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RALEIGH, NC -- Tort/Negligence
STCA - Personal Injury - Motorcycle Accident - DOT Tractor Trailer - Unlicensed
Driver - Negligence Per Se
Barnard v. N.C. Department of Transportation. (Lawyers Weekly No. 07-08-0652, 8
pp.) (Buck Lattimore, Chairman) Appealed from Decision & Order of George T.
Glenn II, Deputy Commissioner. I.C. No. TA-18275.
Even if the Industrial Commission did not find the plaintiff's testimony of being
struck from behind more credible, since a DOT trailer struck him and caused his
injuries, and since the DOT driver was not licensed to drive with the trailer, the
DOT was negligent per se.
In the relevant area, Highway 70 is a divided highway with two lanes for eastbound
traffic with a left-hand turn lane, two lanes for westbound traffic with a left-hand
turn lane, and a grassy median between the eastbound and westbound lanes with a
median crossover.
According to the plaintiff, he drove his motorcycle across the eastbound lanes of
Highway 70 and stopped in the median crossover. He checked for oncoming westbound
traffic and saw a tractor-trailer approaching from the east in the outside (right-hand)
lane. After determining that the inside (left-hand) westbound lane was clear, the
plaintiff pulled into the inside westbound lane of Highway 70 and began to accelerate
down the middle of the inside lane.
The plaintiff testified that the tractor-trailer, operated by N.C. Department of
Transportation employee Robert Corey, suddenly and without warning began to merge
from the outside lane into the inside lane occupied by the plaintiff. The plaintiff
attempted to avoid the truck, but the left side of the lowboy trailer struck the
right rear of the plaintiff's motorcycle.
Mr. Corey acknowledged that, although he had been driving tractor-trailers pulling
lowboy trailers for at least a year, his Class A Commercial Driver License (CDL)
at the time of the accident included a restriction of no trailers. He testified
that he had shifted from the outside lane to the inside lane due to traffic on Highway
70 approximately 1000 feet from the median crossover.
Mr. Corey testified that he passed the plaintiff sitting stopped on his motorcycle
on the west side of the median crossover. Mr. Corey passed by the plaintiff in the
cab of his truck and then watched in his rearview mirror as the front tire of the
plaintiff's motorcycle hit the rear tires of the lowboy trailer about 15 feet from
its end. The substance of Mr. Corey's testimony appears to be that the plaintiff
pulled out of the median crossover and drove directly into the side of the lowboy
trailer, with the impact taking place within 10 feet of the western edge of the
median crossover.
Mr. Corey's passenger (DOT employee Edward Wright) and the driver of a car following
the tractor trailer gave descriptions of the accident which were similar to Mr.
Corey's.
Josiah McKamey testified that he saw the plaintiff cross the eastbound lanes of
Highway 70. Mr. McKamey then turned away, but he heard the plaintiff merge into
traffic on Highway 70 westbound. Mr. McKamey testified that he heard the motorcycle
engine rev for about a second and a half, including a shift into second gear, before
hearing the sound of the accident, at which point Mr. McKamey turned in time to
see the plaintiff flying through the air.
Based on the evidence before it, the Industrial Commission finds that the plaintiff's
motorcycle collided with the lowboy trailer 80 to 100 feet west of the westernmost
end of the median crossover.
Photographs of the motorcycle following the accident show significant damage to
the right rear of the motorcycle. The photos show damage to the right side of the
motorcycle. However, the photos show virtually no damage to the front of the motorcycle.
The Commission gives reduced weight to the descriptions of the accident by Mr. Corey,
his passenger, and the driver of the car following the truck. Their testimony is
inconsistent with the physical evidence of the accident, including the location
of the accident and the damage to the motorcycle. The Commission gives greater weight
to the descriptions of the accident by the plaintiff and Mr. McKamey. Their testimony
is consistent with the physical evidence of the accident.
The Commission finds that the plaintiff properly ascertained that the inside lane
of Highway 70 westbound was free of oncoming vehicles and began traveling within
that lane, that Mr. Corey was driving the defendant's truck in the outside lane
of Highway 70 westbound and encroached upon the plaintiff's use of the inside lane
as he began to pass the plaintiff, and that the impact between the plaintiff's motorcycle
and the defendant's lowboy trailer was a direct and proximate result of Mr. Corey's
encroachment on the plaintiff's use of the inside lane.
As a proximate result of the accident, the plaintiff sustained severe personal injuries.
He still suffers significant daily physical pain. Such pain, in combination with
the injury to his brain, has prevented the plaintiff from engaging in many of the
regular activities of daily life that he enjoyed prior to the accident. In addition,
the resulting injuries and disabilities have caused significant mental suffering
and depression.
The accident left the plaintiff totally disabled.
Because Mr. Corey encroached upon the plaintiff's use of the inside lane of Highway
70 westbound, because the defendant has failed to show that Mr. Corey first ascertained
that such movement could be made with safety, and because Mr. Corey's encroachment
upon the plaintiff's use of the inside lane proximately caused the plaintiff's injuries,
the Commission concludes that the plaintiff's injuries are the result of Mr. Corey's
negligence and that such negligence is imputed to the defendant under the doctrine
of respondeat superior.
Even had the Commission found Mr. Corey's testimony credible, his driving of a truck
pulling a lowboy trailer, while in possession of a CDL with a restriction of no
trailers, constituted negligence per se.
Because the lowboy trailer was indisputably the proximate cause of the plaintiff's
injuries, Mr. Corey's negligence is actionable.
The plaintiff was not contributorily negligent. Where the Commission has found that
the plaintiff's use of the inside lane of Highway 70 westbound was appropriate and
justified, the defendant has failed to prove any want of due care on the plaintiff's
part that proximately led to his injuries.
Judgment for the plaintiff.
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