Richardson v. N.C. Department of Transp.

Opinion

* * * * * * * * * * * The undersigned have reviewed the prior Opinion and Award based upon the record of the proceedings before Deputy Commissioner Donovan and the briefs and arguments of the parties. The appealing party has not shown good grounds to reconsider the evidence, receive further evidence, rehear the parties or their representatives, or amend the Opinion and Award.

* * * * * * * * * * * The Full Commission finds as a fact and concludes as matters of law the following, which were entered into by parties as:

* * * * * * * * * * * Based upon all the competent evidence from the record, the Full Commission finds as follows:

FINDINGS OF FACT 1. On May 1, 2004, plaintiff was driving her automobile on Kingston Ave. in Rocky Mount, North Carolina. Plaintiff encountered a pothole in the road. Plaintiff did not suffer any injury at that time.

2. On May 3, 2004, plaintiff again hit the same pothole. On this occasion, plaintiff was traveling at approximately 35 mph. Plaintiff contends that as a result of the second incident she sustained injuries to her head, neck and back. As a result of those injuries, plaintiff incurred medical bills totaling $698.51.

3. Plaintiff testified that on May 3, 2004, she was aware of the pothole having hit it two days previously, and made no effort to avoid hitting it again.

* * * * * * * * * * * Based on the foregoing findings of fact, the Full Commission makes the following:

CONCLUSIONS OF LAW 1. A claimant whose own negligence has contributed to her injury cannot recover under the Tort Claims Act. N.C. Gen. Stat. § 143-299.1; Crawford v. Wayne County Board of Education,275 N.C. 354, 168 S.E.2d 33 (1969).

2. Plaintiff has made it clear that she knew of the pothole and had hit it two days prior to the date that forms the basis of her claim. Under these facts, plaintiff is contributorily negligent for any injuries suffered the second time she hit the pothole; therefore, her claim must fail. Id.

* * * * * * * * * * * Based upon the foregoing findings of fact and conclusions of law, the Full Commission enters the following:

ORDER 1. Plaintiff's claim is barred by her own contributory negligence; therefore, her claim must be and is hereby DISMISSED.

2. Each side shall bear its own costs.

This the 20^th day of March 2006

S/_______________ DIANNE C. SELLERS COMMISSIONER

CONCURRING:

S/_________________ BUCK LATTIMORE COMMISSIONER

S/_________________ THOMAS J. BOLCH COMMISSIONER