Khatib v. NC Dep't of Transp. , 261 N.C. App. 168 ( 2018 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-1430
Filed: 4 September 2018
North Carolina Industrial Commission, I.C. No. TA-23392
BASMA KHATIB, a/k/a BASMA BADRAN NABABTEH, Plaintiff,
v.
NORTH CAROLINA DEPARTMENT OF TRANSPORTATION, Defendant.
Appeal by plaintiff from decision and order entered 23 August 2017 by the
North Carolina Industrial Commission. Heard in the Court of Appeals 8 August
2018.
Bryant Duke Paris III PLLC, by Bryant Duke Paris III, for plaintiff-appellant.
Attorney General Joshua H. Stein, by Special Deputy Attorney General Alesia
M. Balshakova, for defendant-appellee.
ELMORE, Judge.
Plaintiff Basma Khatib appeals a decision and order of the North Carolina
Industrial Commission denying her negligence claim against the North Carolina
Department of Transportation (“NCDOT”). Khatib sustained injuries after she
admittedly deviated from a pedestrian crosswalk to cut across a grass median and
stepped into an uncovered storm drain, falling five feet underground. She sued the
NCDOT in the Industrial Commission under the Tort Claims Act, see N.C. Gen. Stat.
§ 143-293, alleging that the NCDOT negligently failed to inspect and maintain the
KHATIB V. N.C. DEP’T OF TRANSP.
Opinion of the Court
storm drain because when she fell into it, the grate normally covering the storm drain
had been removed and was lying a few feet away. The Commission denied Khatib’s
claim in relevant part because it concluded she was contributorily negligent “when
she chose to deviate from the marked crosswalk and run across the grassy median
without keeping a proper lookout.”
On appeal, Khatib contends the Commission erred by finding and concluding
(1) the NCDOT owed her no duty to exercise reasonable care in maintaining its storm
drain; (2) the NCDOT did not negligently breach this duty; and (3) Khatib’s claim was
barred by contributory negligence. Because we hold the Commission’s challenged
findings were supported by competent evidence, which in turn supported its
conclusion that Khatib’s claim was barred by her own contributory negligence, we
affirm the Commission’s decision and order on this basis.
I. Background
On 26 June 2011, Khatib’s husband dropped her off to go for a jog near
Centennial Parkway in Raleigh. At that time, Entrepreneur Drive formed a T-
intersection with Centennial Parkway, and all four directions contained a pedestrian
crosswalk that covered the entire square of the intersection. To the west,
Entrepreneur Drive’s four driving lanes dead-ended a few car lengths from the
intersection, providing just enough space for cars to park, and those four lanes were
center divided by a curbed grass median. The grass median extended east beyond
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the crosswalk, at which point it became a sidewalk that connected the two segments
of crosswalk. A storm drain lie on the road adjacent to the northward facing curb of
the grass median, a few feet west of the crosswalk. For reasons unknown, and first
discovered by the NCDOT when it learned of Khatib’s fall, the grate normally
covering that storm drain had been removed and was lying a few feet away.
At approximately 8:00 p.m., Khatib called her husband to pick her up. Khatib
continued jogging northbound on Centennial Drive’s sidewalk as her husband, who
had been driving southbound on Centennial Drive, pulled his car nose first into the
northernmost lane of the westbound dead-end segment of Entrepreneur Drive and
parked to wait for her. When Khatib saw her husband’s vehicle, she chose not to
follow the pedestrian crosswalk path behind the car to enter its passenger-side door
but instead cut across the grass median to pass by the front of the car. Unfortunately,
when Khatib stepped off the grass median’s curb, she stepped into the uncovered
storm drain, fell approximately five feet, and sustained injuries.
Khatib sued the NCDOT under the Tort Claims Act for negligence. After a
deputy commissioner dismissed her claim with prejudice based, in relevant part, on
his conclusion that Khatib’s claim was barred by her own contributory negligence,
Khatib appealed to the Full Commission. After a hearing, the Commission entered a
decision and order on 23 August 2017 affirming the deputy commissioner’s decision,
thereby denying Khatib’s negligence claim against the NCDOT. In relevant part, the
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Commission found “[t]he hole [caused by the uncovered storm drain in which Khatib
fell] was visible to anyone approaching, so long as they were keeping a proper
lookout[,]” and Khatib’s “failure to use the designated crosswalk and failure to pay
attention to her surroundings, including the conditions of her path, when crossing the
median were the proximate cause of plaintiff’s fall and were not reasonable
considering the circumstances.” The Commission thus concluded that Khatib “failed
to exercise the standard of care that a person of ordinary prudence would
demonstrate when she chose to deviate from the marked crosswalk and run across
the grassy median without keeping a proper lookout” and, therefore, that she was
“barred from recovery under the Tort Claims Act on the basis of contributory
negligence.” Khatib appeals.
