commission erred by relying in part upon consideration of \u201cfunding limitations\u201d and \u201cbudgetary constraints\u201d without assessing these in connection with the likelihood of a fatal accident occurring if median barriers were not installed. Because we cannot tell the extent to which the Commission\u2019s opinion is based on this factor, the case must be remanded.\nFinally, we conclude that the Industrial Commission failed to make findings of fact addressing issues material to its decision. \u201cThe Commission is the sole fact finding agency in cases in which it has jurisdiction . . . [S]pecific findings by the Commission with respect to the crucial facts, upon which the question of plaintiffs right to compensation depends, are required.\u201d Morgan v. Furniture Industries, Inc., 2 N.C. App. 126, 127-28, 162 S.E.2d 619, 620 (1968) (citation omitted).\nIn Martinez v. Western Carolina University, 49 N.C. App. 234, 271 S.E.2d 91 (1980), the plaintiff alleged that certain State employees had negligently \u201cfail[ed] to obtain timely and adequate examination, diagnosis and treatment of claimant\u2019s injuries.\u201d This Court held:\n[T]he issue of whether [defendants were] . . . negligent in failing to obtain timely and adequate examination, diagnosis and treatment of claimant\u2019s injuries. . . . engenders three distinct findings which must be made: (1) was there an unreasonable delay ... (2) if so, was the delay caused by [defendants]? and (3) if so, was the delay a proximate cause of plaintiff\u2019s injury? . . . [T]he commission\u2019s finding that \u2018the defendant\u2019s employees . . . were guilty of no negligent conduct proximately causing damage to Martinez\u2019 is not sufficient to meet its duty to make specific findings as to each material fact upon which the rights of the parties depend.\nId. at 240, 242, 271 S.E.2d at 94-95.\nIn the instant case, the Industrial Commission\u2019s findings of fact fail to address plaintiff\u2019s central contentions \u2014 that after NCDOT made its initial prioritizing decisions, it was negligent not to install a median barrier during the following four years, given (1) failure of the expected funding for widening of 1-85 to materialize, (2) the continued accidents in that location, (3) the demonstrated success in reducing or eliminating fatalities that was observed when 1-40 got medians, and (4) the availability of funds, as evidenced by NCDOT\u2019s installation of median barriers after the accident. Thus, the thrust of plaintiff\u2019s argument \u2014 that the delay was unreasonable \u2014 was not addressed in the Industrial Commission\u2019s findings of fact. Plaintiff alleged negligence in NCDOT\u2019s delay after it made its initial discretionary decision about when, where and on what prioritization schedule to install the barriers. The Industrial Commission\u2019s findings of fact and conclusions of law fail to address this issue.\nAs discussed above, there also are no findings of fact pertinent to the risk of injury as related to the presence or absence of median barriers. This is relevant to assessment of reasonable care, even absent financial considerations. The findings of fact include only one potentially relevant statement about risk: that there are \u201cmore head-on crashes on two lane roads.\u201d\nThe dissent contends the Department of Transportation cannot be held liable to plaintiff under the public duty doctrine. We note that the NCDOT has not raised this issue on appeal. Moreover, the public duty doctrine has never been applied to shield the NCDOT from acts of negligence. See, e.g., Norman v. N.C. Dep\u2019t of Transp., 161 N.C. App. 211, 588 S.E.2d 42 (2003) (noting that the NCDOT may have a duty to install a stop sign if the evidence establishes that NCDOT knew or should have known that, an intersection was hazardous, the breach of which duty gives rise to a cause of action under the Torts Claim Act); Smith v. N.C. Dep\u2019t of Transp., 156 N.C. App. at 101, 576 S.E.2d at 351-52 (affirming the Commission\u2019s finding that the DOT negligently failed to maintain a railroad crossing, in dereliction of its statutory duty to do so); Phillips v. N.C. Dept. of Transportation, 80 N.C. App. 135, 138, 341 S.E.2d 339, 341 (1986) (stating that the NCDOT\u2019s \u201cduty to maintain the right-of-way necessarily carried with it