Holt v. N.C. Dep't of Transp. ( 2016 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-445
Filed: 2 February 2016
North Carolina Industrial Commission, I.C. Nos. TA-22272 – 22275
DANIEL and LISA HOLT, Administrators of the ESTATE OF HUNTER DANIEL
HOLT; STEVEN GRIER PRICE, Individually; STEVEN GRIER PRICE,
Administrator of the ESTATE OF McALLISTER GRIER FURR PRICE; STEVEN
GRIER PRICE, Administrator of the ESTATE OF CYNTHIA JEAN FURR, Plaintiffs,
v.
NORTH CAROLINA DEPARTMENT OF TRANSPORTATION, Defendant.
Appeal by Defendant from opinion and award entered 29 December 2014 by
the North Carolina Industrial Commission. Heard in the Court of Appeals 21
September 2015.
DeVore Acton & Stafford, PA, by Fred W. DeVore, III, F. William DeVore IV
and Derek P. Adler; and Rawls Scheer Foster & Mingo PLLC, by Amanda A.
Mingo, for Plaintiffs-Appellees.
Attorney General Roy Cooper, by Special Deputy Attorney General Melody R.
Hairston and Special Deputy Attorney General Amar Majmundar, for
Defendant-Appellant.
McGEE, Chief Judge.
Cynthia Jean Furr (“Furr”) was driving her two-year-old daughter McAllister
Grier Furr Price (“McAllister”) in her automobile (“the Furr car”) in the early evening
of 4 April 2009. Furr was driving the approximately one-half mile from her home to
her church, where she was the musical director. As Furr attempted to make a left-
HOLT V. N.C. DOT
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hand turn from her street, Riverpointe Drive, onto Highway 49 in the direction of
downtown Charlotte, the Furr car was broadsided by a Mitsubishi (“the Stasko car”)
driven by twenty-year-old Tyler Stephen Stasko (“Stasko”). Eleven-year-old Rex
Evan Thomas (“Rex”) and thirteen-year-old Hunter Daniel Holt (“Hunter”) were
passengers in the Stasko car at the time of the collision. Furr, McAllister, and Hunter
died as a result of injuries sustained in the collision. This collision occurred in a four-
way intersection (“the intersection”) where Riverpointe Drive and Palisades Parkway
intersected with Highway 49.
According to the findings of fact of the Full Commission of the North Carolina
Industrial Commission (“Industrial Commission”), before the collision, Stasko was
driving Rex and Hunter home from a day trip to Carowinds amusement park. The
Stasko car was heading in a westerly direction on Highway 49, away from Charlotte
and towards Lake Wylie and South Carolina. While Stasko was stopped for the traffic
signal at the intersection of Shopton Road, Rex and Hunter noticed two female friends
in an adjacent vehicle driven by Carlene Atkinson (“Atkinson”). The kids “began
gesturing and joking with each other.” “When the light at Shopton Road turned
green, Mr. Stasko and Ms. Atkinson sped off at a high rate of speed in the direction
of the Palisades/Riverpointe intersection.” Stasko and Atkinson were apparently
engaging in a race. The traffic signal at Shopton Road was the last traffic signal or
sign Stasko would encounter before the collision. There was no traffic signal or sign
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regulating traffic on Highway 49 at the intersection. There was a stop sign on
Riverpointe Drive, requiring drivers to stop before entering or crossing Highway 49.
After coming to the stop sign on Riverpointe Drive, Cynthia
Furr crossed Hwy 49 in order to make a left turn and
proceed east on Hwy 49. She slowed prior to concluding
the left turn in order to allow eastbound traffic on Hwy 49
to clear. At the Riverpointe Drive intersection, Mr.
Stasko’s vehicle, which was traveling in the left through
lane, collided with the left side of Ms. Furr’s vehicle at an
estimated speed of 86 miles per hour.
Atkinson, who was “some distance behind” the Stasko car when it impacted the Furr
car, stopped briefly at the scene of the accident, and then “left the accident scene
without offering assistance or waiting for law enforcement personnel to arrive.”
Beginning in 2000, the area around the intersection underwent significant
changes. Prior to 2000, Highway 49, in the vicinity of Riverpointe Drive, was a two-
lane highway with a speed limit of 45 miles per hour. Riverpointe Drive terminated
at its intersection with Highway 49, and there was no roadway continuing on the
opposite side of Highway 49 from Riverpointe Drive. By late 2005, Highway 49 had
been widened to a four-lane highway, and the speed limit had been increased to 55
miles per hour. Defendant North Carolina Department of Transportation (“DOT”)
was responsible for this project (“the DOT project”). In addition, a four-way
intersection had been created by the addition of Palisades Parkway across Highway
49 from the terminus of Riverpointe Drive. Palisades Parkway was constructed by
Crescent Resources, LLC (“Crescent”) as a means of connecting its new housing
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development to Highway 49. Pursuant to an agreement with DOT, Crescent was
permitted to construct Palisades Parkway and add designated turn lanes on Highway
49, which included two dedicated turn lanes for the west-bound lanes and one
dedicated turn lane for the east-bound lanes. Subsequent to these projects, a person
making a left-hand turn from Riverpointe Drive onto Highway 49 East had to drive
over or by the following: one dedicated turn lane for west-bound traffic turning right
onto Riverpointe Drive; two west-bound lanes of traffic; two dedicated turn lanes for
west-bound traffic to turn left onto Palisades Parkway; one dedicated lane for east-
bound traffic to turn left onto Riverpointe Drive; and two east-bound lanes of traffic.
There was also a dedicated turn lane for east-bound traffic to turn right onto
Palisades Parkway. In addition to being aware of east and west-bound traffic on
Highway 49, a driver would have to be aware of traffic from Palisades Parkway
attempting to either turn onto east or west-bound Highway 49, or attempting to cross
Highway 49 to access Riverpointe Drive.
The plan for the intersection included installation of traffic signals, which were
to be funded by Crescent and installed by DOT. At the time of the 4 April 2009
collision no signals had been installed, even though one of DOT’s district engineers
had warned Crescent in 2006 that a signal was needed “at [that] time.”
This action was brought in the Industrial Commission pursuant to the Tort
Claims Act by Steven Grier Price, as the administrator of the estates of Furr and
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McAllister; and Daniel and Lisa Holt, as the administrators of Hunter’s estate
(together, “Plaintiffs”). Plaintiffs alleged that DOT negligently failed to install traffic
signals at the intersection, and that this negligence was a proximate cause of the
collision that killed Furr, McAllister, and Hunter.
The following relevant stipulations were entered by Plaintiffs and DOT:
3. This case arises out of a fatal automobile crash on 4 April
2009, at the intersection of Highway 49 and Riverpointe
Drive. A car driven by Tyler Stasko collided with a vehicle
driven by Cynthia Jean Furr. Highway 49 is a state
maintained highway. Prior to the accident, Highway 49
had been widened and a fourth leg (Palisades Parkway)
had been added to the intersection. The claimants contend
that a proximate cause of the accident was the failure of
[DOT] to install a traffic signal at the intersection. [DOT]
stipulates that it had a duty to install a signal and that it
breached that duty; however, [DOT] contends that said
breach was not a proximate cause of the collision. Rather,
[DOT] contends that the acts of others, including the
intervening and superseding criminal acts of Mr. Stasko
and Ms. Atkinson, were the proximate cause of the
collision. Cynthia Jean Furr and her daughter, McAllister
Grier Furr Price, were killed in the car driven by Ms. Furr.
Hunter Daniel Holt was killed as a passenger in the vehicle
driven by Tyler Stasko.
4. At all times relevant to this action, Highway 49 was a
road constructed and maintained by [DOT].
5. Originally, Highway 49 was a two lane road, but
beginning in the early 2000’s, [DOT] undertook a
construction project to widen and improve Highway 49.
6. During the project, Crescent Resources sought to
construct a road opposite Riverpointe Drive, called
Palisades Parkway. This road was intended to service a
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new subdivision known as The Palisades.
