Johnson v. Guilford Cty. Bd. of Educ.

IN THE COURT OF APPEALS OF NORTH CAROLINA

2022-NCCOA-553

No. COA21-630

Filed 16 August 2022

North Carolina Industrial Commission, I.C. Nos. TA-26216 & TA-27059

Estate of KIE LANDON JOHNSON, by and through WILLIAM JOHNSON and

MONA ELLISON, Administrators of the Estate, Plaintiffs,

v.

GUILFORD COUNTY BOARD OF EDUCATION, Defendant.

OLIVIA BROWN, by and through her GUARDIAN AD LITEM, EMILY HOEPFL,

and EMILY HOEPFL, Individually, Plaintiffs,

v.

GUILFORD COUNTY BOARD OF EDUCATION, Defendant.

Appeal by Plaintiffs from decision and order entered 10 June 2021 by the Full

Commission of the North Carolina Industrial Commission. Heard in the Court of

Appeals 10 May 2022.

Frazier, Hill & Fury, R.L.L.P., by Torin L. Fury, and R. Steve Bowden &

Associate, P.C., by Edward P. Yount, for Plaintiffs-Appellants.

Attorney General Joshua H. Stein, by Special Deputy Attorney General Carl

Newman, for Defendant-Appellee.

INMAN, Judge.

JOHNSON V. GUILFORD CTY. BD. OF EDUC.

2022-NCCOA-553

Opinion of the Court

¶1 This appeal arises out of a head-on collision between a car and a school bus on

a rural road, which killed one passenger and injured others. Plaintiffs contend the

Commission erred in concluding: (1) the bus driver was not negligent by application

of the doctrine of sudden emergency; and (2) Plaintiffs failed to establish the bus

driver had the last clear chance to avoid the collision. After careful review, we affirm

the decision and order of the Commission.

I. FACTUAL & PROCEDURAL HISTORY

¶2 The record below tends to show the following:

¶3 On 26 August 2015, at approximately 4:30 p.m., Lakeisha Miller (“Ms. Miller”)

was driving a Guilford County school bus north on Knox Road, a two-lane road

divided by a double yellow, no-passing center line in a rural part of Guilford County,

when Jacob Larkin (“Mr. Larkin”), an 18-year-old high school student, drove in the

wrong direction in Ms. Miller’s lane and crashed his Toyota Camry head-on into the

bus. The collision killed one of the car’s passengers, Kie Johnson, and injured Mr.

Larkin, the car’s remaining passengers, including Olivia Brown, and Ms. Miller. At

the time of the collision, Ms. Miller had one minor passenger on the bus. Mr. Larkin

was impaired from a mixture of marijuana and Xanax, “was driving erratically,” and

had been “reckless” before the crash.

¶4 When Ms. Miller first saw Mr. Larkin’s vehicle traveling toward her in the

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wrong lane, she immediately took her foot off the gas pedal and slowed down to allow

him to return to the correct lane. She sounded the bus’s horn twice to alert the driver.

As the car approached, Ms. Miller noticed that the driver was slumped over in the

driver’s seat and appeared to be reaching down, looking at the floor of his car. The

shoulder of the road to the bus’s right was wide and grassy but sloped down into a

ditch. Ms. Miller considered turning right to avoid a collision but was worried the

bus would overturn in the uneven ditch or crash into the fence running parallel to the

road on the right. She could see there was no traffic behind Mr. Larkin, so “at the

last minute,” she maneuvered the bus left––toward the oncoming lane of traffic that

the approaching car should have been in––to avoid the collision.

¶5 Ms. Miller had driven buses for Guilford County Schools for approximately ten

years. She had obtained her commercial driver’s license in 2005, completed the

State’s requisite training courses for school bus traffic and safety, and renewed her

certification every few years. North Carolina school bus drivers are trained that

when an approaching driver is in the wrong lane, that driver’s natural response will

be to return to his or her correct lane if the driver realizes what has happened and it

may be best to move right. The instruction “Steering to Avoid A Crash” further

provides: “Top heavy vehicles such as school buses may turn over . . . . If something

is blocking your path, the best direction to steer will depend on the situation . . . . If

the shoulder is clear, going right may be best.” Knox Road was on Ms. Miller’s regular

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route for two to three years, and she had driven the road at least one hundred times,

if not more.

¶6 On 11 April and 23 July 2018, Plaintiffs, administrators of Kie Johnson’s estate

and guardian for Olivia Brown, respectively, filed claims against the Guilford County

Board of Education (the “Board”) for $1,000,000 in damages under the Tort Claims

Act with the North Carolina Industrial Commission. Plaintiffs alleged: (1) Ms.

Miller’s maneuver of the school bus was not sufficient to avoid colliding with Mr.