the duty to make periodic inspections\u201d and concluding that the NCDOT could be found negligent based on implied notice of a hazardous condition on the right-of-way). Further, the construction and maintenance of the state highway system is not an exercise of the NCDOT\u2019s \u201cdiscretionary authority so conferred upon it by statute\u201d as asserted by the dissent. See Guyton v. Board of Transportation, 30 N.C. App. 87, 90, 226 S.E.2d 175, 177 (1976) (holding that the defendant Board of Transportation did not abuse its authority when it excavated and removed a highway adjacent to the plaintiffs\u2019 property, where the North Carolina General Statutes specifically granted the defendant discretionary authority to take such action \u201cwhen in its judgment the public good require[d] it\u201d).\nWe also disagree with the dissenting opinion\u2019s conclusion that this appeal must be dismissed for failure to comply with the Rules of Appellate Procedure. While the failure to comply with the appellate rules subjects an appeal to dismissal, Steingress v. Steingress, 350 N.C. 64, 511 S.E.2d 298 (1999), this Court may suspend or vary the requirements of the rules to \u201cprevent manifest injustice,\u201d N.C.R. App. P. 2, or \u201cas a matter of appellate grace.\u201d Enterprises, Inc. v. Equipment Co., 300 N.C. 286, 288, 266 S.E.2d 812, 814 (1980). The dissenting opinion cites Shook v. County of Buncombe, 125 N.C. App. 284, 480 S.E.2d 706 (1997), in support of dismissal. In Shook, the appellant\u2019s brief presented \u201ca number of interwoven and complicated issues, amidst a record on appeal of three volumes and seven hundred and sixty-seven (767) pages.\u201d Id. at 286, 480 S.E.2d at 707. The Court explained that such\ncircumstances highlight why our appellate rules are a necessity. When we are presented with an appeal such as the instant one, the rules are not merely ritualistic formalisms, but are essential to our ability to ascertain the merits of an appeal. Furthermore, the appellate rules promote fairness by alerting both the Court and appellee to the specific errors appellant ascribes to the court below.\nId.\nIn this case, the dissenting opinion does not assert that the rules violations by plaintiff impede comprehension of the issues on appeal by the appellee or this Court, or that the appellate process has been otherwise frustrated. Nor does the record support such a conclusion. Unlike Shook, the record here is not lengthy, nor are the issues complicated. The violations are technical rather than substantive, and are not so egregious as to warrant dismissal. See, e.g., N. C. Farm Bureau Mut. Ins. Co. v. Allen, 146 N.C. App. 539, 542, 553 S.E.2d 420, 422 (2001) (electing to review the appellant\u2019s case on its merits, although appellant failed to reference his assignments of error on appeal); Fletcher v. Dana Corporation, 119 N.C. App. 491, 493-94, 459 S.E.2d 31, 33 (1995) (granting review pursuant to Rule 2, although appellants violated appellate rules by \u201cmerely cit[ing] to portions of the Commission\u2019s Opinion without setting forth a basis for error\u201d); Symons Corp. v. Insurance Co. of North America, 94 N.C. App. 541, 543, 380 S.E.2d 550, 552 (1989) (stating that, \u201c[although defendant in this case did not technically follow the rules by failing to list specific page numbers where exceptions could be found in the record and did not set out these exceptions in the brief, we do not find these omissions so egregious as to invoke dismissal\u201d). Plaintiff has presented a compelling appeal warranting reversal, the merits of which were orally argued before this Court. Dismissal of such appeal for technical appellate rules violations would amount to a manifest injustice.\nIn sum, the Industrial Commission failed to make adequate findings to support its conclusion that the NCDOT\u2019s actions were reasonable, erred by relying on an improperly conducted assessment of the financial cost\u2019of installing median barriers, and failed to make necessary findings of fact. Accordingly, the opinion and award of the Industrial Commission must be reversed and this matter remanded for additional findings of fact and further proceedings not inconsistent with this opinion.\nReversed.\nJudge WYNN concurs.\nJudge TYSON dissents.",
        "type": "majority",
        "author": "LEVINSON, Judge."
