{
  "id": 8555202,
  "name": "MRS. DOVA MACKEY v. NORTH CAROLINA STATE HIGHWAY COMMISSION",
  "name_abbreviation": "Mackey v. North Carolina State Highway Commission",
  "decision_date": "1969-05-28",
  "docket_number": "No. 6930IC29",
  "first_page": "630",
  "last_page": "634",
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    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
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      "cite": "1 N.C. App. 373",
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  "last_updated": "2023-07-14T18:50:38.610889+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Campbell and MoRRis, JJ., concur."
    ],
    "parties": [
      "MRS. DOVA MACKEY v. NORTH CAROLINA STATE HIGHWAY COMMISSION"
    ],
    "opinions": [
      {
        "text": "BeoCK, J.\nDefendant assigns as error, and in its brief strenuously argues, that there was no evidence of record to support the determination of the Full Commission that the named employee of the defendant committed a negligent act so as to allow plaintiff to recover under the State Tort Claims Act.\n\u201cThe findings of fact by the Industrial Commission are conclusive if there is any competent evidence to support them. G.S. 143-293.\u201d Mitchell v. Board of Education, 1 N.C. App. 373, 161 S.E. 2d 645.\nWe hold that the facts found by the Full Commission are supported by competent evidence and that they are sufficient to support the action of the Full Commission in concluding that there was a negligent act on the part of defendant\u2019s employee Elmer Head and that such negligent act was the proximate cause of the injury and damages sustained by plaintiff.\nUnder the State Tort Claims Act recovery is permitted for injuries resulting from a negligent act, but not those resulting from a negligent omission on the part of State employees. G.S. 143-291; Flynn v. Highway Commission, 244 N.C. 617, 94 S.E. 2d 571. In Flynn the claim denied was based upon the alleged negligent failure of named employees of the State to repair a hole or break in the surface of a State road caused by public travel over it. \u201cIn order to authorize the payment of compensation, the Industrial Commission\u2019s findings must include (1) a negligent act, (2) on the part of a State employee, (3) while acting in the scope of his employment, etc. The first requirement is that the claimant show a negligent act. Is a failure to repair a hole in the highway caused by ordinary public travel a negligent act? The requirement of the statute is not met by showing negligence, for negligence may consist of an act or an omission. Failure to act is not an act.\u201d Flynn v. Highway Commission, supra.\nWe think the case at bar is clearly distinguishable on its facts from Flynn. The Full Commission found upon competent evidence that Elmer Head left at least eighteen holes open when he removed the posts therefrom and that such negligent act proximately caused plaintiff\u2019s injury and resulting damages. The removal of the posts created holes on the shoulder of the road. There was no negligent omission involved as the creation of a hole is an act, not an omission. One who undertakes to do something and does it negligently commits a negligent act, not a negligent omission.\nIn this case we are not concerned with a failure by defendant to maintain the shoulders of the highway in a safe condition for pedestrian travel; we are concerned here with the act of an agent of the Commission in negligently creating a trap, or pitfall, upon a shoulder of the highway which is apparently safe for pedestrian travel.\nThe opinion and award of the Full Commission is\nAffirmed.\nCampbell and MoRRis, JJ., concur.",
        "type": "majority",
        "author": "BeoCK, J."
      }
    ],
    "attorneys": [
      "Robert Morgan, Attorney General, by Harrison Lewis, Deputy Attorney General, for Highioay Commission, defendant appellant.",
      "Bennett, Kelly & Long, by E. Glenn Kelly, for plaintiff appellee."