Larkin’s vehicle; and (2) Ms. Miller was negligent when she failed to recognize the

danger of Mr. Larkin’s oncoming car, honk her horn to warn Mr. Larkin, maintain

proper control of the school bus, maintain a proper lookout, and crossed left of center

while operating the Board’s bus. The Board denied all allegations of negligence and

raised defenses of (1) contributory negligence, (2) intervening, superseding, and

criminal acts of Mr. Larkin, (3) intervening and superseding negligence and acts of

the surviving car passengers, and third parties, and (4) the sudden emergency

doctrine.

¶7 The matter was bifurcated on the issues of liability and damages, and these

consolidated claims came on for trial before a Deputy Commissioner on 17 June 2019.

The Deputy Commissioner denied Plaintiffs’ claims and Plaintiffs appealed to the

Full Commission (the “Commission”).

¶8 Reviewing the evidence, the Commission concluded Ms. Miller’s evasive

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actions were proper and lawful because the bus was not left of the center yellow lines

at the point of impact and, even if it was, Mr. Larkin’s oncoming car was an

obstruction that permitted Ms. Miller to deviate from the right lane of traffic. The

Commission concluded Ms. Miller’s actions were further insulated from liability

under the doctrine of sudden emergency, and she “did not breach a duty of care owed

to Plaintiffs.” Even if Ms. Miller was negligent, the Commission alternatively

concluded Plaintiffs were barred from recovery because they were contributorily

negligent for “ignor[ing] unreasonable risks or dangers which would have been

apparent to a prudent person exercising ordinary care for his own safety” and failing

to leave Mr. Larkin’s car when they had the opportunity prior to the collision. Finally,

the Commission concluded that the Board was not liable under the doctrine of last

clear chance because Plaintiffs “failed to prove that Ms. Miller was negligent in the

operation of her school bus” and “that Ms. Miller, by the exercise of reasonable care,

‘failed or refused to use every reasonable means’ at her command to avoid the

impending injury.” Plaintiffs appeal.

II. ANALYSIS

A. Standard of Review

¶9 We review the Commission’s decision under the Tort Claims Act “‘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

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competent evidence to support them.’” Simmons v. Columbus Cty. Bd. of Educ., 171

N.C. App. 725, 727-28, 615 S.E.2d 69, 72 (2005) (quoting N.C. Gen. Stat. § 143-293

(2003)). “As long as there is competent evidence in support of the Commission’s

decision, it does not matter that there is evidence supporting a contrary finding.” Id.

at 728, 615 S.E.2d at 72 (citation omitted). “Under the Tort Claims Act, when

considering an appeal from the Commission, our Court is limited to two questions:

(1) whether competent evidence exists to support the Commission’s findings of fact,

and (2) whether the Commission’s findings of fact justify its conclusions of law and

decision.” Fennell v. N.C. Dep’t of Crime Control & Pub. Safety, 145 N.C. App. 584,

589, 551 S.E.2d 486, 490 (2001) (quotation marks and citation omitted).

¶ 10 Where the Commission’s factual findings are unchallenged, they are binding

on appeal. Medlin v. Weaver Cooke Constr., LLC, 367 N.C. 414, 423, 760 S.E.2d 732,

738 (2014). “In addition, findings of fact to which error is assigned but which are not

argued in the brief are deemed abandoned.” Strezinski v. City of Greensboro, 187 N.C.

App. 703, 706, 654 S.E.2d 263, 265 (2007) (citation omitted).

B. The Doctrine of Sudden Emergency

¶ 11 Plaintiffs assert two challenges to the Commission’s application of the sudden

emergency doctrine: (1) Ms. Miller contributed to the sudden emergency by failing to

exercise due care when she accelerated towards the collision and swerved left, in

violation of her training; and (2) the oncoming collision did not require Ms. Miller to

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act instantly by swerving. Neither argument is persuasive.

¶ 12 Plaintiffs have not challenged any of the Commission’s findings of fact, so they

are binding on this Court. See Medlin, 367 N.C. at 423, 760 S.E.2d at 738. Further,

though Plaintiffs’ proposed issues on appeal included challenges to findings 38 and

39, their brief does not challenge whether either finding is supported by competent

evidence. Therefore, they have abandoned any challenge to these findings. See

Strezinski, 187 N.C. App. at 706, 654 S.E.2d at 265.

¶ 13 We consider, based on the binding findings of fact and applicable law, whether

the Commission erred in applying the doctrine of sudden emergency. See Simmons,

171 N.C. App. at 727, 615 S.E.2d at 72. For the reasons explained below, we affirm

the Commission.

1. The emergency compelled Ms. Miller to act instantly.

¶ 14 Our courts have defined an emergency situation “as that which compels one to

act instantly to avoid a collision or injury.” Keith v. Polier, 109 N.C. App. 94, 98, 425

S.E.2d 723, 726 (1993) (cleaned up).