      },
      {
        "text": "TYSON, Judge\ndissenting.\nI respectfully dissent from the majority\u2019s holding to reverse the Industrial Commission\u2019s opinion and award. Plaintiff failed to comply with the appellate rules of this Court. I vote to dismiss this appeal or, in the alternative, to affirm the Commission on the merits of the appeal.\nI. Standard of Review\nThe North Carolina Department of Transportation (\u201cNCDOT\u201d) is subject to a suit to recover damages for death caused by its negligence only as is provided in the Tort Claims Act. Davis v. Highway Commission, 271 N.C. 405, 156 S.E.2d 685 (1967). That Act states in part, \u201c[t]he Industrial Commission shall determine whether or not each individual claim arose as a result of the negligence of any officer, employee . . . 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.\u201d N.C. Gen. Stat. \u00a7 143-291(a) (2003).\nOur Court has previously ruled on the standard of review for tort claims from the Commission. \u201cUnder the Tort Claims Act, \u2018when considering an appeal from the Commission, our Court is limited to two questions: (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.\u2019 \u201d Smith v. N.C. Dep\u2019t of Transp., 156 N.C. App. 92, 97, 576 S.E.2d 345, 349 (2003) (quoting Fennell v. N.C. Dep\u2019t of Crime Control & Pub. Safety, 145 N.C. App. 584, 589, 551 S.E.2d 486, 490 (2001), cert. denied, 355 N.C. 285, 560 S.E.2d 800 (2002)); see N.C. Gen. Stat. \u00a7 143-293 (2003).\nII. Preserving Issues for Appellate Review\nA. Assignments of Error\n\u201c[T]he scope of review on appeal is confined to a consideration of those assignments of error set out in the record on appeal . . . .\u201d N.C.R. App. P. 10(a) (2003). The record reveals plaintiff\u2019s unnumbered assignments of error as follows:\nThe North Carolina Industrial Commission erred by disallowing the deposition testimony of Dr. Larry R. Goode (the former Secretary of Transportation and a defendant in the Viar actions); Norris Tolson (the current Secretary of Transportation); James M. Lynch (Branch Manager of the Traffic Engineering and Safety Systems Branch of the Department of Transportation and an author of the State\u2019s Across Median Accident Study) taken in Hallum v. North Carolina Department of Transportation (TA 15455) and Jones v. North Carolina Department of Transportation (TA 15601). These cases with nearly identical fact circumstances and identical legal issues pertaining to the willful refusal of the respondents to install median barriers in deadly stretches of North Carolina interstates after an acute need for the barriers had been identified by the Department of Transportation\u2019s own investigation.\nRecord, p.-[sic]\nThe North Carolina Industrial Commission, in its majority opinion, committed reversible error by not finding the named respondents negligent in the deaths of the minor petitioners for not installing median barriers on a deadly stretch of Highway 1-85 after the Department of Transportation found an acute need for the barriers approximately 8 years earlier.\nRecord, p.-[sic]\nPlaintiff failed to cite any pages in the record under either of his assignments of error.\nOn appeal, plaintiff argues the Commission\u2019s opinion and award should be reversed. We must first consider whether the Commission\u2019s findings of fact are supported by competent evidence. Smith, 156 N.C. App. at 97, 576 S.E.2d at 349. Our review is further limited by the North Carolina Rules of Appellate Procedure, which require the appellant to assign error as follows:\nquestions that the evidence is legally or factually insufficient to support a particular issue or finding, and challenges directed against any conclusions of law of the trial court based upon such issues or findings, may be combined under a single assignment of error raising both contentions if the record references and the argument under the point sufficiently direct the court\u2019s attention to the nature of the question made regarding each such issue or finding or legal conclusion based thereon.\nN.C.R. App. P. 10(c)(3) (2003) (emphasis supplied).\nOur Supreme Court has ruled:\n[w]here no exception is taken to a finding of fact by the trial court, the finding is presumed to be supported by competent evidence and is binding on appeal. Furthermore, the scope of review on appeal is limited to those issues presented by assignment of error in the record on appeal. The Court of Appeals erred in reversing the trial court on an issue not properly presented for appeal by exception or assignment of error.\nKoufman v. Koufman, 330 N.C. 93, 97-98, 408 S.E.2d 729, 731 (1991) (internal citations omitted).