Johnson v. Guilford Cty. Bd. of Educ.

IN THE COURT OF APPEALS OF NORTH CAROLINA
2022-NCCOA-553
No. COA21-630
Filed 16 August 2022
North Carolina Industrial Commission, I.C. Nos. TA-26216 & TA-27059
Estate of KIE LANDON JOHNSON, by and through WILLIAM JOHNSON and
MONA ELLISON, Administrators of the Estate, Plaintiffs,
v.
GUILFORD COUNTY BOARD OF EDUCATION, Defendant.
OLIVIA BROWN, by and through her GUARDIAN AD LITEM, EMILY HOEPFL,
and EMILY HOEPFL, Individually, Plaintiffs,
v.
GUILFORD COUNTY BOARD OF EDUCATION, Defendant.
Appeal by Plaintiffs from decision and order entered 10 June 2021 by the Full
Commission of the North Carolina Industrial Commission. Heard in the Court of
Appeals 10 May 2022.
Frazier, Hill & Fury, R.L.L.P., by Torin L. Fury, and R. Steve Bowden &
Associate, P.C., by Edward P. Yount, for Plaintiffs-Appellants.
Attorney General Joshua H. Stein, by Special Deputy Attorney General Carl
Newman, for Defendant-Appellee.
INMAN, Judge.
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2022-NCCOA-553
Opinion of the Court
¶1 This appeal arises out of a head-on collision between a car and a school bus on
a rural road, which killed one passenger and injured others. Plaintiffs contend the
Commission erred in concluding: (1) the bus driver was not negligent by application
of the doctrine of sudden emergency; and (2) Plaintiffs failed to establish the bus
driver had the last clear chance to avoid the collision. After careful review, we affirm
the decision and order of the Commission.
I. FACTUAL & PROCEDURAL HISTORY
¶2 The record below tends to show the following:
¶3 On 26 August 2015, at approximately 4:30 p.m., Lakeisha Miller (“Ms. Miller”)
was driving a Guilford County school bus north on Knox Road, a two-lane road
divided by a double yellow, no-passing center line in a rural part of Guilford County,
when Jacob Larkin (“Mr. Larkin”), an 18-year-old high school student, drove in the
wrong direction in Ms. Miller’s lane and crashed his Toyota Camry head-on into the
bus. The collision killed one of the car’s passengers, Kie Johnson, and injured Mr.
Larkin, the car’s remaining passengers, including Olivia Brown, and Ms. Miller. At
the time of the collision, Ms. Miller had one minor passenger on the bus. Mr. Larkin
was impaired from a mixture of marijuana and Xanax, “was driving erratically,” and
had been “reckless” before the crash.
¶4 When Ms. Miller first saw Mr. Larkin’s vehicle traveling toward her in the
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wrong lane, she immediately took her foot off the gas pedal and slowed down to allow
him to return to the correct lane. She sounded the bus’s horn twice to alert the driver.
As the car approached, Ms. Miller noticed that the driver was slumped over in the
driver’s seat and appeared to be reaching down, looking at the floor of his car. The
shoulder of the road to the bus’s right was wide and grassy but sloped down into a
ditch. Ms. Miller considered turning right to avoid a collision but was worried the
bus would overturn in the uneven ditch or crash into the fence running parallel to the
road on the right. She could see there was no traffic behind Mr. Larkin, so “at the
last minute,” she maneuvered the bus left––toward the oncoming lane of traffic that
the approaching car should have been in––to avoid the collision.
¶5 Ms. Miller had driven buses for Guilford County Schools for approximately ten
years. She had obtained her commercial driver’s license in 2005, completed the
State’s requisite training courses for school bus traffic and safety, and renewed her
certification every few years. North Carolina school bus drivers are trained that
when an approaching driver is in the wrong lane, that driver’s natural response will
be to return to his or her correct lane if the driver realizes what has happened and it
may be best to move right. The instruction “Steering to Avoid A Crash” further
provides: “Top heavy vehicles such as school buses may turn over . . . . If something
is blocking your path, the best direction to steer will depend on the situation . . . . If
the shoulder is clear, going right may be best.” Knox Road was on Ms. Miller’s regular
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route for two to three years, and she had driven the road at least one hundred times,
if not more.
¶6 On 11 April and 23 July 2018, Plaintiffs, administrators of Kie Johnson’s estate
and guardian for Olivia Brown, respectively, filed claims against the Guilford County
Board of Education (the “Board”) for $1,000,000 in damages under the Tort Claims
Act with the North Carolina Industrial Commission. Plaintiffs alleged: (1) Ms.
Miller’s maneuver of the school bus was not sufficient to avoid colliding with Mr.
