The North Carolina Court of Appeals has overturned a ruling absolving the N.C. Department of Transportation of liability in the deaths of two women in a car crash on Interstate 85.
The women’s estates had contended that the NCDOT should be held liable for not installing median barriers on the highway, something the agency did do, after four years of inaction, in response to the accident. In returning the case to the N.C. Industrial Commission for reconsideration on Feb. 3, the appeals court required that it consider the risk of injury against cost and budget considerations to determine whether the NCDOT’s actions were negligent.
On June 12, 1997 Melissa Viar lost control of her car during a heavy rainstorm on southbound I-85 in Rowan County. Her car hit another southbound vehicle before sliding across the median into the northbound lanes and the path of an oncoming truck. Viar was seriously injured in the collision. Her two younger sisters, Megan and Macey Viar, were killed .
Under the Tort Claims Act, action can be brought against the state for the negligence of its employees, including negligent omissions. Case law has also established that “liability does not require that the negligence of an employee be the sole proximate cause of injury.” Based upon these legal principles, the estates brought suit.
The NCDOT first studied the problem of cross-median accidents on the state’s interstate highways in 1993. Between 1988 and 1991, 105 people were killed in such accidents. The department found that these incidents represented only 3 percent of accidents on interstates but accounted for 32 percent of fatalities. It also noted that such accidents were “steadily increasing” in number and severity, and were three times as likely as other accidents to result in death. Impaired driving and speeding were found not to be the reasons for a disproportionate number of cross-median accidents.
The study also recommended that median barriers be installed on 24 segments of North Carolina interstates even though no state or federal regulations required them. In 1994, the study’s top priority, I-40 between Raleigh and the Research Triangle Park, was fitted with a median barrier system. No crossover fatalities have happened on the stretch of road since the installation.
None of the other 23 sections, however, was fitted with barrier systems by 1997. The Rowan County stretch of I-85 was ranked as the seventh in line to receive median barriers.
Shortly after the accident, the NCDOT found the money to install median barriers on the 23 remaining sections of interstate.
The N.C. Industrial Commission, which hears cases under the Tort Claims Act, heard testimony in the case and made findings of fact and conclusions of law. It rejected the Viar family’s claims, finding that they had not proven negligence on the state’s part.
Upon appeal, a majority of the three-judge panel of the Court of Appeals found the Industrial Commission’s fact-finding lacking.
“First, the Industrial Commission’s findings of fact were inadequate to support its conclusion that defendant’s actions in delaying construction of the proposed median barrier were reasonable with regard to maintaining safe transportation,” Judge Eric Levinson wrote for the court.
“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 $1.34 million with annual maintenance costs of $245,546. Findings related to the NCDOT’s 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.”
The court went on to conclude that the Industrial Commission must weigh the costs of the improvement against “both the likelihood of the risk occurring and the degree of harm that would result.”
“In the instant case, the Industrial Commission’s 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’s funding and budgetary considerations. However, nothing in the Industrial Commission’s opinion indicates that the dollar amount was evaluated in the context of the likelihood of an accident occurring at the Rowan County I-85 location and the degree of harm that might be caused by such an accident.”
Judge John Tyson strongly dissented from the majority opinion in the case, arguing that the appeal should have been dismissed, and, in any case, that the NCDOT was not liable under the “public duty”doctrine. Because of the dissent, the NCDOT may, by right, have the case heard before the N.C. Supreme Court.
The case is Viar v. N.C. Dep’t of Transp., (03-25).
Michael Lowrey is associate editor of Carolina Journal