II. Analysis
On appeal, Khatib asserts the Commission erred by not (1) concluding the
NCDOT owed her a duty to exercise reasonable care in maintaining its storm drain;
(2) finding and concluding that the NCDOT’s negligence caused her injuries; and (3)
finding and concluding Khatib had not been contributorily negligent. Because we
conclude the Commission’s findings supported its conclusion that Khatib’s claim was
barred by contributory negligence, we affirm the Commission’s decision and order on
this basis and need not address the first two issues presented on appeal. Cf. State v.
Blackwell, 246 N.C. 642, 644, 99 S.E.2d 867, 869 (1957) (“[A] correct decision of a
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lower court will not be disturbed because a wrong or insufficient or superfluous
reason is assigned.” (citation omitted)).
A. Review Standard
“The standard of review for an appeal from a decision by the Full Commission
under the Tort[ ] Claims Act ‘shall be for errors of law 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 competent evidence to support them.’ ”
Webb v. N.C. Dep’t of Transp., 180 N.C. App. 466, 467, 637 S.E.2d 304, 305 (2006)
(quoting N.C. Gen. Stat. § 143-293 (2005)). “[W]hen considering an appeal from the
Full 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 Full
Commission’s findings of fact justify its conclusions of law and decision.” Id. at 467–
68, 637 S.E.2d at 305 (brackets omitted) (quoting Simmons v. N.C. Dep’t. of Transp.,
128 N.C. App. 402, 405–06, 496 S.E.2d 790, 793 (1998)).
B. Contributory Negligence
Khatib asserts the Commission erred “when it failed to find as fact and
conclude as a matter of law . . . that [she] was not guilty of contributory negligence.”
Khatib also contends the Commission’s findings numbered 5, 7, and 8, as well as its
legal conclusion numbered 11, which Khatib argues is actually a finding, were not
supported by competent evidence. We disagree.
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Contributory negligence is negligence on the part of the
plaintiff which joins, simultaneously or successively, with
the negligence of the defendant alleged in the complaint to
produce the injury of which the plaintiff complains. In
order to prove contributory negligence on the part of a
plaintiff, the defendant must demonstrate: (1) a want of
due care on the part of the plaintiff; and (2) a proximate
connection between the plaintiff’s negligence and the
injury. However, a plaintiff may relieve the defendant of
the burden of showing contributory negligence when it
appears from the plaintiff’s own evidence that he was
contributorily negligent.
Proffitt v. Gosnell, ___ N.C. App. ___, ___, 809 S.E.2d 200, 204 (2017) (citations,
quotation marks, and brackets omitted).
The Commission made the following challenged findings and conclusion to
support its determination that Khatib’s claim was barred by contributory negligence:
5. Plaintiff saw her husband’s vehicle and jogged toward[s]
it. Plaintiff was running on the sidewalk then cut through
the grass median away from the crosswalk and toward[s]
the front of the vehicle. When she reached the curb of the
median and stepped down, plaintiff fell into the uncovered
storm drain, approximately five feet to the bottom.
7. [sic] According to plaintiff, at the time of the incident it
was not dark, the weather was nice, and she “could see
perfectly well.” Plaintiff was focused on looking at her
husband’s vehicle. She was not looking at the sidewalk,
the conditions of her chosen path of travel, or the terrain in
front of her. The hole was visible to anyone approaching,
so long as they were keeping a proper lookout.
8. [sic] Plaintiff testified that she did not use the designated
crosswalk to get to the vehicle even though access to the
crosswalk was available. . . . [P]laintiff’s failure to use the
designated crosswalk and failure to pay attention to her
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surroundings, including the conditions of her path, when
crossing the median were the proximate cause of plaintiff’s
fall and were not reasonable considering the
circumstances. Based on the preponderance of the
evidence, plaintiff was contributorily negligent in causing
the fall into the storm drain.
....
11. . . . [P]laintiff failed to exercise the standard of care that
a person of ordinary prudence would demonstrate when
she chose to deviate from the marked crosswalk and run
across the grassy median without keeping a proper lookout.
Accordingly, the Commission concludes that plaintiff is
barred from recovery under the Tort Claims Act on the
basis of contributory negligence.