¶ 15 Plaintiffs contend the emergency did not require Ms. Miller to act instantly

because she had between 10.9 and 15.6 seconds to react from the moment she first

observed Mr. Larkin’s vehicle in her lane until the point of impact. In its decision

and order, the Commission explicitly considered the timing of the collision and

described an accident reconstruction expert’s testimony on this issue: “Ms. Miller had

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10.9 to 15.6 seconds to first perceive and react, slow the bus to a stop, and then

accelerate to impact speed[,]” and she “had 5 seconds from slowing the bus to the

point of impact.” (Emphasis added). The Commission further found that Ms. Miller

had “less than five seconds” to act after realizing that the oncoming vehicle would not

correct its path:

38. . . . . When it became apparent that Mr. Larkin was

slumped over the steering wheel and Mr. Larkin would not

return his vehicle to the proper lane, Ms. Miller had less

than five seconds to choose to either (1) steer right and risk

overturning the school bus in the ditch with her student

passenger, or (2) steer left into the empty lane.

We are bound by the Commission’s unchallenged findings, Medlin, 367 N.C. at 423,

760 S.E.2d at 738, and we will not reweigh the evidence, Adams v. AVX Corp., 349

N.C. 676, 681, 509 S.E.2d 411, 414 (1998) (“[O]n appeal, this Court does not have the

right to weigh the evidence and decide the issue on the basis of its weight.” (quotation

marks and citation omitted)). See also Simmons, 171 N.C. App. at 728, 615 S.E.2d at

72.

¶ 16 Our Court has held that reacting in less than five seconds qualifies as acting

“instantly” to avoid injury for the purposes of the sudden emergency doctrine. See,

e.g., Schaefer v. Wickstead, 88 N.C. App. 468, 471-72, 363 S.E.2d 653, 655 (1988)

(holding an instruction on the doctrine of sudden emergency was warranted when the

defendant had between 4.55 and 5.5 seconds to avoid hitting a pedestrian with his

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vehicle).

¶ 17 The decisions Plaintiffs cite––Keith v. Polier, 109 N.C. App. 94, 425 S.E.2d 723

(1993), and Colvin v. Badgett, 120 N.C. App. 810, 463 S.E.2d 778 (1995)––are

factually distinguishable. In Keith, we held the defendant was not entitled to the

benefit of an instruction on the sudden emergency doctrine because the alleged

emergency was not sudden where he rear-ended a car stopped at a traffic signal, 109

N.C. App. at 99-100, 425 S.E.2d at 726-27, and, in Colvin, we held that the driver’s

“fear and apprehension upon seeing his sister-in-law’s truck on the side of the road,

while understandable, did not give rise to a situation where he had to act instantly

to avoid injury to himself or another” to warrant a jury instruction on the doctrine of

sudden emergency, 120 N.C. App. at 812, 463 S.E.2d at 780.

¶ 18 The Commission properly concluded the emergency, created by Mr. Larkin

driving in the wrong lane of travel, compelled Ms. Miller to act instantly, in less than

five seconds, to avoid a head-on collision. See Schaefer, 88 N.C. App. at 471-72, 363

S.E.2d at 655.

2. Ms. Miller did not contribute to or cause the sudden emergency.

¶ 19 “The doctrine of sudden emergency applies when a defendant is confronted

with an emergency situation not of his own making and requires [a] defendant only

to act as a reasonable person would react to similar emergency circumstances.”

Weston v. Daniels, 114 N.C. App. 418, 420, 442 S.E.2d 67, 71 (1994) (citation omitted)

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(emphasis added). But a defendant shall not be “held liable for failure to act as a

calm, detached reflection at a later date would dictate.” Id. (citation omitted).

¶ 20 As an initial matter, the Board contends Plaintiffs have waived review of this

challenge to the application of the sudden emergency doctrine—that Ms. Miller is not

entitled to the defense because her negligence caused or contributed to the sudden

emergency—because they did not present the specific challenge to the Commission

on appeal from the Deputy Commissioner’s decision and order. Assuming without

deciding whether Plaintiffs preserved this issue for our review, we hold the

Commission correctly concluded Ms. Miller’s actions are insulated from liability

under the doctrine of sudden emergency.

¶ 21 Plaintiffs disregard the Commission’s binding findings that Ms. Miller did not

cross the center, yellow line and that she acted reasonably in maneuvering the bus to

the left:

23. . . . . The school bus is fully in its appropriate lane,

angled slightly to the left, with its front left tire slightly

over the nearest double yellow line but not across the

second yellow line. Thus, based on the simulation, the

point of impact is within Ms. Miller’s lane of traffic with

the front right of Mr. Larkin’s car striking the front right

of the school bus.

38. Based upon the preponderance of the evidence in view

of the entire record, the Full Commission finds . . . that Ms.

