Lively v. N.C. Wildlife Resource Commission

*********** The undersigned have reviewed the prior Opinion and Award of Deputy Commissioner Ledford based upon the record of the proceedings before former Deputy Commissioner Hoag and the briefs and arguments of the parties. The appealing parties have not shown good ground to reconsider the evidence, receive further evidence, rehear the parties or their representatives, or amend the Opinion and Award, except that plaintiff has shown good ground to reconsider the amount of damages awarded to plaintiff. *********** The Full Commission finds as fact and concludes as matters of law, the following, which were entered into by the parties before the Deputy Commissioners as: STIPULATIONS 1. These actions were filed pursuant to the Tort Claims Act, N.C. Gen. Stat. § 143-291 et seq. The Industrial Commission has jurisdiction to hear these claims.

2. The deposition testimony of L. Andrew Goad, DDS, Margo Burr, M.A., and Antonio Puente, Ph.D. is a part of the evidentiary record, along with additional documents submitted via the stipulation of the parties after the hearing before the Deputy Commissioner.

3. The following Exhibits were identified and submitted via the stipulation of the parties at the time of the hearing before the Deputy Commissioner:

Plaintiff's Exhibit Nos. 1 through 3 — Photographs of the Accident Scene

Plaintiff's Exhibit No. 4 — Photograph of the Vehicle (driven by Kimberly Lyda)

Plaintiff's Exhibit Nos. 5 through 10 — Photographs of Autumn

Plaintiff's Exhibit No. 11 and 12 — Photographs of Cassie

Plaintiff's Exhibit No. 13 and 14 — Photographs of Edward Lyda, Jr.

Plaintiff's Exhibit No. 15 — Accident Investigation Report

Plaintiff's Exhibit No. 16 — Custody Order

Plaintiff's Exhibit No. 17 — Autumn's Medical Records

Plaintiff's Exhibit No. 18 — Brittany's Medical Records

Plaintiff's Exhibit No. 19 — Cassie's Medical Records

Plaintiff's Exhibit No. 20 — Edward Lyda Jr.'s Medical Records

Plaintiff's Exhibit No. 21 — Kimberly's Medical Records

(Defendant's Exhibit No 1 was identified at the hearing, but not offered or received.)

The following additional Plaintiff's Exhibits were stipulated by both parties and mailed to The Commission with a cover letter on April 4, 2000:

Plaintiff's Exhibit No. 22 — Custody Order for Edward Lyda Jr.

Plaintiff's Exhibit No. 23 — Marriage License of Edward D. Lyda, Sr. and Kimberly Anne Lively

Plaintiff's Exhibit No. 24 — Birth Certificate of Edward Lyda Jr.

Plaintiff's Exhibit No. 25 — Death Certificate of Kimberly A. Lyda

Plaintiff's Exhibit No. 26 — Birth Certificate of Autumn Marie Lively

Plaintiff's Exhibit No. 27 — Birth Certificate of Brittany Lynn Lively

Plaintiff's Exhibit No. 28 — Birth Certificate of Cassie Annette Lively

Plaintiff's Exhibit No. 29 — Additional Medical Records of Edward Lyda Jr.

*********** Based upon the evidence of record and the findings of fact found by the Deputy Commissioner, the Full Commission finds as follows FINDINGS OF FACT 1. This claim and those consolidated with it were brought pursuant to the Tort Claims Act on behalf of four minor children and one adult, who were injured in an accident, which occurred on January 22, 1997 in Transylvania County. Three of the minors, Brittany Lively, Cassie Lively, and Autumn Lively, were the children of Kimberly Lyda, who is now deceased. Kimberly Lyda was also injured in the accident. The fourth child, Edward Lyda, Jr. is the son of Edward D. Lyda, Sr., who was married to Kimberly Lyda.

2. The father of the three Lively children, Carroll Lively, was killed in a vehicular accident in August 1996. At that time, Carroll was divorced from Kimberly, and the three minor children lived with her. Kimberly was involved in a relationship with Edward Lyda, whom she lived with and then married on December 7, 1996. On January 22, 1997, the three minor Lively children lived with Kimberly and Edward along with his son, Edward, Jr.

