The North Carolina Department of Transportation (NCDOT) is one of the state’s largest agencies and its responsibilities include building, repairing, and operating all kinds of transportation within the state of North Carolina – i.e. highways, railroads, aviation, ferries, public transit, bike paths, and pedestrian walkways.

The department is led by the secretary of transportation who is a member of the governor’s cabinet.

N.C.G.S. § 143B-346 defines the purpose and functions of the NC DOT as follows:

The general purpose of the Department of Transportation is to provide for the necessary planning, construction, maintenance, and operation of an integrated statewide transportation system for the economical and safe transportation of people and goods as provided for by law. The Department shall also provide and maintain an accurate register of transportation vehicles as provided by statutes, and the Department shall enforce the laws of this State relating to transportation safety assigned to the Department. The Department of Transportation shall be responsible for all of the transportation functions of the executive branch of the State as provided by law except those functions delegated to the Utilities Commission and the Commissioners of Navigation and Pilotage as provided for by Chapter 76. The major transportation functions include aeronautics, highways, mass transportation, motor vehicles, and transportation safety as provided for by State law. The Department of Transportation shall succeed to all functions vested in the Board of Transportation and the Department of Motor Vehicles on July 1, 1977.

While the state and local governments are generally protected from all kinds of lawsuits based on both sovereign and governmental immunity which derived from the English concept that the “king can do no wrong,” the state has waived its immunity against tort claims as provided by N.C.G.S. § 143-291, which reads as follows:

(a) The North Carolina Industrial Commission is hereby constituted a court for the purpose of hearing and passing upon tort claims against the State Board of Education, the Board of Transportation, and all other departments, institutions and agencies of the State. The Industrial Commission shall determine whether or not each individual claim 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. If the Commission finds that there was negligence on the part of an officer, employee, involuntary servant or agent of the State while acting within the scope of his office, employment, service, agency or authority that was the proximate cause of the injury and that there was no contributory negligence on the part of the claimant or the person in whose behalf the claim is asserted, the Commission shall determine the amount of damages that the claimant is entitled to be paid, including medical and other expenses, and by appropriate order direct the payment of damages as provided in subsection (a1) of this section, but in no event shall the amount of damages awarded exceed the amounts authorized in G.S. 143-299.2 cumulatively to all claimants on account of injury and damage to any one person arising out of a single occurrence. Community colleges and technical colleges shall be deemed State agencies for purposes of this Article. The fact that a claim may be brought under more than one Article under this Chapter shall not increase the foregoing maximum liability of the State.

(a1) The unit of State government that employed the employee at the time the cause of action arose shall pay the first one hundred fifty thousand dollars ($150,000) of liability, and the balance of any payment owed shall be paid in accordance with G.S. 143-299.4.

 (b) If a State agency, otherwise authorized to purchase insurance, purchases a policy of commercial liability insurance providing coverage in an amount at least equal to the limits of the State Tort Claims Act, such insurance coverage shall be in lieu of the State’s obligation for payment under this Article.

 (c) The North Carolina High School Athletic Association, Inc., is a State agency for purposes of this Article, and its liability in tort shall be only under this Article. This subsection does not extend to any independent contractor of the Association. The Association shall be obligated for payments under this Article, through the purchase of commercial insurance or otherwise, in lieu of any responsibility of the State or The University of North Carolina for this payment. The Association shall be similarly obligated to reimburse or have reimbursed the Department of Justice for any expenses in defending any claim against the Association under this Article.

 (d) Liability in tort of the State Health Plan for Teachers and State Employees for noncertifications as defined under G.S. 58-50-61 shall be only under this Article.

The Industrial Commission has exclusive, original jurisdiction over claims covered by the Tort Claims Act. Payments by the state under the Tort Claims Act are limited to one million dollars ($1,000,000.00) as provided by N.C.G.S. § 143-299.2:

(a) The maximum amount that the State may pay cumulatively to all claimants on account of injury and damage to any one person arising out of any one occurrence, whether the NC General Statutes – Chapter 143 Article 31 7 claim or claims are brought under this Article, or Article 31A or Article 31B of this Chapter, shall be one million dollars ($1,000,000), less any commercial liability insurance purchased by the State and applicable to the claim or claims under G.S. 143-291(b), 143-300.6(c), or 143-300.16(c).

(b) The fact that a claim or claims may be brought under more than one Article under this Chapter shall not increase the above maximum liability of the State.

Collins Law Firm along with H. Mitchell Baker, III, have experience in bringing action under the Tort Claims Act based on the NCDOT’s failure to have adequate signage or warnings in place to notify and warn motorists of upcoming intersections, or based on the NC DOT’s breach of its duty to keep the public streets open for travel and free from unnecessary obstructions.

If you or someone you know and care about has been injured due to negligence by NCDOT, please call Collins Law Firm at 910-793-9000 for a free confidential consultation.

By Jana H. Collins

When you get to the Wilmington International Airport, you will notice a huge display of an American flag in the welcoming area.

Next to the flag is a plaque, which reads as follows:

**Operation Noble Eagle**

American Flag Flown At the

Pentagon Crash Site

Washington, DC

September 13-22, 2001

Donated By

The Wilmington Rotary Club

To Honor the Service of

The Salvation Army To The

Victims of The September 11 Tragedy

As Well As Its Continued Service To

The Citizens of New Hanover County.