7. As a part of a conditional zoning agreement with the
Mecklenburg County Planning Commission, Crescent
agreed to fund a traffic signal at the Highway 49/Palisades
Parkway/Riverpointe Drive intersection. Although
Palisades Parkway was connected to Highway 49 prior to
the subject accident, Crescent did not pay those funds at
any time prior to the crash in 2009.
8. A traffic signal was not installed prior to the crash of 4
April 2009.
Because of DOT’s stipulation that it had a duty to install a traffic signal at the
intersection, and that it breached that duty, the sole issue before the Industrial
Commission was whether DOT’s breach of its duty was a proximate cause of the
collision and resulting deaths. A deputy commissioner entered a decision and order
on 14 February 2014. Because the deputy commissioner found that DOT could not
have foreseen Stasko’s criminal acts, the deputy commissioner concluded that the
failure to erect a traffic signal was not a proximate cause of the deaths. Plaintiffs
appealed to the Full Commission.
The Full Commission reversed the decision of the deputy commissioner,
concluding:
[DOT’s] breach of its duty to install a traffic signal at the
. . . intersection was a proximate cause of the accident that
resulted in the deaths of Cynthia Furr, McAllister Furr
Price and Hunter Holt. The Commission concludes that
the intervening negligence of Mr. Stasko and Ms. Atkinson
was also a proximate cause of the accident, but not the sole
proximate cause. As such, [DOT] is not insulated from
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liability for its negligence.
In support of this conclusion, the Full Commission found the following relevant facts:
5. The compass orientation of curving Hwy 49 is such that
the road travels east to west, with the easterly direction
headed toward Charlotte and the westerly direction
headed towards the Buster Boyd Bridge and South
Carolina. There is a hill to the left of the intersection of
Hwy 49 and Riverpointe Drive that limits visibility of the
intersection and drivers on Hwy 49.
6. The subject intersection was significantly altered during
[DOT’s] widening project and the construction by Crescent.
Some of the modifications included a right hand turn lane
onto Riverpointe Drive, dual left turn lanes on Hwy 49 onto
Palisades Parkway, dual left turning lanes on Palisades
Parkway onto Hwy 49 in the direction of South Carolina,
and removal of the grass median between the east and west
travel lanes in the eastern leg of the intersection towards
Charlotte.
7. On 10 January 2006, [DOT’s] District Engineer, Louis L.
Mitchell, wrote to Kublins Transportation Group, a
consultant for Crescent, and advised that the traffic signal
needed to be installed “at this time.” Although Crescent
completed and [DOT] approved the intersection, Crescent
did not fund and [DOT] did not install a traffic signal at
that time. [DOT] did not install a traffic signal prior to 4
April 2009.
....
10. Detective Jesse D. Wood of the Charlotte-Mecklenburg
Police Department was the lead investigator into this
crash. Det. Wood testified, and the Commission finds, that
prior to stopping at the Shopton Road intersection, Mr.
Stasko had encountered several other traffic signals and
had obeyed each. The Commission further finds that the
greater weight of the evidence shows that Mr. Stasko and
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Ms. Atkinson had not been racing prior to leaving the
Shopton Road intersection.
....
16. Daren Marceau is an expert in civil engineering, traffic
crash investigation, traffic crash reconstruction, and
human factors. Mr. Marceau explained that there are
national standards of American Association of State
Highway and Transportation Officials (“AASHTO”)
regarding sight distances at intersections. Mr. Marceau
testified, and the Commission finds, that even before the
addition of Palisades Parkway, the sight distance to the
east on Hwy 49 from Riverpointe Drive, and the sight
distance of the intersection for vehicles traveling west on
Hwy 49 was inadequate due to a vertical curve, a hill, in
the highway just before the Riverpointe intersection.
....
18. Mr. Marceau, Mr. Flanagan [DOT’s expert] and Det.
Wood all testified that if a traffic signal had been installed,
the signal and presence of the intersection would have been
visible to drivers traveling west for approximately one-half
mile on Hwy 49. With the traffic signal visible for one-half
mile to a driver traveling west on Hwy 49 at 86 mph, the
presence of the intersection and the right of way direction
from the signal would have been evident for approximately
twenty-one (21) seconds. Without the signal, the
intersection became visible at 650 feet and it would take
the same driver only approximately five (5) seconds to
cover that distance.
19. On 4 April 2009, there were no warning signs or other
devices on Hwy 49 to warn drivers of the approaching
Riverpointe intersection.
20. Plaintiff’s expert, Mr. Marceau, reviewed nine similar
accidents at the Riverpointe intersection which had
occurred following the start of [DOT’s] widening project
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and prior to the fatal crash on 4 April 2009. Mr. Marceau
testified that in his expert opinion, and the Commission
finds, that had the Riverpointe intersection been properly
signalized, the crash on 4 April 2009 would not have
occurred. Mr. Marceau based his opinion on the lack of
visibility of the Riverpointe intersection and the driving
behavior of Mr. Stasko prior to the crash. Mr. Marceau
noted that both Mr. Stasko and Ms. Atkinson had stopped
at traffic signals prior to the Riverpointe intersection and
that there was no history of either of them running
stoplights. Mr. Marceau testified, “I never had a doubt
that they would’ve stopped at this traffic signal.”1
21. [DOT’s] expert, Mr. Flanagan, did not have an opinion
as to whether the Riverpointe intersection was dangerous
or whether the lack of a signal contributed to the crash.
....
24. Given [DOT’s] stipulation that a signal was needed, the
lack of sight distance to and from the intersection, the
speed limit of the roadway, the size of the intersection, and
the number of previous similar accidents at this
intersection, the Commission finds that the accident that
resulted in the deaths of Cynthia Furr, McAllister Furr
Price and Hunter Holt was a foreseeable consequence of
[DOT’s] stipulated breach of duty in failing to install a
traffic signal at that intersection.
The Full Commission ruled that DOT’s failure to install traffic signals at the
intersection, which DOT stipulated constituted a breach of its duty to the public, was
1 DOT contests this portion of finding of fact 20. However, this sentence merely states what
Mr. Marceau’s testimony was. The Full Commission did not find as fact that Stasko or Atkinson would,
without a doubt, have stopped at the traffic signal had one been present. We assume, however, that
Mr. Marceau’s testimony informed the Full Commission’s proximate cause findings.
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a proximate cause of the accident and resulting deaths. The Full Commission
awarded the estates of the deceased $1,000,000.00 for each decedent. DOT appeals.
I.
DOT’s sole argument on appeal is that the “Industrial Commission erred when
it failed to determine that the criminal acts of third-parties were the sole proximate
cause of the collision.” We disagree.
It is well established that
[t]he standard of review for an appeal from the Full
Commission’s decision under the Tort Claims Act “shall be
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
competent evidence to support them.” 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. “The court’s duty goes no
further than to determine whether the record contains any
evidence tending to support the finding.” Thus, “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.”
Simmons v. Columbus Cty. Bd. of Educ., 171 N.C. App. 725, 727-28, 615 S.E.2d 69,
72 (2005) (citations omitted). “‘[T]he [Industrial] Commission is the sole judge of the
credibility of the witnesses and the [evidentiary] weight to be given their testimony,’
findings of fact by the Commission may be set aside on appeal when there is a
complete lack of competent evidence to support them[.]” Young v. Hickory Bus.
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Furniture, 353 N.C. 227, 230, 538 S.E.2d 912, 914 (2000) (citations and quotation
marks omitted). Although DOT contests certain findings of fact, because we find
competent record evidence supporting the relevant findings of fact recited above, they
are binding on appeal. Id. We discuss the Full Commission’s finding that the
accident was “a foreseeable consequence of [DOT’s] stipulated breach of duty in
failing to install a traffic signal at that intersection” in greater detail below. See
Gaines v. Cumberland Cnty. Hosp. Sys., Inc., 203 N.C. App. 213, 219, 692 S.E.2d 119,
122 (2010) (“‘[p]roximate cause is ordinarily a question of fact’”) (citation omitted).