3. The accident, which is the subject of these claims, occurred at about 4:10 p.m. on January 22, 1997 in Transylvania County east of the Brevard city limits on N.C. Highway 280 at the intersection with McGuire Road. At that time, a school bus was stopped facing west in the right-hand lane of Hwy. 280 to drop off children, and had extended the flashing stop signs. Kimberly Lyda, now deceased, had stopped her vehicle on McGuire Road facing Highway 280, to pick up her three daughters and her stepson, who were being dropped off the school bus.

4. As the children were departing from the school bus and crossing the road to their mother's car, a vehicle owned by the N.C. Wildlife Resource Commission, and driven by their employee, Ishmel Creson was traveling east on Highway 280. Mr. Creson was driving a large truck pulling a flatbed trailer loaded with a backhoe. At this location, Highway 280 has five lanes, two in either direction and one center turn lane. A vehicle had stopped in the center lane eastbound on Hwy. 280 and a vehicle had stopped in the outside eastbound lane on Hwy. 280, which left only the lane between them open for through traffic. It had been raining and the pavement was wet.

5. As Creson's truck approached, he attempted to change lanes and applied the brakes. The brakes did not operate properly and the truck jackknifed, sliding into the vehicle stopped in the center turn lane, and knocking it forward. The trailer turned onto its side and the backhoe slid into the school bus. Although Brittany Lively was getting off of the bus to cross the street with the other children, she had returned to retrieve a hat for a little boy and was on the bus at the time it was struck causing her to fall and hit her head. The truck continued sliding across the highway and struck and rolled onto Kimberly Lyda's vehicle. As the truck slid, it also struck Autumn Lively and Cassie Lively, as they were crossing the street. Edward Lyda, Jr. was injured as he jumped to get out of the way and landed in a ditch.

6. Sergeant John Dunn of the North Carolina Highway Patrol investigated the accident, along with three other troopers and two DMV officers. One of the investigators, Trooper Grayson, was a specialist in accident reconstruction. The investigators concluded that the brakes on the truck and trailer owned by the Defendant were out of tolerance and the inspection on the trailer had expired.

7. The driver of the truck, Ishmel Creson, an employee and agent of the N.C. Wildlife Resource Commission, was negligent in that he failed to keep a reasonable lookout to observe the vehicles stopped in the highway ahead of him in sufficient time to slow or stop his vehicle to avoid a collision. He failed to keep this truck under proper control and to operate it in a safe manner, such as to avoid the collision. He operated the truck and trailer at a speed that was greater than was reasonable considering the rainy conditions and the fact that the brakes were not in proper working order.

8. The N.C. Wildlife Resource Commission had a duty to keep the truck and trailer properly maintained and knew or should have known that the brakes were defective and should have taken steps to repair the same prior to the operation of the vehicle on January 22, 1997.

9. On the date of the accident, Brittany Lively was ten years old, having a birth date of July 24, 1986. She was on the bus when it was struck by the backhoe, which caused her to fall and strike her head. She apparently lost consciousness for a few seconds.

10. On the date of the accident, Autumn Marie Lively was eight years old, having a birth date of September 29, 1988. She was crossing the highway at the time of the accident, and was struck and pinned between the truck and her mother's car. She suffered extensive abrasions and bruising on her left thigh and her buttocks and cuts to her forehead.

11. On the date of the accident, Cassie Lively was six years old, having a birth date of January 14, 1991. As she was crossing the highway, she was struck by the truck and suffered cuts to her forehead and swelling and bruising around her right eye and abrasions to her right foot and leg.

12. On the date of the accident, Edward Lyda, Jr. was six years old, having a birth date of August 24, 1990. He was crossing the highway towards his stepmother's vehicle when the accident occurred. He attempted to jump out of the way and landed in a ditch. He sustained a deep laceration to the back of his head and a fractured left clavicle.

13. Autumn Lively, Cassie Lively and Edward Lyda Jr. were all taken to Transylvania Community Hospital Emergency Room. Autumn and Cassie both had apparent head injuries. Due to concerns over the possible seriousness of their injuries, Autumn and Cassie were transferred to Memorial Mission Hospital in Asheville.

14. As a result of the accident, Brittany struck her head and sustained a contusion to her forehead. Dr. Ora Wells of Hendersonville Pediatrics saw her on January 24, 1997, when she complained of headaches and earaches. Dr. Wells assessed a contusion and did not believe Brittany had sustained a concussion.

