Hochheiser v. NORTH CAROLINA DEPT. OF TRANSP.

348 S.E.2d 140 (1986) Andree T. HOCHHEISER, Administrator of the Estates of Claudine Hochheiser and Renee Hochheiser, Deceased v. NORTH CAROLINA DEPARTMENT OF TRANSPORTATION. No. 8610IC152. Court of Appeals of North Carolina. September 16, 1986. *141 Marc W. Sokol and Marshall and Solomon by Donald H. Solomon, Raleigh, for plaintiff-appellee. Atty. Gen. Lacy H. Thornburg by Asst. Atty. Gen., George W. Lennon, Raleigh, for the State. HEDRICK, Chief Judge. The critical facts giving rise to these claims are not in dispute. The one question raised by this appeal is whether the uncontraverted facts support the award of death benefits to plaintiff under G.S. 143-291, the North Carolina Tort Claims Act. Stated another way, the question before us is whether these claims "arose as a result of the negligence of any officer, employee, involuntary servant or agent of the State while acting within the scope of his office, employment, service, agency or authority, under circumstances where the State of North Carolina, if a private person, would be liable to the claimant in accordance with the laws of North Carolina." G.S. 143-291. At common law the State was not liable for negligence or torts committed by the State or its agents in carrying out governmental duties and functions. Moody v. State Prison, 128 N.C. 12, 38 S.E. 131 (1901). It is well-established that the State cannot be sued in its own courts unless and until it expressly consents to be sued. Insurance Co. v. Gold, Commissioner of Insurance, 254 N.C. 168, 118 S.E.2d 792 (1961). By enacting G.S. 143-291, the Tort Claims Act, the legislature waived the State's sovereign immunity for claims arising "as a result of the negligence of any officer, employee, involuntary servant or agent of the State while acting within the scope of his office, employment, service, agency or authority, under circumstances where the State of North Carolina, if a private person, would be liable to the claimant in accordance with the laws of North Carolina." G.S. 143-291. In the present case plaintiff claims, and the Commission seems to conclude, that the Department of Transportation, an agency of the State, was negligent because of its failure to construct a guardrail along the existing secondary road at the point where this accident occurred, resulting in the deaths of Renee and Claudine Hochheiser. The specific question, therefore, before us is whether the State of North Carolina can be held liable under the Tort Claims Act for its decision, acting through the Department of Transportation and its employees, not to construct a guardrail on its right-of-way adjacent to Newton Road at the point where the Hochheiser vehicle ran off the highway and overturned down the embankment. Before we can say that defendant was negligent with respect to its failure to erect the guardrail in question, it must be determined that the Department of Transportation had a duty to the traveling public to erect such a guardrail. In an effort to show that defendant had a duty in this regard the Commission made numerous findings of fact regarding defendant's duty to inspect this particular highway: .... 7. During the period from 1967 to the time of the accident, standards and guidelines had been established by the American Association of State Highway and Transportation Officials and the Federal Government, and a body of research had been developed which established a methodology for dealing with roadside hazards. These standards and guidelines, research, studies, and literature, all *142 of which pointed strongly toward a duty to identify and remedy roadside hazards, were available to and used by the North Carolina Department of Transportation personnel prior to the date of the accident. 8. The Board of Transportation and the Department of Transportation have delegated to the division and district engineers the responsibility of inspecting the roads, and locating and remediating potentially hazardous sites with an eye toward safety and improvement as required by Federal statute and by professionally recognized standards. 9. The Division of Highways has an obligation to conduct periodic reviews on secondary roads. The Department of Transportation established a Safety Program prior to 1980, but this program was designed to identify sites where accidents frequently occur. It did not identify hazardous sites. .... 11. It is the responsibility of the district engineer to determine whether dangerous conditions or obstacles have arisen on existing roads. 12. The county maintenance supervisor, a position under the supervision of a district engineer, is responsible for conducting periodic reviews of a road for the existence of hazards that might develop. .... 15. From 1967 to 1983, the Division of the Department of Transportation that included Wake County had no established procedures for periodic review of secondary roads to determine whether guardrails or other safety devices should be installed on existing roads. .... 17. Stewart Sykes has been a District Engineer for Wake County since June of 1977. From 1974 to 1977, [h]e held the position of Assistant District Engineer for Wake County. As District Engineer, Mr. Sykes' duties include recommending guardrail installations on existing roads and he, along with several others, have a duty to look for dangerous locations on roadways. There was no system, however, for periodic review of a need for safety devices, such as barriers or guardrails, on secondary roads. 18. During the period from at least 1967 until the time of the accident, none of the employees of the North Carolina Department of Transportation having the authority and duty to inspect the roadways and make decisions regarding identification and remediation of roadside hazards, conducted any inspection of Newton Road with an eye to identification and remediation of any existing roadside hazards. 19. A reasonably prudent engineer exercising reasonable care would have identified the location as hazardous and would have made the location safe by the installation of a barrier. These statements by the Commission, denominated findings of fact, insofar as they purport to delineate defendant's duty to the traveling public, are really no more than erroneous conclusions of law. We note that the highway in this case was an "existing secondary road" not originally built by defendant which came under defendant's control no later than 1967. This is not a situation in which defendant failed properly to maintain and repair an existing highway under its control. Newton Road, as originally designed and constructed, did not include a guardrail at the accident site. Defendant had actual or constructive knowledge of the absence of a guardrail through one or more of its employees. We can assume that defendant made a conscious, informed choice not to put a guardrail at this particular location and that its decision not to erect a guardrail was not a negligent omission. Thus, the Commission's findings or conclusions regarding defendant's duty to inspect are irrelevant and immaterial. The Department of Transportation has the authority, duty and responsibility to plan, design, locate, construct and maintain the system of public highways in this State. G.S. 143B-346; Equipment Co. v. Hertz Corp. and Contractors, Inc. v. Hertz Corp., 256 N.C. 277, 123 S.E.2d 802 *143 (1962). The Department is vested with broad discretion in carrying out its duties and responsibilities with respect to the design and construction of our public highways. See Guyton v. Board of Transportation, 30 N.C.App. 87, 226 S.E.2d 175 (1976). The policies of the Board of Transportation and the Department of Transportation and the myriad discretionary decisions made by them as to design and construction are not reviewable by the judiciary "unless [their] action is so clearly unreasonable as to amount to oppressive and manifest abuse." Id. at 90, 226 S.E.2d at 177. We hold that the Department of Transportation's intentional, discretionary decision not to erect a guardrail at the site of this accident was not "so clearly unreasonable as to amount to oppressive and manifest abuse" so as to invoke the jurisdiction of the judiciary or the Industrial Commission to review the discretionary policy-making decisions of the Department of Transportation. We further hold that defendant's intentional, discretionary decision was not a breach of any duty imposed upon it by the facts and circumstances of this case. We hold that the evidence and the findings of fact fail to support the conclusion that defendant was negligent in any respect in these cases within the meaning of the Tort Claims Act, G.S. 143-291, or that any act or omission upon the part of defendant was the proximate cause of the accident and the deaths of Renee and Claudine Hochheiser. Reversed. ARNOLD and WELLS, JJ., concur.