The dissenting opinion contends that we should reverse the Full Commission's
decision and order for two distinct reasons: (1) because "DOT's breach of duty was not
an actual cause of [P]laintiffs’ injuries[,]" and (2) assuming arguendo DOT’s breach
of duty was an actual cause of the accident, the intentional criminal acts of Stasko
and Atkinson were unforeseeable and therefore constituted “an independent,
intervening cause absolving DOT of liability.” However, only the proximate cause
argument, and not any actual cause argument, was raised by DOT at trial, and now
on appeal. DOT stipulated that “it had a duty to install a signal and that it breached
that duty; [DOT] contend[ed at the hearing] that said breach was not a proximate
cause of the collision.” However, there is no mention of “actual cause” in the
stipulations. Further, the Full Commission’s decision and order identifies the only
issue to be decided by the Full Commission, other than damages, as “[w]hether the
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death[s] of [Furr, McAllister, and Hunter were] proximately caused by the failure of
[DOT] to install a traffic signal at the intersection of Pallisades Parkway and
Highway 49[.]” This Court cannot, in this situation, base our opinion on arguments
not first made before, and passed on by, the Industrial Commission.
Rule 10(a)(1) of the North Carolina Rules of Appellate
Procedure states that in order “to preserve an issue for
appellate review, a party must have presented to the trial
court a timely request, objection, or motion, stating the
specific grounds for the ruling the party desired the court
to make” and must “obtain a ruling upon the party’s
request, objection, or motion.” By failing to raise the issue
of default at trial, respondent has failed to preserve it for
appellate review.
In re Foreclosure of a Deed of Trust Executed By Rawls, __ N.C. App. __, __, 777 S.E.2d
796, 801 (2015) (citation omitted).
In addition, the sole issue DOT brought forth on appeal was the following: “The
Industrial Commission erred when it failed to determine that the criminal acts of
third-parties were the sole proximate cause of the collision.” This is the sole issue we
are authorized to answer. N.C.R. App. P. 28(b)(6) (“Issues not presented in a party’s
brief, or in support of which no reason or argument is stated, will be taken as
abandoned.”). Because DOT did not make a cause-in-fact, or “actual cause” argument
on appeal, it is not properly before us. Id.; State v. Dinan, __ N.C. App. __, __, 757
S.E.2d 481, 485, disc. review denied, 367 N.C. 522, 762 S.E.2d 203 (2014). It is not
the job of this Court to make DOT’s argument for it. Id.
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II.
DOT argues it was unforeseeable that Stasko and Atkinson would engage in a
“drag race” “committed in complete disregard of the law.” DOT argues: “Our State’s
jurisprudence has affirmed, and reaffirmed, the concept that ‘the intervening or
superseding criminal acts of another preclude liability of the initial negligent actor
when the injury is caused by the criminal acts.’ Tise v. Yates Construction Co., 345
N.C. 456, 460, 480 S.E.2d 677, 680 (1997).” DOT’s selective quoting from Tise would
seem to indicate that the “concept” discussed in Tise represents a per se rule. This is
not the case, as the full quotation in Tise makes clear:
The general rule is that the intervening or superseding
criminal acts of another preclude liability of the initial
negligent actor when the injury is caused by the criminal
acts. As our Court of Appeals noted . . .,
[t]he doctrine of superseding, or intervening,
negligence is well established in our law. In order
for an intervening cause to relieve the original
wrongdoer of liability, the intervening cause must be
a new cause, which intervenes between the original
negligent act and the injury ultimately suffered, and
which breaks the chain of causation set in motion by
the original wrongdoer and becomes itself solely
responsible for the injury.
Id. at 460-61, 480 S.E.2d at 680 (emphasis added) (citations omitted). “The test by
which the negligent conduct of one is to be insulated as a matter of law by the
independent negligent act of another[ ] is reasonable unforeseeability on the part of
the original actor of the subsequent intervening act and resultant injury.” Id. at 461,
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480 S.E.2d at 680-81 (emphasis added) (citations and quotation marks omitted). This
is true whether or not the alleged superseding act is criminal in nature. See Id.
Regarding superseding proximate causes, our Supreme Court has held:
It is immaterial how many new events or forces have been
introduced if the original cause remains operative and in
force. In order for the conduct of the intervening agent to
break the sequence of events and stay the operative force
of the negligence of the original wrongdoer, the intervening
conduct must be of such nature and kind that the original
wrongdoer had no reasonable ground to anticipate it.
....
[T]he principle is stated this way: “In order to be effective
as a cause superseding prior negligence, the new,
independent, intervening cause must be one not produced
by the wrongful act or omission, but independent of it, and
adequate to bring about the injurious result; a cause which
interrupts the natural sequence of events, turns aside their
course, prevents the natural and probable result of the
original act or omission, and produces a different result,
that reasonably might not have been anticipated.”
‘‘If the intervening cause is in reality only a condition on or
through which the negligence of the defendant operates to
produce an injurious result, it does not break the line of
causation so as to relieve the original wrongdoer from
responsibility for the injury. A superseding cause cannot
be predicated on acts which do not affect the final result of
negligence otherwise than to divert the effect of the
negligence temporarily, or of circumstances which merely
accelerate such result.
‘‘‘The inquiry must, therefore, always be whether there was
any intermediate cause disconnected from the primary
fault, and self-operating, which produced the injury.’’’
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Ordinarily, “the connection is not actually broken if the
intervening event is one which might in the natural and
ordinary course of things, be anticipated as not entirely
improbable, and the defendant’s negligence is an essential
link in the chain of causation.”
The test of foreseeability as an element of proximate cause
does not require that the tortfeasor should have been able
to foresee the injury in the precise form in which it
occurred. “All that the plaintiff is required to prove on the
question of foreseeability, in determining proximate cause,
is that in ‘the exercise of reasonable care, the defendant
might have foreseen that some injury would result from his
act or omission, or that consequences of a generally
injurious nature might have been expected.’’’
Riddle v. Artis, 243 N.C. 668, 671-72, 91 S.E.2d 894, 896-97 (1956) (citations omitted).
We agree with the Full Commission that the acts of Stasko and Atkinson
combined with DOT’s breach of duty to cause the collision and resulting deaths. We
further hold that it was reasonably foreseeable that a vehicle speeding toward the
intersection, unregulated by any traffic signal, could lead to the type of accident and
injury involved in this case.
In opposition to this holding, DOT argues :
Traffic signals are not intended as a mechanism to keep
individuals from engaging in criminal acts. While it may
be foreseeable to Defendant that an individual may exceed
the posted speed limit by 5 or even 10 miles per hour, it is
impossible for Defendant to design a roadway upon which
drivers may safely race one another at almost 90 miles per
hour. Traffic laws and traffic control devices are only
effective when individuals obey them.
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DOT’s focus on the criminal nature of Stasko’s actions is misplaced. All that
is required is that DOT “might have foreseen that some injury would result from [its]
act or omission, or that consequences of a generally injurious nature might have been
expected.” Riddle, 243 N.C. at 672, 91 S.E.2d at 897 (citation and quotation marks
omitted). Clearly, it was foreseeable that the failure to install traffic lights at a
dangerous and complicated intersection could result in “some injury” or
“consequences of a generally injurious nature.” Id. The Full Commission found as
fact that “the sight distance to the east on Hwy 49 from Riverpointe Drive, and the
sight distance of the intersection for vehicles travelling west on Hwy 49 was
inadequate due to a vertical curve, a hill, in the highway just before the Riverpointe
intersection.” The Full Commission also found that the expanded size of the
intersection, including the multiple travel and turning lanes, made the intersection
more dangerous than it had been prior to the DOT project. The Full Commission
further found:
With the traffic signal visible for one-half mile to a driver
traveling west on Hwy 49 at 86 mph, the presence of the
intersection and the right of way direction from the signal
would have been evident for approximately twenty-one (21)
seconds. Without the signal, the intersection became
visible at 650 feet and it would take the same driver only
approximately five (5) seconds to cover that distance. R210
One of the more foreseeable scenarios at the intersection would include a
vehicle cresting the hill in the westbound lane at a high rate of speed and impacting
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another vehicle attempting to cross over the westbound lanes of Highway 49. The
fact that Stasko was speeding, and thus breaking the law, did not render his actions
unforeseeable. Id. at 669, 672, 91 S.E.2d at 895-97 (the defendant’s actions could be
found to be a proximate cause of an accident even though concurrent tortfeasor was
operating his vehicle “at a high and unlawful rate of speed”). Speeding is likely the
most prevalent infraction committed upon our highway system. Though the State
refers repeatedly to Stasko’s actions as “drag racing,” Stasko’s reason for speeding is
immaterial. “The test of foreseeability as an element of proximate cause does not
require that the tortfeasor should have been able to foresee the injury in the precise
form in which it occurred.” Riddle, 243 N.C. at 672, 91 S.E.2d at 897. Nor do we find
Stasko’s very high rate of speed to have rendered the accident unforeseeable as a
matter of law.