\nSince plaintiff failed to assert error to any of the Commission\u2019s findings of fact, the Commission\u2019s findings are binding on our Court and we must conclude they are supported by competent evidence. Id. Plaintiff also failed to reference the record in violation of N.C.R. App. P. 10(c)(3) (2003). This Court should not address plaintiff\u2019s assignments of error, and this appeal should be dismissed. See Shook v. County of Buncombe, 125 N.C. App. 284, 286, 480 S.E.2d 706, 707 (1997) (\u201c[T]he rules are not merely ritualistic formalisms, but are essential to our ability to ascertain the merits of an appeal. Furthermore, the appellate rules promote fairness by alerting both the Court and appellee to the specific errors appellant ascribes to the court below.\u201d).\nB. Plaintiff\u2019s Arguments on Appeal\nIn order to reach the merits of plaintiff\u2019s argument and reverse the Commission\u2019s opinion and award, this Court is limited to the issues properly presented for appeal. N.C.R. App. P. 10(a) (2003); see Koufman, 330 N.C. at 97-98, 408 S.E.2d at 731. In addition to the rule violations in plaintiff\u2019s assignments of error discussed above, his brief also fails to adhere to the North Carolina Rules of Appellate Procedure.\nPlaintiff\u2019s brief sets forth only one \u201cquestion presented\u201d to this Court: whether the NCDOT\u2019s failure to install median barriers was a proximate cause of the death of the Viar sisters. In making his arguments, plaintiff cites \u201cAssignment of Error No. 1\u201d and solely cites to the pages in the record containing a dissenting opinion from the Commission\u2019s opinion and award. Citing only to the dissenting opinion violates the appellate rules and is insufficient to identify \u201cthe pages at which [the assignments of error] appear in the printed record on appeal.\u201d N.C.R. App. P. 28(b)(6) (2003).\nPlaintiff\u2019s question presented and arguments on that issue do not correspond to the first assignment of error. Plaintiff\u2019s brief does not address the Commission\u2019s failure to admit certain deposition testimony from other cases as set forth as error in the first assignment of error. Although plaintiff cites \u201cAssignment of Error No. 1\u201d in his brief, none of his arguments relate in any manner to the substance of plaintiff\u2019s first assignment of error. Appellate \u201c[r]eview is limited to questions so presented in the several briefs. Questions raised by assignments of error in appeals from trial tribunals but not then presented and discussed in a party\u2019s brief, are deemed abandoned.\u201d N.C.R. App. P. 28(a) (2003). Plaintiff has abandoned his first assignment of error concerning the deposition testimony from other cases.\nRegarding his second assignment of error, plaintiff does not cite or refer to \u201cAssignment of Error No. 2\u201d in his brief. \u201cA party may not present for the first time in an appellate brief a question raising issues of law not set out in the assignments of error contained in the record on appeal.\u201d Branch Banking and Trust Co. v. Staples, 120 N.C. App. 227, 231, 461 S.E.2d 921, 925, disc. rev. denied, 342 N.C. 190, 463 S.E.2d 233 (1995); see Shook, 125 N.C. App. at 286, 480 S.E.2d at 707 (appellant\u2019s failure to properly assign error on appeal is fatal and his appeal is dismissed). Plaintiff failed to cite to his second assignment of error and failed to specify or argue any error in any conclusions of law within the Commission\u2019s opinion and award. Not only did plaintiff improperly make assignments of error, but he also failed to properly argue the portions assigned as error. This appeal is not properly before us and should be dismissed.\nIII. Negligence\nSince the majority\u2019s opinion reaches the merits of this appeal, I also dissent from the result reached in that opinion.\nA. Standard of Review\nOur Supreme Court has explained the role of appellate courts in cases appealed from the North Carolina Industrial Commission. The Court ruled, \u201con appeal, an appellate court does not have the right to weigh the evidence and decide the issue on the basis of its weight. The court\u2019s duty goes no further than to determine whether the record contains any evidence tending to support the finding.\u201d Deese v. Champion Int\u2019l Corp., 352 N.C. 109, 115, 530 S.E.2d 549, 552 (2000) (citation omitted). Plaintiff did not take exception to any findings of fact, thus limiting our review solely to a question of \u201cwhether the Commission\u2019s findings of fact justify its conclusions of law and decision.\u201d Fennell, 145 N.C. App. at 589, 551 S.E.2d at 490 (citation omitted).