Baldwin v. GTE South, Inc.

428 S.E.2d 857 (1993) 110 N.C. App. 54

Laura G. BALDWIN, Plaintiff,
v.
GTE SOUTH, INCORPORATED, Defendant.

No. 9214SC331.

Court of Appeals of North Carolina.

May 4, 1993.

Kirby, Wallace, Creech, Sarda & Zaytoun by Robert E. Zaytoun and Patricia L. Wilson, Raleigh, for plaintiff-appellee.

Faison, Fletcher, Barber & Gillespie by O. William Faison and Gary R. Poole, Durham, for defendant-appellant.

WELLS, Judge.

On 1 October 1991, the trial court ruled, in limine, that a Department of Transportation regulation prohibiting placement of commercial telephone booths in rights-ofway was a safety regulation. The court also ruled that pedestrians using such installations are within the class of persons protected by the regulation. At trial, GTE South moved for a directed verdict both at the end of plaintiff's evidence and at the close of all evidence. Both motions were denied. During its charge, the court instructed the jury on the issue of negligence per se.

Although defendant sets forth seven individual assignments of error for our review, the sole issue before us is whether the trial court erred in denying defendant's motion for directed verdict. Specifically, defendant contends the trial court erred in determining (a) that the Department of Transportation's (DOT) policy prohibiting telephone booths on highway rights-of-way is a public safety regulation, and (b) that plaintiff, a pedestrian using the telephone booth, is in the class of persons the regulation was designed to protect, making a violation of such regulation negligence per se.

The DOT has adopted the following regulation pursuant to its statutory authority under G.S. § 136-18(10):

TELEPHONE BOOTHS

Telephone pay-station booths or other commercial telephone installations are not permitted on highway rights-of-way, except in rest areas or truck weigh stations.

Plaintiff contends that this regulation is aimed at protecting pedestrians using telephone booths from injury caused by vehicular traffic. We disagree.

It is well settled by our courts that violation of a public safety statute is negligence per se. Goodman v. Wenco Foods, Inc., 333 N.C. 1, 423 S.E.2d 444 (1992). "A member of a class protected by a public safety statute has a claim against anyone who violates such a statute when the violation is a proximate cause of injury to the claimant." Hart v. Ivey, 332 N.C. 299, 420 S.E.2d 174 (1992). Defendant's violation of a statute, however, will not constitute negligence per se unless plaintiff belongs to the class of persons which the statute was intended to protect. Belk v. Boyce, 263 N.C. 24, 138 S.E.2d 789 (1964). Where a statute or regulation is designed to promote safety and creates a specific duty for the protection of others, its violation is negligence per se. Hutchens v. Hankins, 63 N.C.App. 1, 303 S.E.2d 584, disc. rev. denied, 309 N.C. 191, 305 S.E.2d 734 (1983). Such safety statutes create a minimum standard of care and conduct inconsistent with statutory mandate will be deemed unreasonable.

A court may determine that a legislative enactment either explicitly or implicitly creates a minimum standard of care required to avoid liability for negligence. However, not every statute purporting to have generalized safety implications may be interpreted to automatically result in tort liability for its violation. Instead, a court should look at the statute's purpose in determining whether to adopt the statutory mandate as the reasonable man standard.

The court may adopt as the standard of conduct of a reasonable man the requirements of a legislative enactment or an administrative regulation whose purpose is found to be exclusively or in part

(a) to protect a class of persons which includes the one whose interest is invaded, and

(b) to protect the particular interest which is invaded, and

(c) to protect that interest against the kind of harm which has resulted, and

(d) to protect that interest against the particular hazard from which the harm results.

Hutchens, supra, (quoting Restatement of Torts § 286). We therefore must first examine the purpose of the adoption of the DOT telephone booth regulation.

"The general purpose of the laws creating the Department of Transportation is that said Department of Transportation shall take over, establish, construct, and maintain a statewide system of ... highways...." N.C.Gen.Stat. § 136-45. "The State Highway Commission [now DOT] was created by the General Assembly ... as [a] ... State agency or instrumentality, and is charged with the duty of exercising certain administrative and governmental functions for the purpose of constructing and maintaining State ... public roads." Highway Commission v. Batts, 265 N.C. 346, 144 S.E.2d 126 (1965). "All the other powers it possesses are incidental to the purpose for which it was created." Id., (quoting DeBruhl v. Highway Commission, 245 N.C. 139, 95 S.E.2d 553 (1956)).

N.C.Gen.Stat. § 136-18 sets forth the many powers of the DOT, broadly and specifically. These powers include, inter alia, the authority to acquire and maintain rights-of-way for roads and highways, including the authority to regulate the use of such rights-of-way, pertinent to the case now before us, under the provisions of G.S. § 136-18(10):

To make proper and reasonable rules, regulations and ordinances for the placing or erection of telephone, telegraph or other poles, signboards, fences, gas, water, sewerage, oil, or other pipelines, and other similar obstructions that may, in the opinion of the Department of Transportation, contribute to the hazard upon any of the said highways or in any wise interfere with the same, and to make reasonable rules and regulations for the proper control thereof. And whenever the order of the said Department of Transportation shall require the removal of, or changes in, the location of telephone, telegraph, or other poles, signboards, fences, gas, water, sewerage, oil, or other pipelines, or other similar obstructions, the owners thereof shall at their own expense move or change the same to conform to the order of said Department of Transportation. Any violation of such rules and regulations or noncompliance with such orders shall constitute a misdemeanor.

It is clear that in this legislative scheme, the authority and powers set forth in G.S. § 136-18(10) are intended to allow the DOT to protect the integrity of its rights-of-way, which are there to begin with to accommodate the construction and maintenance of roads and highways.

These circumstances lead us to the conclusion that the DOT prohibition against telephone booths in or upon highway rights-of-way does not include pedestrians within the class of protected persons. While the DOT's regulation may have safety implications, it does not provide a basis for negligence claims by this plaintiff. See NCNB v. Gutridge, 94 N.C.App. 344, 380 S.E.2d 408, disc. rev. denied, 325 N.C. 432, 384 S.E.2d 539 (1989).

At trial, the burden was upon plaintiff to show an act or acts of negligence by GTE upon which liability to plaintiff might be founded. Having determined that the location of the booth in the right-of-way was not negligence per se, we look to the evidence to determine whether there was any basis for holding GTE liable.

At trial, the undisputed evidence as to the location and placement of the telephone booth plaintiff was using was as follows: The telephone booth was located in the parking lot of Durham Food Land (grocery store). Before the booth was installed, the owners of the Durham Food Land property represented and warranted to the GTE employees who installed the booth that it was on Durham Food Land's property. Under these circumstances, we discern no act of negligence on GTE's part in its placement of the telephone booth, and therefore hold that its motion for directed verdict should have been allowed.

For the reasons stated, the judgment below must be and is

Reversed.

ORR, J., dissents in a separate opinion.

MARTIN, J., concurs.

ORR, Judge, dissenting.

The majority, in my opinion, construes the public safety scope of the statute in question too narrowly. There can be no doubt that the statute was designed to protect the motoring public from the hazards incumbent with a car leaving the traveled portion of a highway and striking a fixed object such as a phone booth. However, to limit protection to the motorist in the car and not include the relatively unprotected person utilizing the phone booth is too restrictive an application. Under the majority's interpretation, a motorist striking a booth that violates the statute would be covered by the statute, but if that driver parked his car and was injured using the phone booth, no protection would exist.

The trial court correctly denied the defendant's motion for a directed verdict; and, for the above stated reasons, I dissent from the reversal of the trial court's ruling.