15. Brittany was seen in counseling with Margo Burr, M.A., who also counseled the other Lively children. Ms. Burr made no diagnosis of any psychological disorder with regard to Brittany. Although she didn't make a specific diagnosis, she recommended counseling for Brittany, as well as her two sisters, to help them work through the trauma of the accident and the subsequent death of their mother. Ms. Burr believed that it was important for their mother, Kimberly Lyda, and the stepfather, to participate in therapy as well, for the benefit of the children.

16. On November 5, 1997, Brittany's mother, Kimberly Lyda, died as a result of injuries sustained from a self-inflicted gunshot wound of October 31, 1997. Thereafter, Brittany and her sisters have been placed in the custody of and remain with their maternal grandmother, Judith Sebrell, who is also a registered nurse. Ms. Sebrell lives in Ivanhoe in Sampson County in eastern North Carolina.

17. At the request of plaintiff's counsel, Brittany and her sisters were also evaluated in April and May 1999, by Dr. Antonio E. Puente, a neuropsychologist. In his evaluation, Dr. Puente concluded that Brittany had sustained a very minor closed head injury with some post-concussive syndrome, which was resolving or resolved. He found that Brittany had done unusually well under the circumstances.

18. Dr. Puente has also seen Brittany in follow-up, with her sisters and grandmother. Dr. Puente did recommend ongoing therapy for the three girls, which he believed would be beneficial in helping them to adjust to the trauma of the accident and the subsequent loss of their mother. Of the three, Brittany seems to have recovered most completely. As of their visit of December 1999, Dr. Puente noted that Brittany felt she had recovered well from her parents' death, and that she continued to be a straight A student. Overall, he found that Brittany had adjusted well.

19. Ms. Sebrell, Brittany's grandmother, agrees that Brittany has recovered well emotionally following the accident, though at times she seems to keep to herself, as many teenagers tend to do. Ms. Sebrell has noticed that Brittany, as the oldest child, tends to look after her younger sisters. Although she had headaches for a short while, these have not been an ongoing problem. She has not suffered from nightmares like the two younger sisters. There is no indication that Brittany has sustained any permanent physical injury as a result of the accident.

20. The medical expenses incurred for the treatment of Brittany Lively, as a result of the accident of January 22, 1997, including her visit to Dr. Wells and counseling by Margo Burr, MA and Megan Batten, LPC, total approximately $300.00. The total cost for the evaluation done by Dr. Puente, adjusted proportionally for Brittany, amounts to about $2,400.00, for a total of about $2,700.00 in expenses for medical evaluation and treatment. At the time of his testimony in April 2000, Dr. Puente estimated that the total cost for recommended future counseling for Brittany and her two sisters would be in the range of $10,000.00 to $15,000.00 for all three girls.

21. Considering her age and the nature and extent of her injuries, the amount of $25,000.00 is the reasonable value of the damages sustained by Brittany Lively, as a result of the defendant's negligence, including the medical expenses incurred or to be incurred, her physical injury, her psychological and emotional injury, and her pain and suffering.

*********** Based upon the foregoing stipulations and findings of fact, the Full Commission concludes as follows CONCLUSIONS OF LAW 1. The negligence of defendant, and the employee(s) of defendant caused the accident of January 22, 1997, which resulted in the personal injuries sustained by Brittany Lively. Therefore, Brittany is entitled to recover damages of defendant pursuant to N.C. Gen. Stat. § 143-291 et seq.

2. The sum of $25,000.00 is reasonable and appropriate as an award of damages for the medical expenses, physical injury, psychological and emotional injury, and pain and suffering sustained by Brittany Lively.

*********** Based upon the foregoing stipulations, findings of fact and conclusions of law, the Full Commission enters the following ORDER IT IS HEREBY ORDERED that defendant shall pay damages in the amount of $25,000.00 (Twenty-five thousand dollars) for the use and benefit of Brittany Lively. Since Brittany Lively is a minor, such payment is to be made to the Clerk of Court of Sampson County to be held in trust for the use and benefit of Brittany Lively, subject to any attorney's fee that may be released by the Clerk of Court to plaintiff's counsel.

This the ___ day of March 2002.

S/_____________________________ DIANNE C. SELLERS COMMISSIONER

CONCURRING:

S/_____________________________ BERNADINE S. BALLANCE COMMISSIONER

S/_____________________________ LAURA KRANIFELD MAVRETIC COMMISSIONER