The Industrial Commission was the trier of fact. “What is the proximate or a
proximate cause of an injury is ordinarily a question for [the trier of fact]. It is to be
determined as a fact from the attendant circumstances. Conflicting inferences of
causation arising from the evidence carry the case to the [trier of fact].” Short v.
Chapman, 261 N.C. 674, 680, 136 S.E.2d 40, 45 (1964) (citation omitted). Contrary
to the implication in DOT’s argument, proximate cause need not be proven to an
absolute certainty. Id. at 682, 136 S.E.2d at 47 (“absolute certainty . . . that [the
injury] proximately resulted from the wrongful act need not be shown to support an
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instruction thereon”) (citation omitted); Id. at 681, 136 S.E.2d at 46 (“if more than
one legitimate inference can be drawn from the evidence, the question of proximate
cause is to be determined by the [trier of fact]”) (citation omitted). As this Court has
stated:
Proximate cause is a cause which in natural and
continuous sequence, unbroken by any new and
independent cause, produced the plaintiff’s 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.
“[I]t is only in exceptional cases, in which reasonable minds
cannot differ as to foreseeability of injury, that a court
should decide proximate cause as a matter of law.
Proximate cause is ordinarily a question of fact for the jury,
to be solved by the exercise of good common sense in the
consideration of the evidence of each particular case.”
Gaines, 203 N.C. App. at 219, 692 S.E.2d at 122 (emphasis added) (citations omitted).
In the present case it is, of course, conceivable that the accident would have
occurred even had there been properly functioning traffic signals in the intersection.
It is conceivable that Stasko would have failed to see the light, or that he would have
ignored a red light at the peril of his life. It is also conceivable, and much more likely,
that Stasko would have seen a red light and stopped or slowed, avoiding the accident.
As DOT itself argues, “had [Stasko] simply reduced his speed, . . . Furr would have
had additional time to move out of the path of [Stasko’s] vehicle.” Had there been a
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HOLT V. N.C. DOT
Opinion of the Court
properly functioning traffic signal, Stasko would have had approximately sixteen
additional seconds to notice the intersection and initiate deceleration. It was the
province of the Full Commission, as trier of fact, to make a determination based on
the facts, law, and common sense, concerning whether Stasko’s high-speed racing
behavior indicated that he would have completely ignored a properly functioning
traffic signal. Id. The Full Commission found that it did not.
Further, had the signal been red for traffic on Highway 49, Furr would not
have needed to stop in the intersection to wait for eastbound Highway 49 traffic to
clear. Had the signal been green for Highway 49 traffic, Furr would have been safely
stopped on Riverpointe Drive awaiting the signal change. We find the Full
Commission’s finding that DOT’s breach of duty was a proximate cause of the
accident to be supported by the evidence, and to have been “the exercise of good
common sense in the consideration of the evidence [in this] case.” Id. (citation
omitted).
The dissenting opinion states that “[t]he determinative factor is not whether
Stasko would have obeyed or ignored the traffic signal but whether the lack of a traffic
signal was the proximate cause of the collision.” It is true that the relevant issue is
whether “the lack of a traffic signal was [a] proximate cause of the collision.”
However, as the existence of proximate cause is, in this case, a question of fact, it is
appropriately “an inference of fact to be drawn from other facts and circumstances.”
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HOLT V. N.C. DOT
Opinion of the Court
Hairston v. Alexander Tank & Equip. Co., 310 N.C. 227, 234, 311 S.E.2d 559, 566
(1984). There is a difference between inference and mere speculation or conjecture,
and Mr. Marceau was qualified to give his opinion that, based on the facts and
circumstances before him, the accident would not have occurred absent DOT’s breach
of its duty.
DOT argues that the “Industrial Commission has essentially concluded that
[DOT] is, and shall be, strictly liable for virtually any accident that occurs on State
roadways.” Our decision in no manner leads to that result. It is not only foreseeable,
but inevitable, that vehicles will speed on the roadways managed and maintained by
DOT. We cannot agree with the deputy commissioner and the dissenting opinion that
it is only foreseeable that motorists will speed five to ten miles per hour over the
posted limit, when it is common knowledge that violations for speeds at or exceeding
Stasko’s in this instance are, sadly, too common. The dissenting opinion poses several
“what if” questions:
Had there been a properly functioning traffic signal,
neither this Court nor any expert in North Carolina can
say that, based solely on that premise, Stasko would have
had sixteen additional seconds to initiate deceleration.
What if the traffic signal, conceivably visible one[-]half
miles from the intersection, or for twenty-one seconds
based on Stasko’s speed, was green? Would Stasko have
initiated deceleration? What if Stasko was looking behind
for Atkinson’s car and did not notice that there was a traffic
signal ahead? What if the traffic signal turned yellow at
the moment Stasko was cresting the hill, around 650 feet
from the intersection? What if Stasko did not decelerate
- 20 -
HOLT V. N.C. DOT
Opinion of the Court
for the yellow light and consequently drove through a
“fresh” red light, and Furr immediately went through the
green light on Riverpointe Drive, and their cars collided in
the intersection? Would DOT be liable based on the incline
of the hill, lack of sight distance, or roadway design?
As an initial matter, because there was competent evidence in support of both
the finding that the traffic signal would have been visible for approximately one-half
mile on Stasko’s approach, and the finding that the signal would, based on Stasko’s
speed, have alerted Stasko to the presence of the intersection approximately twenty-
one seconds before he would have entered the intersection, we must operate based
upon the assumption that these facts are true. Simmons, 171 N.C. App. at 727-28,
615 S.E.2d at 72. It is not only a red traffic signal that alerts a driver to the presence
of an upcoming intersection, and thus warns that driver of potential traffic entering
the intersection, but also the mere presence of the signal which alerts drivers to the
fact of the approaching intersection. It is a reasonable inference that a driver will
prepare for the potential need to stop even when approaching a green signal, as a
green signal will always turn from green to yellow to red and back again. A green
signal that is a half-mile distant has a very reasonable chance of changing to red
before a driver reaches the intersection it governs, even when that driver is driving
at a very high rate of speed. It is highly unlikely that Stasko would have been looking
behind him, in search of Atkinson or for any other reason, for twenty-one seconds. It
is also highly unlikely Stasko would have taken his eyes off the road in front of him
- 21 -
HOLT V. N.C. DOT
Opinion of the Court
for sixteen or even five seconds.2 And, as stated above, had a properly functioning
signal been green for Stasko, it would have been red for Furr, and she would not have
entered the intersection. It is of course possible that Stasko would have still collided
with Furr even had there been a properly functioning traffic signal. However,
Plaintiffs’ burden is not so high as to require they prove to an absolute certainty that
the accident would not have occurred absent DOT’s breach of its duty. As correctly
noted by the dissenting opinion, “Proximate cause is an inference of fact to be drawn
from other facts and circumstances.” Hairston, 310 N.C. at234, 311 S.E.2d at 566.
Though it is possible that acts accompanying Stasko’s “racing” behavior, other than
speeding, played a role in the accident, we cannot say that this potentiality breaks
the chain of proximate cause as a matter of law. The Full Commission considered all
the facts surrounding Stasko’s racing behavior, but still inferred proximate cause
from the totality of the facts and circumstances before it. This was the Full
Commission’s province as the trier of fact, not ours.