\nAfter concluding that \u201c[t]here was no negligence on the part of any named Officer, voluntary servant or agent of the State . . . which proximately caused plaintiffs[\u2019] injuries,\u201d the Commission applied N.C. Gen. Stat. \u00a7 143-291 (2003).\nUnder [N.C. Gen. Stat. \u00a7 143-291], \u201cnegligence is determined by the same rules as those applicable to private parties.\u201d 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\nWoolard v. N.C. Dept. of Transportation, 93 N.C. App. 214, 217, 377 S.E.2d 267, 269, cert. denied, 325 N.C. 230, 381 S.E.2d 782 (1989) (quoting Bolkhir v. N.C. State Univ., 321 N.C. 706, 709, 365 S.E.2d 898, 900 (1988)). I agree with the Commission\u2019s conclusion that plaintiff failed to prove the NCDOT breached its duty or that any purported breach of duty by the NCDOT proximately caused the deaths of the Viar sisters.\nB. Findings of Fact\nThe majority\u2019s opinion concludes the Commission failed to make adequate findings of fact. Specifically, the majority\u2019s opinion suggests several \u201cfindings\u201d the Commission should have included to \u201cprovide some appropriate context\u201d such as, the NCDOT\u2019s annual budget, funding availability, and the degree of harm caused by median accidents. I disagree. As further explained below, I would conclude the Commission\u2019s findings adequately support its conclusion that the NCDOT did not negligently cause the death of the Viar sisters.\nAdditionally, under the Tort Claims Act,\nthe burden of proof as to this [negligence] issue was on the plaintiff. Evidence is usually not required in order to establish and justify a finding that a party has failed to prove that which he affirmatively asserts. It usually occurs and is based on the absence or lack of evidence.\nBailey v. Dept. of Mental Sealth, 2 N.C. App. 645, 651, 163 S.E.2d 652, 656 (1968). Here, the Commission concluded that plaintiff failed to prove negligence by the NCDOT. Following Bailey, the majority\u2019s opinion\u2019s criticism of the lack of findings resulted from plaintiff\u2019s failure to meet his burden to prove negligence.\nC. Public Duty Doctrine\nIn its answer to plaintiff\u2019s affidavit and claim for damages, the NCDOT asserted the public duty doctrine as a defense. The issue was also raised and argued during oral arguments before this Court. Our Supreme Court has held that the public duty doctrine applies to causes of action under the Tort Claims Act:\nThe general common law rule provides that governmental entities, when exercising their statutory powers, act for the benefit of the general public and therefore have no duty to protect specific individuals. Because the governmental entity owes no particular duty to any individual claimant, it cannot be held liable for negligence for a failure to carry out its statutory duties.Absent a duty, there can be no liability.\nStone v. N.C. Dept. of Labor, 347 N.C. 473, 482, 495 S.E.2d 711, 716, cert. denied, 525 U.S. 1016, 142 L. Ed. 2d 449 (1998) (internal citations omitted) (emphasis supplied).\nThe NCDOT possesses the statutory authority to plan, design, locate, construct, and maintain the system of public highways in this State. N.C. Gen. Stat. \u00a7 143B-346 (2003); Equipment Co. v. Hertz Corp., 256 N.C. 277, 123 S.E.2d 802 (1962).\nThe [NCDOT] is vested with broad discretion in carrying out its duties and responsibilities with respect to the design and construction of our public highways. The policies of the Board of Transportation and the Department of Transportation and the myriad discretionary decisions made by them as to design and construction are not reviewable by the judiciary \u201cunless [their] action is so clearly unreasonable as to amount to oppressive and manifest abuse.\u201d\nHochheiser v. N.C. Dept. of Transportation, 82 N.C. App. 712, 717-18, 348 S.E.2d 140, 143 (1986), aff\u2019d, 321 N.C. 117, 361 S.E.2d 562 (1987) (quoting Guyton v. North Carolina Board of Transp., 30 N.C. App. 87, 90, 226 S.E.2d 175, 177 (1976)).\nIn deciding whether to install median barriers along certain portions of our state highway and interstate system, the NCDOT must use its discretion, is limited by budget considerations, and must economically coordinate construction projects. Here, the Commission reviewed the NCDOT\u2019s decision and the actions taken by the NCDOT to make the portion of Interstate 85 where the accident occurred safer. The Commission concluded the NCDOT\u2019s actions were reasonable. The Commission\u2019s findings of fact, unchallenged by plaintiff, support this conclusion. Specifically, the Commission found as fact:\n16. The task force preparing the [Interstate Across Median Accident Survey] recommended corrective action be delayed [on this stretch of 1-85 where this accident occurred] until other projects were constructed unless additional accidents required earlier action because this project was within the physical limits of construction of other projects and because of financial restrictions. Therefore, construction was scheduled late in the programmed seven-year (7) period.