upholding Industrial Commission determination that DOT was negligent in connection with a railroad crossing based on the State’s knowledge, because of earlier accidents and analysis from engineers, that the crossing was hazardous
How later courts described this case
- upholding Industrial Commission determination that DOT was negligent in connection with a railroad crossing based on the State’s knowledge, because of earlier accidents and analysis from engineers, that the crossing was hazardous
- affirming the Commission’s finding that the DOT negligently failed to maintain a railroad crossing, in dereliction of its statutory duty to do so
- upholding an opinion regarding defendant’s negligence that did not address the cost to NCDOT of installing warning signs
Written by the judges who cited it.
Distinguished
Distinguished by Nunn v. N.C. Department of Public Safety, 227 N.C. App. 95 (2013)
Smith is distinguishable from the present case because the Commission in Smith specifically found that a particular employee failed to place adequate signage, even if the Commission ultimately concluded that he failed to do so because he was not properly instructed by an unknown supervisor.
The opinion
TYSON, Judge,
concurring in part, concurring in the result in part.
I concur with parts I, II, and III of the majority’s opinion affirming the Full Commission’s finding that plaintiff complied with the requirements of the Tort Claims Act, that defendant was negligent, and that plaintiff was not contributorily negligent.
*106 I also concur in the result to vacate the damage award and remand to the Full Commission for further determination. I write separately to state that on remand the Full Commission may ignore speculative evidence and resolve any conflicts and inconsistencies in the record evidence.
The Commission may “weigh the evidence [presented to the deputy commissioner] and make its own determination as to the weight and credibility of the evidence.” The Commission may strike the deputy commissioner’s findings of fact even if no exception was taken to the findings.
Jenkins v. Piedmont Aviation Servs., 147 N.C. App. 419, 427 , 557 S.E.2d 104, 109 (2001), disc. review denied, 356 N.C. 303 , 570 S.E.2d 724 (2002) (quoting Keel v. H & V Inc., 107 N.C. App. 536, 542 , 421 S.E.2d 362, 367 (1992)).
Plaintiff outlined the damages specifically in the last paragraph of the complaint: semi-tractor damages of $11,537.34, semi-trailer damages of $18,625.00, moving equipment lost or destroyed totaling $7,000.00, site clean-up, tow and wrecker fees totaling $2,294.00, lost wages in the amount of $42,000.00, and incidental expenses of $2,000.00. Although these damages total $83,456.34, plaintiff’s prayer for relief is to recover damages of $82,892.63 plus interest and attorneys’ fees.
At the hearing before the Deputy Commissioner, plaintiff testified to his damages. Plaintiff stated that damages to the tractor were stipulated to and were found under Tab B. The estimate under Tab B for damages to the tractor is $5,973.63. Plaintiff explained to the Deputy that after the tractor was repaired, he experienced new problems involving the cab’s electrical system and leaks. The repairs to the cab totaled another $5,000.00. Damage to the trailer under Tab C, which was not stipulated to but was not contested, determined to be a total loss of $18,625.00. Plaintiff requested this number be reduced by the salvage value of $787.00. Plaintiff also testified that there were wrecker fees but did not explain the amount or where to find those. The invoice for the wrecker fee is contained under Tab D, but the estimate is not readable. As for site clean-up, plaintiff pointed to Tab E but specifically requested $2300.00. Plaintiff requested the storage fees stipulated to under Tab F which was $960.00, and lost income in the amount of $42,000.00. The lost income determination was based upon plaintiff’s testimony of yearly income divided by approximate *107 number of weeks worked a year multiplied by the number of weeks plaintiff was out of work due to the loss of his trailer. Plaintiff asked for damages in the amount of $7,000.00 for lost moving equipment and $2,000.00 for incidental expenses in locating a new trailer and equipment. These damages total $83,071.63, an amount higher than he demanded in the complaint.
The Deputy Commissioner awarded plaintiff $84,053.63, more than plaintiff asked for in his complaint or testified to at the hearing. The Deputy’s recommended decision quantified the following: $10,973.63 for damage to the tractor, $18,625.00 for damage to the trailer, $9,000.00 for equipment lost and expenses incurred in finding a new trailer and equipment, and $3,455.00 for wrecker, site clean-up, and storage fees. The Deputy failed to subtract the $787.00 from the trailer damage for salvage, and found the expenses for wrecker, site clean-up, and storage to be greater than the amounts alleged in the complaint and testified to by plaintiff.
In the area of state tort claims, wide discretion is given to the Commission in its determination of damages. See Brown v. Board of Education, 269 N.C. 667, 671 , 153 S.E.2d 335, 339 (1967). This broad discretion allows the Commission to weigh the evidence and award appropriate damages. The findings of fact which support the award should be based upon competent evidence in the record. Bullman v. Highway Comm., 18 N.C. App. 94, 98 , 195 S.E.2d 803, 806 (1973).
The Commission’s finding of fact that plaintiff had stated and the Deputy had found gross and not net income loss is supported by an inference that statements of yearly income or salary are generally expressed as gross amounts. The Commission may properly determine whether plaintiff’s lost income estimates were expressed as gross or net income in making its award. On remand, the Commission is free to ignore any speculative damages, resolve the inconsistencies, accept or reject the record evidence, and issue an award consistent with the competent evidence in the record.