Not every intersection requires traffic signals. It is the duty of DOT to take
reasonable care in identifying those intersections that do require traffic signals, for
2 The Full Commission found as fact: “With the traffic signal visible for one-half mile to a driver
traveling west on Hwy 49 at 86 mph, the presence of the intersection and the right of way direction
from the signal would have been evident for approximately twenty-one (21) seconds. Without the
signal, the intersection became visible at 650 feet and it would take the same driver only
approximately five (5) seconds to cover that distance.” The addition of a traffic signal would have
provided Stasko an additional sixteen seconds in which to become aware of the approaching
intersection.
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HOLT V. N.C. DOT
Opinion of the Court
both the efficient regulation of traffic and the safety of motorists and pedestrians. If
an accident occurs at an intersection not requiring a traffic signal, DOT will not be
held liable for failing to erect a traffic signal, even where a signal would have
prevented the accident. That is because DOT cannot be held liable where it has
breached no duty. Where DOT has installed and maintained properly functioning
traffic signals, it will not be found liable when accidents like the one before us occur;
again, because it will have breached no duty with regard to the traffic signal. In
answer to the dissenting opinion’s query on this matter, DOT could be held liable for
an accident caused by “a driver who is texting and approaching an unregulated
intersection” if DOT had a duty to install a traffic signal at that intersection, DOT
breached that duty, and the breach of that duty was found by the trier of fact to be a
proximate cause of the accident. This is true even if the driver’s texting was a
concurrent proximate cause. DOT could not be held liable if the trier of fact rationally
determined that the lack of a traffic signal was not a proximate cause of the accident,
or that the texting activity in that situation was such as to break the causal link and
was therefore the sole proximate cause of the resulting accident. When there is a
conflict in the evidence, or evidence may reasonably be interpreted in differing ways,
it is generally the province of the trier of fact to make the proximate cause
determination, and that is what has happened in this case. The dissenting opinion
places its focus on what it determines was the unforeseeability of Stasko’s egregious
- 23 -
HOLT V. N.C. DOT
Opinion of the Court
conduct. However, in this case, the relevant issue was whether it was foreseeable
that absent a functioning traffic signal, a speeding motorist would crest the hill
approaching the intersection and collide with another motorist entering the
intersection from another direction.
DOT and the dissenting opinion rely on Tise. We simply note that in Tise our
Supreme Court held:
In the instant case, the police officers responding to the
initial call to the construction site investigated and acted
to prevent the criminal acts of unknown third parties.
While the officers were called to the site to investigate
possible tampering with the grader equipment, Tise’s
injuries caused by the criminal acts of third parties in their
unauthorized operation of the grader could not have been
foreseeable from the officers’ acts of attempting to disable
the grader. The criminal acts in this case were an
intervening cause that relieved the City of any actionable
negligence by cutting off the proximate cause flowing from
the acts of the agents of the City in attempting to disable
the grader. This superseding cause was a new cause, which
intervened between the original negligent act of the City
and the injury ultimately suffered by Tise. The third party
criminal acts in this case broke the chain of causation set
in motion by the police officers.
Tise, 345 N.C. at 461-62, 480 S.E.2d at 681. Our Supreme Court reached this holding
by reasoning that even if the police were negligent in failing to properly secure a
construction site subsequent to having received a call pertaining to alleged tampering
with construction equipment, the result of that negligence, an officer who
subsequently returned to the scene and was crushed to death by stolen construction
- 24 -
HOLT V. N.C. DOT
Opinion of the Court
equipment as he sat in his cruiser on a nearby street, was not foreseeable. These
facts are in stark contrast to a situation where a speeding automobile enters an
intersection and collides with another automobile. The first fact pattern borders on
the bizarre; the second is all too common.
Further, not all accidents occurring at intersections where DOT has breached
its duty to install traffic signals will lead to DOT liability, because proximate cause
must first be proved. If a properly functioning traffic signal simply could not have
prevented an accident, the lack of a traffic signal cannot be a proximate cause of that
accident as a matter of law.3 If there is some question concerning whether a properly
functioning traffic signal could have prevented an accident in an intersection in which
DOT breached its duty to install same, the issue of proximate cause is one of fact to
be determined by the trier of fact. If, for example, Stasko had been ignoring red
lights prior to the collision in the intersection, it is quite possible the Full
Commission, and this Court, would have reached a different decision. However, those
are not the facts before us. Our holding stands for the unremarkable proposition that
DOT is liable for its breaches of duty when those breaches result in the kind of injury
the intended prevention of which created the duty in the first place.
3 For example, proximate cause in the present case could not be proven based upon the lack of
a traffic signal if the accident resulted from Stasko suffering a medical emergency and losing
consciousness instead of Stasko speeding. This hypothetical presumes the medical emergency
occurred at a time before a properly functioning traffic signal would have had an opportunity to
regulate Stasko’s driving.
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HOLT V. N.C. DOT
Opinion of the Court
The dissenting opinion contends that our holding “will lead to an impractical
standard with far-reaching consequences.” We disagree. We have simply applied
well-established standards to the facts before us. On the other hand, it is difficult to
imagine under what circumstances DOT could be held liable for breaching its duty to
install traffic signals in dangerous intersections were we to adopt the reasoning of
the dissenting opinion. This is so because it would rarely, if ever, be possible to prove
that the installation of a properly functioning traffic signal would have, without any
doubt, prevented an accident from occurring in any particular intersection. There
are infinite potential variables all acting together to produce any singular result.
Were the trier of fact required to rule out with absolute certainty the possibility that
any of these potential variables were the actual sole proximate cause of an accident,
it is difficult to see how a plaintiff could ever sufficiently prove the proximate cause
necessary to make a case for negligence. However, under our law, plaintiffs are not
saddled with this impossible burden. Because we find there was competent evidence
supporting the Full Commission’s findings of fact, and because these findings of fact
were sufficient to support its conclusions of law and decision, we must defer to the
Full Commission’s determinations of credibility and the weight to be given the
evidence. Young, 353 N.C. at 230, 538 S.E.2d at 914.
AFFIRMED.
Judge DAVIS concurs.
- 26 -
HOLT V. N.C. DOT
Opinion of the Court
Judge ELMORE dissents with separate opinion.
-2-
No. COA15-445 – Holt v. NCDOT
ELMORE, Judge, dissenting.
I respectfully disagree with the majority’s conclusion that DOT’s breach of duty
was a proximate cause of the accident. Although the majority rejects DOT’s challenge
to certain findings of fact by summarily finding competent record evidence to support
them, I agree with DOT that competent evidence is lacking.
I would reverse the Commission’s decision for two reasons: (1) DOT’s
breach of duty was not an actual cause of plaintiffs’ injuries; and (2) even if actual
cause was established, I would find that the intentional criminal acts of Stasko and
Atkinson could not have been reasonably foreseen by DOT and, therefore, constitute
an independent, intervening cause absolving DOT of liability.
Pursuant to N.C. Gen. Stat. § 143-293, a party may appeal from the decision
of the Commission to the Court of Appeals. “Such appeal shall be 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
competent evidence to support them.” N.C. Gen. Stat. § 143-293 (2013). “Competent
evidence is evidence ‘that a reasonable mind might accept as adequate to support the
finding.’ ” In re Adams, 204 N.C. App. 318, 321, 693 S.E.2d 705, 708 (2010) (quoting
Eley v. Mid/East Acceptance Corp. of N.C., 171 N.C. App. 368, 369, 614 S.E.2d 555,
558 (2005)). “We review the Full Commission’s conclusions of law de novo.” Holloway
v. N.C. Dep’t of Crime Control & Pub. Safety, 197 N.C. App. 165, 169, 676 S.E.2d 573,
576 (2009) (citations omitted).