Larkin’s vehicle; and (2) Ms. Miller was negligent when she failed to recognize the
danger of Mr. Larkin’s oncoming car, honk her horn to warn Mr. Larkin, maintain
proper control of the school bus, maintain a proper lookout, and crossed left of center
while operating the Board’s bus. The Board denied all allegations of negligence and
raised defenses of (1) contributory negligence, (2) intervening, superseding, and
criminal acts of Mr. Larkin, (3) intervening and superseding negligence and acts of
the surviving car passengers, and third parties, and (4) the sudden emergency
doctrine.
¶7 The matter was bifurcated on the issues of liability and damages, and these
consolidated claims came on for trial before a Deputy Commissioner on 17 June 2019.
The Deputy Commissioner denied Plaintiffs’ claims and Plaintiffs appealed to the
Full Commission (the “Commission”).
¶8 Reviewing the evidence, the Commission concluded Ms. Miller’s evasive
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actions were proper and lawful because the bus was not left of the center yellow lines
at the point of impact and, even if it was, Mr. Larkin’s oncoming car was an
obstruction that permitted Ms. Miller to deviate from the right lane of traffic. The
Commission concluded Ms. Miller’s actions were further insulated from liability
under the doctrine of sudden emergency, and she “did not breach a duty of care owed
to Plaintiffs.” Even if Ms. Miller was negligent, the Commission alternatively
concluded Plaintiffs were barred from recovery because they were contributorily
negligent for “ignor[ing] unreasonable risks or dangers which would have been
apparent to a prudent person exercising ordinary care for his own safety” and failing
to leave Mr. Larkin’s car when they had the opportunity prior to the collision. Finally,
the Commission concluded that the Board was not liable under the doctrine of last
clear chance because Plaintiffs “failed to prove that Ms. Miller was negligent in the
operation of her school bus” and “that Ms. Miller, by the exercise of reasonable care,
‘failed or refused to use every reasonable means’ at her command to avoid the
impending injury.” Plaintiffs appeal.
II. ANALYSIS
A. Standard of Review
¶9 We review the Commission’s decision under the Tort Claims Act “‘for errors of
law only under the same terms and conditions as govern appeals in ordinary civil
actions, and the findings of fact of the Commission shall be conclusive if there is any
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competent evidence to support them.’” Simmons v. Columbus Cty. Bd. of Educ., 171
N.C. App. 725, 727-28, 615 S.E.2d 69, 72 (2005) (quoting N.C. Gen. Stat. § 143-293(2003)). “As long as there is competent evidence in support of the Commission’s
decision, it does not matter that there is evidence supporting a contrary finding.” Id.
at 728, 615 S.E.2d at 72 (citation omitted). “Under the Tort Claims Act, when
considering an appeal from the Commission, our Court is limited to two questions:
(1) whether competent evidence exists to support the Commission’s findings of fact,
and (2) whether the Commission’s findings of fact justify its conclusions of law and
decision.” Fennell v. N.C. Dep’t of Crime Control & Pub. Safety, 145 N.C. App. 584,
589, 551 S.E.2d 486, 490 (2001) (quotation marks and citation omitted).
¶ 10 Where the Commission’s factual findings are unchallenged, they are binding
on appeal. Medlin v. Weaver Cooke Constr., LLC, 367 N.C. 414, 423, 760 S.E.2d 732,
738 (2014). “In addition, findings of fact to which error is assigned but which are not
argued in the brief are deemed abandoned.” Strezinski v. City of Greensboro, 187 N.C.
App. 703, 706, 654 S.E.2d 263, 265 (2007) (citation omitted).
B. The Doctrine of Sudden Emergency
¶ 11 Plaintiffs assert two challenges to the Commission’s application of the sudden
emergency doctrine: (1) Ms. Miller contributed to the sudden emergency by failing to
exercise due care when she accelerated towards the collision and swerved left, in
violation of her training; and (2) the oncoming collision did not require Ms. Miller to
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act instantly by swerving. Neither argument is persuasive.
¶ 12 Plaintiffs have not challenged any of the Commission’s findings of fact, so they
are binding on this Court. See Medlin, 367 N.C. at 423, 760 S.E.2d at 738. Further,
though Plaintiffs’ proposed issues on appeal included challenges to findings 38 and
39, their brief does not challenge whether either finding is supported by competent
evidence. Therefore, they have abandoned any challenge to these findings. See
Strezinski, 187 N.C. App. at 706, 654 S.E.2d at 265.
¶ 13 We consider, based on the binding findings of fact and applicable law, whether
the Commission erred in applying the doctrine of sudden emergency. See Simmons,
171 N.C. App. at 727, 615 S.E.2d at 72. For the reasons explained below, we affirm
the Commission.
1. The emergency compelled Ms. Miller to act instantly.
¶ 14 Our courts have defined an emergency situation “as that which compels one to
act instantly to avoid a collision or injury.” Keith v. Polier, 109 N.C. App. 94, 98, 425
S.E.2d 723, 726 (1993) (cleaned up).