\n17. In September 1993, it was anticipated that the widening of 1-85, including the area in question, would occur within seven (7) years or by 1999.\n18. The North Carolina Department of Transportation could not fund and build all twenty-four (24) sites immediately. Decisions were made to install a median barrier at this site and others at the time when future work was done rather than to install something and have to remove it with the expansion.\n20. Based upon the 1989 and 1996 versions of the American Association of State Highway and Transportation Roadside Design Guide, the 30[-foot] median fell into the category in which median barriers for new construction were optional regardless of traffic volume. The guide only requires the need for a barrier be evaluated using the best engineering judgment, (emphasis supplied).\n21. Ellis King [plaintiffs expert witness] did not testify the highway failed to meet standards at the time of construction and admitted that the 30-foot median fell into the optional area of the chart of the Roadway Design Guide upon which he relied in this testimony. Dr. King did not know if the funds were available or what other projects may have been competing for funding. Dr. King indicated a guardrail would not have prevented the initial impact on the other southbound vehicle and that a barrier would have put the Viar vehicle in the path of another southbound vehicle.\n27. Other projects may be more deserving of immediate attention than the stretch of 1-85 in question.\n31. Funding for the barriers had been allocated in the Transportation Improvement program which covers seven (7) years.\n34. Expected funding for this widening project did not become available.\n50. Requests for improvements are referred to the Policy and Programming Group of the North Carolina Department of Transportation under the transportation improvement program. This program has been in place since the 1970s.\n51. It is normal that many more requests for improvements are made than there is money to underwrite the requests.\nThe Commission further found that the section of Interstate 85 where the accident occurred was constructed in the 1950s and that there are no federal guidelines or state regulations requiring periodical review to determine if the median barrier will be required. While no legal authority or engineering guidelines required bringing an older facility up to a new standard or to modify it due to traffic increases, the NCDOT sought to make this portion of Interstate 85 safer by reducing the speed limit from sixty-five miles per hour to fifty-five miles per hour prior to the accident.\nThe NCDOT did not owe a specific duty to plaintiff and cannot be held liable under the public duty doctrine where the Commission concluded it acted reasonably and within its statutory and discretionary authority.\nD. Proximate Cause\nIn addition to failing to prove the NCDOT owed a specific duty or that it breached any duty, plaintiff has not shown that the NCDOT\u2019s failure to erect median barriers proximately caused the death of the Viar sisters.\nProximate cause is a cause which in natural and continuous sequence, unbroken by any new and independent cause, produced the plaintiffs injuries, and without which the injuries would not have occurred, and one from which a person of ordinary prudence could have reasonably foreseen that such a result, or consequences of a generally injurious nature, was probable under all the facts as they existed.\nWoolard, 93 N.C. App. at 218, 377 S.E.2d at 270 (quoting Hairston v. Alexander Tank & Equipment Co., 310 N.C. 227, 233, 311 S.E.2d 559, 565 (1984)). The evidence shows the accident occurred at night, around 9:00 p.m., and during \u201cextremely heavy rain.\u201d The Viar vehicle was traveling south on Interstate 85, when it crossed the center median and collided with a large truck traveling in the northbound lane. Plaintiff offered no evidence tending to show that the Viar sisters could or would have survived the accident had median barriers been in place. Dr. Ellis King, plaintiffs own witness, was qualified as an expert in traffic safety and testified that: (1) guardrails do not always stop vehicles; (2) a barrier could have put the Viar vehicle back into the path of another southbound vehicle; and (3) interstates without median barriers are still safer than two-lane roads.