However, as Khatib has failed to specifically argue how these findings were
unsupported by record evidence, she has abandoned her purported evidentiary
challenge to these findings. See N.C. R. App. P. 28(b)(6). Nonetheless, despite Khatib
not mounting a proper substantial evidence challenge to the Commission’s findings,
our review reveals these findings were adequately supported by the record.
According to Khatib’s own testimony, when her husband arrived to pick her
up, it “wasn’t dark,” “[t]he weather was nice[,] and [she] could see perfectly well.”
When Khatib saw her husband’s car arrive, she was looking “toward[ ] the car” and
“could see [her husband] and . . . children,” but could not see “anything else in front
of [her],” including the “sidewalk.” Khatib confirmed that “at the time [she was]
approaching [her] husband’s vehicle [she] was looking at him and [her] children” and
was “not looking down at [her] feet” to see where she was walking. Khatib also
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confirmed that, rather than following the pedestrian-crosswalk path behind the car
in order to get to the passenger-side door, she cut through the grass median outside
of the crosswalk path to pass in front of the car. Having concluded the evidentiary
portions of these findings were supported by the record, we turn to whether these
findings supported the Commission’s conclusion that Khatib’s claim was barred by
her own contributory negligence.
In her brief, Khatib concedes that, as she “was in the process of being reunited
with her family at the conclusion of her exercise, she saw the family vehicle, [her
husband], and her children and was briefly distracted from watching where she was
going.” (Emphasis added.) Nonetheless, she relies on Kremer v. Food Lion, Inc., 102
N.C. App. 291, 295, 401 S.E.2d 837, 839 (1991) (“Although failure to discover an
obvious defect will usually be considered contributory negligence as a matter of law,
this general rule does not apply when circumstances divert the attention of an
ordinarily prudent person from discovering an existing dangerous condition.”
(citation omitted)), to support her argument that “competent and substantial
evidence mandates a finding of fact that [she] was not guilty of contributory
negligence inasmuch as her attention was understandably diverted while she was
exercising and it would have been likewise nearly impossible for her to see the
uncovered inlet until she was directly on top of it.” Kremer is distinguishable because
the evidence there showed the plaintiff was walking down a grocery-store aisle
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intended for customer foot traffic, and Food Lion had placed items above the aisle
intended to draw customer attention. After taking two steps into the aisle, the
plaintiff fell over misplaced dog food bags. Id. at 296, 401 S.E.2d at 839. Here,
contrarily, the evidence showed Khatib cut across a grass median outside the
designated pedestrian-crosswalk path, and no circumstances attributable to the
NCDOT’s conduct distracted Khatib’s attention. Webb controls this case.
In Webb, the plaintiff stopped his car at a rest area to purchase a newspaper.
180 N.C. App. at 466, 637 S.E.2d at 305. Although he saw a sidewalk for pedestrian
travel that led to the newspaper kiosk, the plaintiff chose a more direct path across
the grass and through a shrub bed covered in pine straw, where he was injured after
tripping over a hidden metal protrusion. Id. at 466–67, 637 S.E.2d at 305. As here,
the plaintiff sued the NCDOT for alleged negligence in failure to maintain the
grounds, and the Commission concluded his claim was barred by contributory
negligence. Id. at 467, 637 S.E.2d at 305. On appeal, we affirmed, determining the
findings supported an inference that the plaintiff “should have had constructive, if
not actual, knowledge that deviating from an intended walking path into pine straw
brings with it some danger of injury.” Id. at 469, 637 S.E.2d at 306. We determined
the “plaintiff clearly had the capacity to understand that his shortcut carried a safety
risk[,]” and affirmed the Commission’s decision to deny the claim based on the
plaintiff’s contributory negligence in deviating from the sidewalk. Id.
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Here, as in Webb, the Commission’s findings support a conclusion that Khatib
should have known that deviating from the intended pedestrian-crosswalk path onto
the grass median carried some danger of injury, and that her shortcut carried a safety
risk. Further, the findings establish, and Khatib conceded below and on appeal, that
she was distracted by her family and not looking where she was walking.
Accordingly, we hold the Commission’s findings support its conclusion that Khatib’s
claim was barred by her own contributory negligence, and affirm its decision and
order.
III. Conclusion
The Commission’s relevant challenged findings were supported by the record,
which in turn supported its challenged conclusion that Khatib’s claim against the
NCDOT was barred by her contributory negligence in deviating from the crosswalk
path to cut through the grass median and failing to keep a proper lookout where she
was walking. Accordingly, we affirm the Commission’s decision and order denying
Khatib’s claim on the basis of contributory negligence.
AFFIRMED.
Judges HUNTER, JR. and ZACHARY concur.
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