¶ 15 Plaintiffs contend the emergency did not require Ms. Miller to act instantly
because she had between 10.9 and 15.6 seconds to react from the moment she first
observed Mr. Larkin’s vehicle in her lane until the point of impact. In its decision
and order, the Commission explicitly considered the timing of the collision and
described an accident reconstruction expert’s testimony on this issue: “Ms. Miller had
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10.9 to 15.6 seconds to first perceive and react, slow the bus to a stop, and then
accelerate to impact speed[,]” and she “had 5 seconds from slowing the bus to the
point of impact.” (Emphasis added). The Commission further found that Ms. Miller
had “less than five seconds” to act after realizing that the oncoming vehicle would not
correct its path:
38. . . . . When it became apparent that Mr. Larkin was
slumped over the steering wheel and Mr. Larkin would not
return his vehicle to the proper lane, Ms. Miller had less
than five seconds to choose to either (1) steer right and risk
overturning the school bus in the ditch with her student
passenger, or (2) steer left into the empty lane.
We are bound by the Commission’s unchallenged findings, Medlin, 367 N.C. at 423,
760 S.E.2d at 738, and we will not reweigh the evidence, Adams v. AVX Corp., 349
N.C. 676, 681, 509 S.E.2d 411, 414 (1998) (“[O]n appeal, this Court does not have the
right to weigh the evidence and decide the issue on the basis of its weight.” (quotation
marks and citation omitted)). See also Simmons, 171 N.C. App. at 728, 615 S.E.2d at
72.
¶ 16 Our Court has held that reacting in less than five seconds qualifies as acting
“instantly” to avoid injury for the purposes of the sudden emergency doctrine. See,
e.g., Schaefer v. Wickstead, 88 N.C. App. 468, 471-72, 363 S.E.2d 653, 655 (1988)
(holding an instruction on the doctrine of sudden emergency was warranted when the
defendant had between 4.55 and 5.5 seconds to avoid hitting a pedestrian with his
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vehicle).
¶ 17 The decisions Plaintiffs cite––Keith v. Polier, 109 N.C. App. 94, 425 S.E.2d 723(1993), and Colvin v. Badgett, 120 N.C. App. 810, 463 S.E.2d 778 (1995)––are
factually distinguishable. In Keith, we held the defendant was not entitled to the
benefit of an instruction on the sudden emergency doctrine because the alleged
emergency was not sudden where he rear-ended a car stopped at a traffic signal, 109
N.C. App. at 99-100, 425 S.E.2d at 726-27, and, in Colvin, we held that the driver’s
“fear and apprehension upon seeing his sister-in-law’s truck on the side of the road,
while understandable, did not give rise to a situation where he had to act instantly
to avoid injury to himself or another” to warrant a jury instruction on the doctrine of
sudden emergency, 120 N.C. App. at 812, 463 S.E.2d at 780.
¶ 18 The Commission properly concluded the emergency, created by Mr. Larkin
driving in the wrong lane of travel, compelled Ms. Miller to act instantly, in less than
five seconds, to avoid a head-on collision. See Schaefer, 88 N.C. App. at 471-72, 363
S.E.2d at 655.
2. Ms. Miller did not contribute to or cause the sudden emergency.
¶ 19 “The doctrine of sudden emergency applies when a defendant is confronted
with an emergency situation not of his own making and requires [a] defendant only
to act as a reasonable person would react to similar emergency circumstances.”
Weston v. Daniels, 114 N.C. App. 418, 420, 442 S.E.2d 67, 71 (1994) (citation omitted)
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(emphasis added). But a defendant shall not be “held liable for failure to act as a
calm, detached reflection at a later date would dictate.” Id. (citation omitted).
¶ 20 As an initial matter, the Board contends Plaintiffs have waived review of this
challenge to the application of the sudden emergency doctrine—that Ms. Miller is not
entitled to the defense because her negligence caused or contributed to the sudden
emergency—because they did not present the specific challenge to the Commission
on appeal from the Deputy Commissioner’s decision and order. Assuming without
deciding whether Plaintiffs preserved this issue for our review, we hold the
Commission correctly concluded Ms. Miller’s actions are insulated from liability
under the doctrine of sudden emergency.
¶ 21 Plaintiffs disregard the Commission’s binding findings that Ms. Miller did not
cross the center, yellow line and that she acted reasonably in maneuvering the bus to
the left:
23. . . . . The school bus is fully in its appropriate lane,
angled slightly to the left, with its front left tire slightly
over the nearest double yellow line but not across the
second yellow line. Thus, based on the simulation, the
point of impact is within Ms. Miller’s lane of traffic with
the front right of Mr. Larkin’s car striking the front right
of the school bus.
38. Based upon the preponderance of the evidence in view
of the entire record, the Full Commission finds . . . that Ms.