\nCompetent evidence presented before the Commission supports its findings of fact and conclusions of law. Presuming plaintiff had successfully shown that the NCDOT owed plaintiff an individualized duty and breached that duty, the Commission correctly concluded that the NCDOT\u2019s failure to erect median barriers was not a proximate cause of the death of the Viar sisters.\nIV. Conclusion\nPlaintiff failed to except to any of the Commission\u2019s findings of fact or conclusions of law. These findings are binding upon this Court on appeal. Plaintiff also failed to properly assign error or argue its assignments of error contained in the record in violation of the North Carolina Rules of Appellate Procedure. \u201cOur rules are mandatory, and in fairness to all who come before this Court, they must be enforced uniformly.\u201d Shook, 125 N.C. App. at 287, 480 S.E.2d at 708. Our Courts have long recognized a strict requirement that appeals should be dismissed for \u201cfailure to comply with the rules.\u201d Pruitt v. Wood, 199 N.C. 788, 792, 156 S.E. 126, 128 (1930); see In re Lancaster, 290 N.C. 410, 424, 226 S.E.2d 371, 380 (1976) (\u201cOrdinarily our legal system operates in an adversary mode. One incident of this mode is that only those who properly appeal from the judgment of the trial divisions can get relief in the appellate divisions. This can be a strict requirement.\u201d). I dissent from the majority\u2019s opinion and vote to dismiss this appeal.\nDespite plaintiff\u2019s multiple and egregious rule violations, the majority\u2019s opinion ignores all violations and reaches the merits of this appeal. The deaths of these two young sisters and the serious injuries to the surviving sister are tragic and engender great sympathy for the family. However, considering our standard of review and the Commission\u2019s findings of fact that are binding upon this Court, I vote to affirm the Commission\u2019s opinion and award on the merits of the appeal. I respectfully dissent.",
        "type": "dissent",
        "author": "TYSON, Judge"
      }
    ],
    "attorneys": [
      "DeVore, Acton, & Stafford, P.A., by Fred W. DeVore, III, for plaintiff-appellants.",
      "Attorney General Roy Cooper, by Special Deputy Attorney General William H. Borden, for defendant-appellee."
    ],
    "corrections": "",
    "head_matter": "CLAUDE M. VIAR, JR., Co-administrator of the Estate of MEGAN RAE VIAR, Deceased, and Co-administrator of the Estate of MACEY LAUREN VIAR, Deceased, Plaintiff v. N.C. DEPARTMENT OF TRANSPORTATION, Defendant\nNo. COA03-25\n(Filed 3 February 2004)\nTort Claims Act\u2014 negligence \u2014 motor vehicle accident \u2014 failure to install median barrier on highway\nThe Industrial Commission erred in a case brought under the Tort Claims Act by concluding that plaintiff failed to show that the North Carolina Department of Transportation (NCDOT) was negligent when it did not install a median barrier on the section of 1-85 highway where the pertinent motor vehicle accident took place, because: (1) the Industrial Commission\u2019s findings of fact were inadequate to support its conclusion that defendant\u2019s actions in delaying construction of the proposed median barrier were reasonable with regard to maintaining safe transportation; (2) the Industrial Commission misapplied the law in its consideration of the monetary cost of installing a median barrier when it failed to reflect consideration of cost in the context of the risk of harm and the likely severity of harm; (3) the Industrial Commission\u2019s findings of fact failed to address plaintiff\u2019s central contention alleging negligence in NCDOT\u2019s delay after it made its initial discretionary decision about when, where, and on what prioritization schedule to install the barriers; (4) the Industrial Commission\u2019s findings of fact failed to address the risk of injury as related to the presence or absence of median barriers; (5) the public duty doctrine has never been applied to shield NCDOT from acts of negligence, and the construction and maintenance of the state highway system is not an exercise of the NCDOT\u2019s discretionary authority conferred upon it by statute; and (6) dismissal of this appeal for technical appellate rule violations would amount to manifest injustice.\nJudge Tyson dissenting.\nAppeal by plaintiffs from opinion and award entered 20 August 2002 by the North Carolina Industrial Commission. Heard in the Court of Appeals 7 October 2003.\nDeVore, Acton, & Stafford, P.A., by Fred W. DeVore, III, for plaintiff-appellants.\nAttorney General Roy Cooper, by Special Deputy Attorney General William H. Borden, for defendant-appellee."
  },
  "file_name": "0362-01",
  "first_page_order": 390,
  "last_page_order": 413
}