Miller, at the time, had to make an immediate decision

when confronted with an impending collision. The Full

Commission finds that, given the relatively short window

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of time in which she had to react, Ms. Miller acted

reasonably in her evasive maneuvers to avoid a collision

with Mr. Larkin’s vehicle. . . . Ms. Miller assessed what

she thought was the best course of action based on her

years of experience as a driver, her training, and

familiarity with her school bus route. While it may be best

to move the school bus right when a vehicle drifts into the

path of a school bus, training materials acknowledge that

there are times when going right is not possible. The Full

Commission finds that Ms. Miller acted reasonably when

she drove to the left in an attempt to avoid the collision

with Mr. Larkin’s car.

39. Based upon the preponderance of the evidence in view

of the entire record, the Full Commission finds that even if

Ms. Miller’s school bus crossed the double yellow line prior

to the collision, doing so was reasonable given that Ms.

Miller was attempting to avoid Mr. Larkin’s vehicle.

These findings support the Commission’s legal conclusion that Ms. Miller’s actions

are insulated from liability under the doctrine of sudden emergency. See Fennell, 145

N.C. App. at 589, 551 S.E.2d at 490.

¶ 22 Plaintiffs compare this case to several cases where a driver was precluded from

invoking the sudden emergency doctrine because of their own negligence—for failure

to travel at a safe speed, maintain control, or keep a proper lookout—because it

contributed to the emergency. See, e.g., Goins v. Time Warner Cable Se., LLC, 258

N.C. App. 234, 238-40, 812 S.E.2d 723, 727-28 (2018) (cyclists were traveling too fast

and failed to keep proper lookout for downed utility line in the roadway); Sobczak v.

Vorholt, 181 N.C. App. 629, 639, 640 S.E.2d 805, 812 (2007) (driver was “on notice of

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a potential encounter with ice” in snowy conditions); Gupton v. McCombs, 74 N.C.

App. 547, 549-50, 328 S.E.2d 886, 888 (1985) (driver “failed to keep a vigilant lookout

for the [pedestrian]” and sound her horn); White v. Greer, 55 N.C. App. 450, 454, 285

S.E.2d 848, 851-52 (1982) (motorcyclist failed to avoid a car turning left in the

oncoming lane). Those cases are inapposite because, throughout the sequence of this

collision, Ms. Miller drove the bus at a reasonable speed, maintained control of the

bus, and kept a lookout for Mr. Larkin’s vehicle and her surroundings.

¶ 23 In this case, Mr. Larkin created an emergency by traveling in the wrong lane

toward a head-on collision with the school bus. See, e.g., Casey v. Fredrickson Motor

Express Corp., 97 N.C. App. 49, 56, 387 S.E.2d 177, 181 (1990) (holding evidence of

an oncoming vehicle in the wrong lane of travel was sufficient to warrant a jury

instruction on the sudden emergency doctrine). And Ms. Miller’s subsequent actions

did not contribute to or cause the sudden emergency. See Weston, 114 N.C. App. at

420, 442 S.E.2d at 71. When Ms. Miller first saw Mr. Larkin’s vehicle in her lane,

she immediately slowed the bus and honked her horn to warn the driver. Because

Mr. Larkin did not return to the correct lane and Ms. Miller was concerned about the

slope on the right shoulder of the roadway as well as the safety of the bus’s remaining

passenger, she accelerated to the left in her lane to avoid a collision. Ms. Miller did

not cross the yellow line and school bus safety training materials “acknowledge that

there are times when going right is not possible.” She cannot be held liable “for failure

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to act as a calm, detached” accident reconstruction expert with the benefit of

hindsight. Id. (citation omitted).

¶ 24 Since Ms. Miller was compelled to act instantly and her actions did not

contribute to the creation of the emergency, we hold the Commission appropriately

applied the doctrine of sudden emergency and concluded the Board, through the

actions of its employee Ms. Miller, was not negligent.

¶ 25 Because we affirm the Commission’s conclusion that Ms. Miller was not

negligent and Plaintiffs do not challenge the Commission’s alternative conclusion

that Plaintiffs’ claims were further barred based on their own contributory

negligence, we need not address Plaintiffs’ remaining argument about the doctrine of

last clear chance. See Wray v. Hughes, 44 N.C. App. 678, 684-85, 262 S.E.2d 307, 311

(1980) (“[W]here there is no evidence that [a] defendant failed to keep a reasonable

lookout in the direction of travel or that a person exercising a proper lookout would

have been able in the exercise of reasonable care to avoid the collision, the last clear

chance doctrine does not apply.” (citations omitted)).

III. CONCLUSION

¶ 26 For the reasons outlined above, we affirm the decision and order of the

Commission.

AFFIRMED.

Judges ARROWOOD and WOOD concur.