HOLT V. NCDOT
ELMORE, J., dissenting
To satisfy the causation element of a negligence claim, the claimant “must
prove that defendant’s action was both the cause-in-fact (actual cause) and the
proximate cause (legal cause)[.]” State v. Lane, 115 N.C. App. 25, 28, 444 S.E.2d 233,
235 (1994). “If a plaintiff is unable to show a cause-in-fact nexus between the
defendant’s conduct and any harm, our courts need not consider the separate
proximate cause issue of foreseeability.” Hawkins v. Emergency Med. Physicians, ___
N.C. App. ___, ___, 770 S.E.2d 159, 165 (Apr. 7, 2015) (No. COA14-877). “The
standard for factual causation . . . is familiarly referred to as the ‘but-for’ test, as well
as a sine qua non test. Both express the same concept: an act is a factual cause of an
outcome if, in the absence of the act, the outcome would not have occurred.”
Restatement (Third) of Torts: Phys. & Emot. Harm § 26 (2010).
“Proximate cause is a cause which in natural and continuous sequence,
unbroken by any new and independent cause, produced the plaintiff’s injuries, and
without which the injuries would not have occurred[.]” Lord v. Beerman, 191 N.C.
App. 290, 294, 664 S.E.2d 331, 334 (2008) (quoting Hairston v. Alexander Tank &
Equip. Co., 310 N.C. 227, 233, 311 S.E.2d 559, 565 (1984)) (quotations omitted).
“[E]vidence is insufficient if it merely speculates that a causal connection is possible.”
Id. at 295, 664 S.E.2d at 335. “An inference of negligence cannot rest on conjecture
or surmise. . . . This is necessarily so because an inference is a permissible conclusion
drawn by reason from a premise established by proof.” Sowers v. Marley, 235 N.C.
2
 HOLT V. NCDOT
ELMORE, J., dissenting
607, 609, 70 S.E.2d 670, 672 (1952) (citations omitted). “Proximate cause is an
inference of fact to be drawn from other facts and circumstances.” Hairston, 310 N.C.
at 234, 311 S.E.2d at 566. “[T]he general rule of law is that if between the negligence
and the injury there is the intervening crime or wilful and malicious act of a third
person producing the injury but that such was not intended by the defendant, and
could not have been reasonably foreseen by it, the causal chain between the original
negligence and accident is broken.” Ward v. R.R., 206 N.C. 530, 532, 174 S.E. 443,
444 (1934) (citations and quotations omitted).
The majority concludes that there is competent evidence to support finding of
fact number twenty, which states, “Mr. Marceau testified that in his expert opinion,
and the Commission finds, that had the Riverpointe intersection been properly
signalized, the crash on 4 April 2009 would not have occurred. Mr. Marceau based
his opinion on the lack of visibility of the Riverpoint intersection and the driving
behavior of Mr. Stasko prior to the crash.” (emphasis added.) I disagree. The
Commission’s finding, and this Court’s approval, that but for DOT’s failure to install
a traffic signal, this collision would not have occurred is speculative and is not
supported by any competent evidence. DOT’s omission was not the actual cause of
plaintiffs’ injuries.
Here, Mr. Marceau, a forensic traffic engineer, testified “as an expert in the
area of civil engineering, traffic crash investigation, traffic crash reconstruction, and
3
HOLT V. NCDOT
ELMORE, J., dissenting
human factors as it pertains to automobile accident investigation.” Yet he did not
base his testimony on scientific, technical, or other specialized knowledge that would
assist the trier of fact to understand the evidence. See N.C. Gen. Stat. § 8C-1, Rule
702 (2013). Moreover, his testimony was not based upon sufficient facts or data, and
it was not the product of reliable principles and methods that were reliably applied
to the facts of this case. See id. Instead, Mr. Marceau testified as follows:
Q. [W]hat opinions and conclusions did you reach?
A. My—my conclusions were that this traffic signal,
it should’ve been here a long time before this crash ever
happened, that—and further, had the traffic signal been in
place before the crash, that the crash would have been
prevented. Had the traffic signal been in place and been
operating, Ms. Furr would’ve received a green light, and
pulled forward on a green light, and Mr. Stasko would’ve
stopped for a yellow or a red, and the crash wouldn’t have
occurred.
Q. How do you know that Mr. Stasko would’ve—
what—what in your research—what in your investigation
would lead you to the conclusion that Mr. Stasko would
have stopped at that stoplight versus running through the
stoplight at the speed he was going?
A. Several things during my investigation. Mr.
Stasko and—and Ms. Atkinson had both stopped at
stoplights prior to this intersection. There was no history
of them running stoplights. They’d been stopping at—at
traffic signals, and I—I think I heard the detective testify
this morning the kids in the car were horsing around, and
goofing off, communicating junk with each other, and—and
they were stopping at all the traffic signals. I—I—I
didn’t—I never had a doubt that they would’ve stopped at
this traffic signal.
4
HOLT V. NCDOT
ELMORE, J., dissenting
On cross-examination, regarding Mr. Marceau’s opinion above, counsel for
DOT asked, “But that’s not based on any scientific evaluation, is it?” Mr. Marceau
responded, “It’s based on what I’ve read from affidavit, and testimony, and from
hearing the officer testify.”
In Young v. Hickory Business Furniture, our Supreme Court explained that
when “expert opinion testimony is based merely upon speculation and conjecture, it
can be of no more value than that of a layman’s opinion. . . . Indeed, this Court has
specifically held that ‘an expert is not competent to testify as to a causal relation
which rests upon mere speculation or possibility.’ ” 353 N.C. 227, 230, 538 S.E.2d
912, 915 (2000) (quoting Dean v. Coach Co., 287 N.C. 515, 522, 215 S.E.2d 89, 94
(1975)).
Like the expert witness in Young, Mr. Marceau’s “responses were forthright
and candid, and demonstrated an opinion based solely on supposition and conjecture.”
Young, 353 N.C. at 233, 538 S.E.2d at 916–17. In Young, our Supreme Court held
that such evidence was incompetent and insufficient to support the Industrial
Commission’s findings of fact. Id. at 233, 538 S.E.2d at 917. Likewise, here the
evidence was incompetent to support the Commission’s finding that, had the
intersection been properly signalized, the crash would not have occurred.
John Flanagan, who testified as an expert in accident reconstruction and
engineering, performed several calculations about the effect of different speeds
5
HOLT V. NCDOT
ELMORE, J., dissenting
combined with perception/reaction time on the total stopping distance. In his opinion,
he stated that it would be possible for someone driving at a speed of eighty-six miles
per hour to stop his vehicle before entering the intersection, that he did not know why
Stasko did not stop, and that the onset of a driver’s perception/reaction time would
be delayed if he was not being attentive to what is going in front of him. Detective
Jesse Wood also prepared a collision reconstruction summary and testified to his
findings, which incorporated drag factor, deceleration rate, perception/reaction time,
and stopping distance. Detective Wood found “at 86 miles per hour, using a
deceleration rate of .71 that Stasko could have brought his vehicle to a stop in 536
feet[,]” which is short of the estimated sight distance of 586 to 650 feet from the crest
of the hill to the intersection. Mr. Marceau agreed that, based on Detective Wood’s
calculations, if the driver had a one-and-a-half second perception/reaction time,
mathematically, the driver could have stopped prior to the collision. Mr. Marceau
noted, though, that “in the real world situation where we have multiple things to pay
attention to,” the perception and reaction time may be longer, and one-and-a-half
seconds is not appropriate. He stated, “I think even my numbers show that if he had
acted faster than, I think I said 2.7 or 2.8 seconds, and he slammed on his brakes, he
could’ve avoided the crash, and he could’ve skidded through a stop, and brought his
car to a stop.” As the majority correctly points out, the Commission is the trier of fact
6
HOLT V. NCDOT
ELMORE, J., dissenting
and may choose how much weight to place on testimony. Nevertheless, the evidence
must still be competent to support the Commission’s findings.
Regarding proximate cause, the majority concludes that there is competent
evidence to support finding of fact number twenty-four, which states,
24. Given defendant’s stipulation that a signal was
needed, the lack of sight distance to and from the
intersection, the speed limit of the roadway, the size of the
intersection, and the number of previous similar accidents
at this intersection, the Commission finds that the accident
that resulted in the deaths of Cynthia Furr, McAllister
Furr Price and Hunter Holt was a foreseeable consequence
of defendant’s stipulated breach of duty in failing to install
a traffic signal at that intersection.