    ],
    "corrections": "",
    "head_matter": "MRS. DOVA MACKEY v. NORTH CAROLINA STATE HIGHWAY COMMISSION\nNo. 6930IC29\n(Filed 28 May 1969)\n1. Master and Servant \u00a7 96\u2014 Industrial Commission \u2014 findings of fact\nThe findings of fact by the Industrial Commission are conclusive if there is any competent evidence to support them. G.S. 143-293.\n2. State \u00a7 8; Highways \u00a7 9\u2014 tort claims action \u2014 highway employee \u2014 negligent act v. omission\nWhere State Highway employee removed large posts from the shoulder of a highway and left unfilled the holes created by the removal, recovery may be had under the Tort Claims Act for injuries resulting to a plaintiff who stepped in one of the holes, since the creation of the hole is a negligent act and not a negligent omission.\nS. State \u00a7 8\u2014 Tort Claims Act \u2014 recovery for negligent act\nUnder the State Tort Claims Act recovery is permitted for injuries resulting from a negligent act, hut not those resulting from a negligent omission on the part of State employees. 6.S. 143-291.\n4. Negligence \u00a7 1\u2014 negligent act defined\nOne who undertakes to do something and does it negligently commits a negligent act, not a negligent omission.\nAppeal by defendant Highway Commission from an opinion and award of the North Carolina Industrial Commission filed 11 September 1968.\nThis is a proceeding under the State Tort Claims Act first heard by Commissioner William F. Marshall, Jr. An order denying plaintiff\u2019s claim was entered on 18 April 1968. Plaintiff appealed to the Full Commission, which reversed the order of Commissioner Marshall and made an award to the plaintiff.\nPlaintiff Dova Mackey filed an affidavit in which she alleged that her claim was against the North Carolina State Highway Commission for personal injuries resulting from the negligence of Elmer Head. She further alleged that her injury was caused solely and proximately by the negligent conduct of the named employee in removing large posts which had been placed along the shoulder of the State highway, leaving unfilled holes, one of which she stepped into and was injured.\nDefendant answered, denying the plaintiff\u2019s material allegations, and, for a further answer and defense to the cause of action, alleged that plaintiff was contributorily negligent in failing to exercise due care for her own safety as she walked along the highway \u201cin that she failed and neglected to observe and heed the conditions then and there existing as it was her duty to do so.\u201d\nThe Full Commission, among other things, made findings of fact that:\n\u201c1. Sometime in 1961 or prior thereto Elmer Head, who was employed as a foreman by defendant caused and supervised the removal of some posts from the south side of the 'Old Clyde Highway\u2019 between Canton and Clyde. The removal of the posts created holes on the shoulder of the road. Such holes were approximately 10 inches in diameter and over two feet in depth. Some of the holes were filled with dirt under the supervision of Mr. Head. However, at least 18 holes were left open, thus creating a dangerous condition on the shoulder of the road. Weeds and grass grew around and across the holes, thus creating hidden pitfalls for anyone who should step onto the shoulder of the road at the exact place where one of the holes had been left open.\n\u201c2. On 16 September 1963 at approximately 2:30 P.M. the plaintiff walked along the south side of the \u2018Old Clyde Highway' as she had done on many previous occasions. She walked upon the paved portion of the highway facing oncoming traffic and would step upon the south shoulder of the highway in order to avoid vehicles on the highway. While so walking upon the paved portion of the highway plaintiff stepped onto and walked upon the south shoulder of the highway upon the approach of several vehicles. Plaintiff stepped to a place approximately 44 inches from the paved surface. Despite the fact that plaintiff was looking where she was stepping, her left foot went into one of the holes which had been created by the actions of Mr. Head as described in Finding of Fact No. 1. Such hole was 44 inches off the paved surface of the highway and was eight to 10 inches in diameter and approximately two feet in depth.\n\u201cA search by the son of plaintiff thereafter revealed 18 similar type holes on the shoulder of the highway at the same place that Mr. Head had supervised the removal of posts.\n\u201c3. Mr. Head, the employee of defendant, by causing holes to be created on the shoulder of the highway at a place where a pedestrian had a right to be did other than a reasonably prudent person would have done under the same or similar circumstances. This constituted a negligent act upon his part while acting within the scope and course of his employment as a foreman for defendant and such negligence was the proximate cause of the accident giving rise hereto and the damages sustained by plaintiff.\n\u201c4. The plaintiff acted the same as a reasonably prudent person would have done under the same or similar circumstances and there was no contributory negligence upon her part.\u201d\nFrom these facts the Full Commission concluded that there was a negligent act on the part of the named employee of defendant within the scope and course of his employment and such negligence was the proximate cause of the damages sustained by plaintiff; that there was no contributory negligence upon the part of plaintiff; and that plaintiff was entitled to an award of $3,500.00.\nThe defendant Highway Commission duly excepted to these findings and conclusions and appealed to this Court.\nRobert Morgan, Attorney General, by Harrison Lewis, Deputy Attorney General, for Highioay Commission, defendant appellant.\nBennett, Kelly & Long, by E. Glenn Kelly, for plaintiff appellee."
  },
  "file_name": "0630-01",
  "first_page_order": 650,
  "last_page_order": 654
}