Miller, at the time, had to make an immediate decision
when confronted with an impending collision. The Full
Commission finds that, given the relatively short window
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of time in which she had to react, Ms. Miller acted
reasonably in her evasive maneuvers to avoid a collision
with Mr. Larkin’s vehicle. . . . Ms. Miller assessed what
she thought was the best course of action based on her
years of experience as a driver, her training, and
familiarity with her school bus route. While it may be best
to move the school bus right when a vehicle drifts into the
path of a school bus, training materials acknowledge that
there are times when going right is not possible. The Full
Commission finds that Ms. Miller acted reasonably when
she drove to the left in an attempt to avoid the collision
with Mr. Larkin’s car.
39. Based upon the preponderance of the evidence in view
of the entire record, the Full Commission finds that even if
Ms. Miller’s school bus crossed the double yellow line prior
to the collision, doing so was reasonable given that Ms.
Miller was attempting to avoid Mr. Larkin’s vehicle.
These findings support the Commission’s legal conclusion that Ms. Miller’s actions
are insulated from liability under the doctrine of sudden emergency. See Fennell, 145
N.C. App. at 589, 551 S.E.2d at 490.
¶ 22 Plaintiffs compare this case to several cases where a driver was precluded from
invoking the sudden emergency doctrine because of their own negligence—for failure
to travel at a safe speed, maintain control, or keep a proper lookout—because it
contributed to the emergency. See, e.g., Goins v. Time Warner Cable Se., LLC, 258
N.C. App. 234, 238-40, 812 S.E.2d 723, 727-28 (2018) (cyclists were traveling too fast
and failed to keep proper lookout for downed utility line in the roadway); Sobczak v.
Vorholt, 181 N.C. App. 629, 639, 640 S.E.2d 805, 812 (2007) (driver was “on notice of
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a potential encounter with ice” in snowy conditions); Gupton v. McCombs, 74 N.C.
App. 547, 549-50, 328 S.E.2d 886, 888 (1985) (driver “failed to keep a vigilant lookout
for the [pedestrian]” and sound her horn); White v. Greer, 55 N.C. App. 450, 454, 285
S.E.2d 848, 851-52 (1982) (motorcyclist failed to avoid a car turning left in the
oncoming lane). Those cases are inapposite because, throughout the sequence of this
collision, Ms. Miller drove the bus at a reasonable speed, maintained control of the
bus, and kept a lookout for Mr. Larkin’s vehicle and her surroundings.
¶ 23 In this case, Mr. Larkin created an emergency by traveling in the wrong lane
toward a head-on collision with the school bus. See, e.g., Casey v. Fredrickson Motor
Express Corp., 97 N.C. App. 49, 56, 387 S.E.2d 177, 181 (1990) (holding evidence of
an oncoming vehicle in the wrong lane of travel was sufficient to warrant a jury
instruction on the sudden emergency doctrine). And Ms. Miller’s subsequent actions
did not contribute to or cause the sudden emergency. See Weston, 114 N.C. App. at
420, 442 S.E.2d at 71. When Ms. Miller first saw Mr. Larkin’s vehicle in her lane,
she immediately slowed the bus and honked her horn to warn the driver. Because
Mr. Larkin did not return to the correct lane and Ms. Miller was concerned about the
slope on the right shoulder of the roadway as well as the safety of the bus’s remaining
passenger, she accelerated to the left in her lane to avoid a collision. Ms. Miller did
not cross the yellow line and school bus safety training materials “acknowledge that
there are times when going right is not possible.” She cannot be held liable “for failure
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to act as a calm, detached” accident reconstruction expert with the benefit of
hindsight. Id. (citation omitted).
¶ 24 Since Ms. Miller was compelled to act instantly and her actions did not
contribute to the creation of the emergency, we hold the Commission appropriately
applied the doctrine of sudden emergency and concluded the Board, through the
actions of its employee Ms. Miller, was not negligent.
¶ 25 Because we affirm the Commission’s conclusion that Ms. Miller was not
negligent and Plaintiffs do not challenge the Commission’s alternative conclusion
that Plaintiffs’ claims were further barred based on their own contributory
negligence, we need not address Plaintiffs’ remaining argument about the doctrine of
last clear chance. See Wray v. Hughes, 44 N.C. App. 678, 684-85, 262 S.E.2d 307, 311
(1980) (“[W]here there is no evidence that [a] defendant failed to keep a reasonable
lookout in the direction of travel or that a person exercising a proper lookout would
have been able in the exercise of reasonable care to avoid the collision, the last clear
chance doctrine does not apply.” (citations omitted)).
III. CONCLUSION
¶ 26 For the reasons outlined above, we affirm the decision and order of the
Commission.
AFFIRMED.
Judges ARROWOOD and WOOD concur.