In attempting to show why the Commission’s decision is supported by
competent evidence, the majority states,
Had there been a properly functioning traffic signal,
Stasko would have had approximately sixteen additional
seconds to notice the intersection and initiate deceleration.
It was the province of the Commission, as trier of fact, to
make a determination based on the facts, law, and common
sense, concerning whether Stasko’s high-speed racing
behavior indicated that he would have completely ignored
a properly functioning traffic signal. . . .
Further, had the signal been red for traffic on
Highway 49, Furr would not have needed to stop in the
intersection to wait for eastbound Highway 49 traffic to
clear. Had the signal been green for Highway 49 traffic,
Furr would have been safely stopped on Riverpointe Drive
awaiting the signal change. We find the Commission’s
finding that DOT’s breach of duty was a proximate cause
of the accident to be supported by the evidence[.]
7
HOLT V. NCDOT
ELMORE, J., dissenting
The determinative factor is not whether Stasko would have obeyed or ignored
the traffic signal but whether the lack of a traffic signal was the proximate cause of
the collision. As the Deputy Commissioner found, whether “it is reasonable to assume
that [Stasko] would have slowed and prepared to stop because of the signal” is
“speculative and not germane to the issue of foreseeability.”
Had there been a properly functioning traffic signal, neither this Court nor any
expert in North Carolina can say that, based solely on that premise, Stasko would
have had sixteen additional seconds to initiate deceleration. What if the traffic
signal, conceivably visible one-and-a-half miles from the intersection, or for twenty-
one seconds based on Stasko’s speed, was green? Would Stasko have initiated
deceleration? What if Stasko was looking behind for Atkinson’s car and did not notice
that there was a traffic signal ahead? What if the traffic signal turned yellow at the
moment Stasko was cresting the hill, around 650 feet from the intersection? What if
Stasko did not decelerate for the yellow light and consequently drove through a
“fresh” red light,4 and Furr immediately drove through the green light on Riverpointe
Drive, and their cars collided in the intersection? Would DOT be liable based on the
incline of the hill, lack of sight distance, or roadway design?
Mr. Marceau testified, “When people run red lights, it happens—I’ve—I’ve
actually looked at thousands of—studied numbers on this. It happens in several
4 Mr. Marceau testified that the clearance time on this intersection would likely be two
seconds.
8
HOLT V. NCDOT
ELMORE, J., dissenting
different batches, but it’s typically portions of a second or a second after the light has
turned red.” He further stated, “They’re—they’re distracted, not paying attention,
whatever. It’s not—we just—we just—unless someone’s drunk, or high, or something
like that, you know, impaired, we just don’t have people just running through red
lights out in the middle of nowhere.” Significantly, the majority admits, “If a properly
functioning traffic signal simply could not have prevented an accident, the lack of a
traffic signal cannot be a proximate cause of that accident as a matter of law.” I
contend that is the precise scenario in front of us. No evidence shows that such
omission was a cause in fact of the injuries, much less a proximate cause. Gillespie
v. Coffey, 86 N.C. App. 97, 100, 356 S.E.2d 376, 378 (1987).
The findings indicate that Stasko did not intentionally hit the Furr car and
that Stasko did not engage his brakes. The findings do not indicate that there was a
vehicle in the right-hand lane preventing Stasko from swerving right. The majority
can speculate that “it is, of course, conceivable that the accident would have occurred
even had there been properly functioning traffic signals in the intersection. It is
conceivable that Stasko would have failed to see the light, or that he would have
ignored a red light at the peril of his life. It is also conceivable, and much more likely,
that Stasko would have seen a red light and stopped or slowed, avoiding the accident.”
But that is all we can do—speculate. And that is all that the Commission did.
I also disagree with the majority’s holding “that it was reasonably foreseeable
9
HOLT V. NCDOT
ELMORE, J., dissenting
that a vehicle speeding toward the intersection, unregulated by any traffic signal,
could lead to the type of accident and injury involved in this case.” Although the
majority maintains that DOT’s focus on the criminal nature of Stasko’s actions is
misplaced and the reason for his speeding is immaterial, the entirety of Stasko and
Atkinson’s conduct must be analyzed in determining foreseeability. See Ramsbottom
v. R.R., 138 N.C. 39, 41, 50 S.E. 448, 449 (1905) (explaining that proximate cause is
established if “any man of ordinary prudence could have foreseen that such a result
was probable under all the facts as they existed”). The majority states, “The fact that
Stasko was speeding, and thus breaking the law, did not render his actions
unforeseeable.”
Here, however, as the Deputy Commissioner concluded, “foreseeable acts of
speeding are those instances where a driver is travelling five to ten miles an hour
over the limit, as opposed to more than 30 miles over the posted speed.” As explained
below, Stasko was not merely speeding. Plaintiff’s expert, Mr. Marceau, testified to
the following:
A. [Marceau] We—we know that the Atkinson
vehicle was behind [Stasko] and to his right. We’re not
exactly sure where it was.
Q. And could that impact also his—his—the human
factors part—his though[t] processes as to whether
swerving is the right idea to do, or braking is the right idea,
or a combination of the two is the right thing to do?
A. [Marceau] Absolutely. He’s—he’s been jockeying
10
HOLT V. NCDOT
ELMORE, J., dissenting
positions with this other vehicle, changing lanes, forward,
backward, around each other for the last one-point—well,
1.5 miles from the traffic signal at Shopton. So he has a
moving target around him, much like a pilot flying near
another plane. You have to make sure where the other
plane is before you change your course, or a (unintelligible),
or anybody else in motion.
Stasko was convicted of three counts of involuntary manslaughter, and
Atkinson pled guilty to three counts of involuntary manslaughter based on their
involvement. The facts establish that Stasko was not only speeding, but racing—
“jockeying positions” with a “moving target.” Although some speeding is foreseeable,
Stasko’s erratic and hazardous conduct was not reasonably foreseeable. I note that
the law “fix[es] [defendant] with notice of the exigencies of traffic, and he must take
into account the prevalence of that ‘occasional negligence which is one of the incidents
of human life.’ ” Hairston, 310 N.C. at 234, 311 S.E.2d at 565 (quoting Beanblossom
v. Thomas, 266 N.C. 181, 146 S.E.2d 36 (1966); citing Restatement (Second) of Torts
§ 447, comment c (1965)). However, the evidence shows that this was not a simple
case of occasional negligence. As the Deputy Commissioner concluded, “it is
unreasonable to impute upon [DOT] the duty to protect the general public from any
and all intentional criminal acts. It is not possible, nor is it feasible.”
In Westbrook v. Cobb, the plaintiff argued that “it need not be shown that
defendant could foresee what would happen, nor is it relevant that the eventual
consequences . . . were improbable. Rather, all plaintiff needs to show is that
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HOLT V. NCDOT
ELMORE, J., dissenting
defendant set in motion a chain of circumstances that led ultimately to plaintiff’s
injury.” 105 N.C. App. 64, 68, 411 S.E.2d 651, 654 (1992). This Court stated that the
plaintiff’s injury must nonetheless be “the natural result of a continuous sequence of
actions set into motion by defendant’s initial act[.]” Id. at 69, 411 S.E.2d at 654. We
noted, “[P]roximate cause is to be determined on the facts of each case upon mixed
considerations of logic, common sense, justice, policy and precedent. [I]t is
inconceivable that any defendant should be held liable to infinity for all the
consequences which flow from his act, some boundary must be set.” Id. at 68–69, 411
S.E.2d at 654 (quoting Sutton v. Duke, 277 N.C. 94, 108, 176 S.E.2d 161, 169 (1970))
(quotations omitted).
As discussed at the oral argument, if Stasko had been breaking other laws,
such as texting or driving while intoxicated, would plaintiffs still argue that the lack
of a traffic signal was the proximate cause of the collision? Conceivably, based on the
majority’s logic, a plaintiff may now argue that a driver who is texting and
approaching an unregulated intersection would have been able to avoid a collision if
a traffic signal was installed because the driver likely would have had increased sight
distance and would have stopped texting in time to stop at a red light. The majority’s
opinion leaves DOT susceptible to liability that it should not be forced to incur.
As I conclude that there is no competent evidence to support the Commission’s
findings of fact on foreseeability and proximate cause, I similarly conclude that the
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HOLT V. NCDOT
ELMORE, J., dissenting
conclusions of law listed below are not supported by any other findings of fact.
The Commission entered the following conclusions of law:
2. The issue before the Commission is whether the
intervening acts of negligence by Mr. Stasko and Ms.
Atkinson are such that they relieve defendant of its
liability for its negligence. When considering intervening
acts of negligence, the North Carolina Court of Appeals
explained, “[t]he first defendant is not relieved of liability
unless the second independent act of negligence could not
reasonably have been foreseen.” Hester v. Miller, 41 N.C.
App. 509, 513, 255 S.E.2d 318, 321 (1979) (citation
omitted). The court explained further, “[t]he foreseeability
standard should not be strictly applied. It is not necessary
that the whole sequence of events be foreseen, only that
some injury would occur.” Id.
....
4. The Commission concludes that the actions of Mr.
Stasko and Ms. Atkinson were reasonably foreseeable by
defendant. “Experience assures us that [people] do in fact
frequently act carelessly, and when such action is
foreseeable as an intervening agency, it will not relieve the
defendant from responsibility for [its] antecedent
misconduct.” Murray v. Atl. Coast Line R. Co., 218 N.C.
392, 411, 11 S.E.2d 326, 339 (1940) (citation omitted).
5. The Commission concludes that defendant’s
stipulated breach of its duty to install a traffic signal at the
Riverpointe intersection was a proximate cause of the
accident that resulted in the deaths of Cynthia Furr,
McAllister Furr Price and Hunter Holt. The Commission
concludes that the intervening negligence of Mr. Stasko
and Ms. Atkinson was also a proximate cause of the
accident, but not the sole proximate cause. As such,
defendant is not insulated from liability for its negligence.
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HOLT V. NCDOT
ELMORE, J., dissenting
I note that the quote in conclusion of law number four represents the
opinion of the authors of Harper’s Law of Torts and Justice Seawell, dissenting, not
our Supreme Court. In conclusion of law number two, the Commission states that
the issue is whether the intervening acts of negligence by Stasko and Atkinson relieve
DOT of its liability for negligence. However, before determining whether DOT is
relieved of its liability, it must first be determined that DOT is liable. In Hester,
quoted by the Commission in conclusions of law two and three, this Court stated,
In cases involving rearend collisions between a
vehicle slowing or stopping on the road without proper
warning signals, and following vehicles, the test most often
employed by North Carolina courts is foreseeability. The
first defendant is not relieved of liability unless the second
independent act of negligence could not reasonably have
been foreseen. The foreseeability standard should not be
strictly applied. It is not necessary that the whole sequence
of events be foreseen, only that some injury would occur.
Hester v. Miller, 41 N.C. App. 509, 513, 255 S.E.2d 318, 321 (1979) (internal
citations omitted). I disagree with the application of that foreseeability analysis here.
Hester dealt with multiple defendants who were involved in a chain-reaction vehicle
collision. Id. at 512, 255 S.E.2d at 320. I believe the decision in Hester is factually
distinguishable, and the discussion regarding foreseeability generally in an ordinary
negligence case differs from that of foreseeability involving an intervening actor. I
find the analysis in Tise v. Yates Construction Company, Inc., relevant here.
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HOLT V. NCDOT
ELMORE, J., dissenting
In Tise, cited by DOT, police officers responded to a call that unknown persons
were tampering with equipment at a construction site. 345 N.C. 456, 457, 480 S.E.2d
677, 678 (1997). When they arrived at the site, the officers did not see any suspects
and did not have any information regarding who to contact about the security of the
equipment, so they left. Id. Later, four individuals went to the construction site and
one of them drove a grader onto the roadway. Id. One of the officers was sitting in
his parked patrol car on the roadway and was crushed by the grader. Id. The owner
of the construction company claimed that the City, through its police department,
negligently handled the initial call, which was a proximate cause of the officer’s
death. Id. at 459, 480 S.E.2d at 679. Our Supreme Court concluded that the officer’s
“injuries caused by the criminal acts of third parties . . . could not have been
foreseeable from the officers’ acts of attempting to disable the grader.” Id. at 461, 480
S.E.2d at 681. It further stated, “The criminal acts in this case were an intervening
cause that relieved the City of any actionable negligence by cutting off the proximate
cause flowing from the acts of the agents of the City in attempting to disable the
grader.” Id. “This superseding cause was a new cause, which intervened between
the original negligent act of the City and the injury ultimately suffered[.]” Id.
Here, as in Tise, the third-party criminal acts broke the chain of causation set
in motion by DOT’s breached duty. Stasko’s decision to race another vehicle at eighty-
six miles per hour on a residential highway where the speed limit was fifty-five miles
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HOLT V. NCDOT
ELMORE, J., dissenting
per hour and where both drivers had children in their vehicles cut off the proximate
cause flowing from DOT’s omission.
The majority, in discounting the relevance of Tise, relies on Riddle v. Artis. In
Riddle, our Supreme Court stated, “ ‘The test by which the negligent conduct of one
is to be insulated as a matter of law by the independent negligent act of another, is
reasonable unforeseeability on the part of the original actor of the subsequent
intervening act and resultant injury.’ ” 243 N.C. at 671, 91 S.E.2d at 896–97 (quoting
Butner v. Spease, 217 N.C. 82, 6 S.E.2d 808 (1940); citing Beach v. Patton, 208 N.C.
134, 179 S.E. 446 (1935)).
In Beach, Riddick was driving on a highway and was involved in a collision.
Beach, 208 N.C. at 135, 179 S.E. at 446. For some fifteen minutes after the collision,
Riddick’s car remained on the highway. Id. Patton, who was driving at a negligent
rate of speed, was forced to go around Riddick’s car to avoid hitting it. Id. Patton’s
car fatally struck Beach, who was standing on the shoulder on the opposite of the
highway. Id. Beach’s administrator claimed that Riddick’s negligent act of leaving
his vehicle on the highway proximately caused Beach’s death. Id. at 135, 179 S.E. at
446–47. Our Supreme Court stated, to hold that the defendant owed a duty to the
plaintiff
to foresee that a third person would operate a car in
such a negligent manner as to be compelled to drive out on
to the shoulder of the highway in order to avoid a collision
with a car parked on the opposite side thereof, and thereby
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HOLT V. NCDOT
ELMORE, J., dissenting
strike a person standing on the shoulder, would not only
“practically stretch foresight into omniscience,” Gant v.
Gant, 197 N.C. 164, 148 S.E. 34 (1929), but would, in effect,
require the anticipation of “whatsoever shall come to pass.”
We apprehend that the legal principles by which
individuals are held liable for their negligent acts impose
no such far-seeing and all-inclusive duty.
Id. at 136, 179 S.E. at 447.
I think most are in agreement that DOT can reasonably foresee that a driver
traveling on its roadways might speed. However, to say that DOT could reasonably
foresee that two drivers would engage in a road race, one vehicle would collide with
another vehicle at eighty-six miles per hour on a fifty-five-miles-per-hour roadway,
the impact causing the second vehicle “to become airborne and flip several times
before landing in the median area” would also “require the anticipation of whatsoever
shall come to pass.” Beach, 208 N.C. at 136, 179 S.E. at 447. To diminish Stasko’s
actions to mere speeding and label them reasonably foreseeable is unfounded. See
Yancey v. Lea, 354 N.C. 48, 53–54, 550 S.E.2d 155, 158 (2001) (noting that gross
negligence has been found where “defendant is driving at excessive speeds” or
“defendant is engaged in a racing competition”). Affirming the Commission’s decision
will lead to an impracticable standard with far-reaching consequences.
Accordingly, I respectfully dissent from the majority’s opinion. The decision of
the Full Commission should be reversed, and this case should be remanded to the
Full Commission with instruction to affirm the Deputy Commissioner’s decision.
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HOLT V. NCDOT
ELMORE, J., dissenting
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