May The Display of This Flag At ILM

Serve As A Constant Reminder of That

Tragic Day And The Effect It Has Had

And Will Continue To Have On

Each And Every American.
“SERVICE ABOVE SELF”

Julie A. Wilsey, AAE, Deputy Director, Wilmington International Airport, shared the following information:

The Salvation Army leader, Major Robert Vincent, and several from the local organization in Wilmington went to Washington, DC to assist with recovery operations at the Pentagon.  While they were there, they flew several flags over the site.  The lead volunteer brought the flag back to Wilmington as gift to the residents and volunteers who helped with post 9/11 recovery.

The Salvation Army Leader was a member of the Downtown Rotary Club.  In discussion with several Rotarians, they tried to think of a place in Wilmington where the flag could be displayed and have a symbolic message. One Rotarian, Ron Gumm, suggested the airport near the security check point.  Ron was also a part-time employee at ILM for coordinating Air Shows and other Special Events.

I was the Facility Director at ILM, and in 2001-2002 we were planning a renovation of the airport terminal.  We decided to have a case designed in the project to hold the flag for all to see as they go through security.  It is a perfect backdrop to the process, and it has significant meaning because the events of 9/11 changed airport security and created the TSA.  Our renovation finished in May 2004 and the flag was part of the Grand Opening ceremony.  Also, the Downtown Rotary Club presented the plaque for the flag.

WRAL posted on September 13, 2001, that the Salvation Army’s North and South Carolina Division assigned counseling team four mobile kitchen units and related personnel to Washington, DC.

Major Richard Watts, Commanding Officer for the Salvation Army of Wilmington, NC, provided more insight about the role of the Salvation Army during the 9/11 after mess. Major Watts himself was the Commanding Officer of the Salvation Army of Columbia, SC at that time and was assigned to serve the Pentagon crash site where he arrived in the evening of September 12, 2001. However, because this site was not just a disaster, but a crime scene, and because the Pentagon is our federal defense headquarters, Major Watts had to undergo a FBI clearance which lasted for five hours. Further, the site was secured by two fences and before entering the secured area, at first one had to undergo two searches, later on four searches including one by canines. While the Salvation Army mainly provides food and emotional and spiritual support for families and friends of disaster victims, they also provided America flags to cover the coffins of the victims. Major Watts also reported that American flag were flown throughout the Pentagon, along the fences and hallways. However, due to the site being a crime scene, no one was allowed to take pictures. Major Watts witnessed and incident where a FBI agent confronted a man who took pictures regardless, through him to the ground and confiscated the footage.

The display of the flag has a great meaning especially to everyone who served during the 9/11 after mess as well as our service men and women who come through Wilmington International Airport.

Anthony D’Erasmo, Public Safety Officer at Wilmington International Airport, is a retired New York City Police Officer and he was one of the first responders to the World Trade Center, said that having the flag displayed in the welcoming area of the airport is a reminder of the event of 9/11 and a sign of appreciation of those who served and those who serve our country.

By Sarah Morgan Collins (4^th Grade AIG Local History Project)

Since 1935, in North Carolina, there has been a statutory lien upon sums of money recovered as damages for personal injury claims. “This lien is in favor of any person, corporation, State entity, municipal corporation or county to whom the person so recovering, or the person in whose behalf the recovery has been made, may be indebted for any drugs, medical supplies, ambulance services, services rendered by any physician, dentist, nurse, or hospital, or hospital attention or services rendered in connection with the injury in compensation for which the damages have been recovered. Where damages are recovered for and in behalf of minors or persons non compos mentis, the liens shall attach to the sum recovered as fully as if the person were sui juris.” . N.C.G.S § 44-49.

N.C.G.S § 44-50 provides that “lien provided for shall in no case, exclusive of attorneys’ fees, exceed fifty percent (50%) of the amount of damages recovered.” North Carolina Baptist Hospitals, Inc. v. Crowson, 155 N.C.App. 746, 573 S.E.2d 922 (N.C.App. 2003) provided that the medical providers did not have to be paid in a pro rata manner. That case held that: “The dispositive issue on appeal is whether sections 44-49 and 44-50 of the North Carolina General Statutes prohibit an attorney from disbursing funds recovered from the settlement of a personal injury lawsuit in a non-proportional manner where there are multiple medical service providers holding equally valid liens upon such settlement funds and insufficient funds to compensate all lien holders. Because we conclude that sections 44-49 and 44-50 do not require a pro rata disbursement of funds, we affirm the order of the trial court granting summary judgment in favor of defendant.”

However, in 2003, the North Carolina Legislature passed a new section which requires pro rata distribution.   N.C.G.S. § 44-50.1, entitled “Accounting of disbursements; attorney’s fees to enforce lien rights” provides that “Notwithstanding any confidentiality agreement entered into between the injured person and the payor of proceeds as settlement of compensation for injuries, upon the lienholder’s written request and the lienholder’s written agreement to be bound by any confidentiality agreements regarding the contents of the accounting, any person distributing funds to a lienholder under this Article in an amount less than the amount claimed by that lienholder shall provide to that lienholder a certification with sufficient information to demonstrate that the distribution was pro rata and consistent with this Article. If the person distributing settlement or judgment proceeds is an attorney, the accounting required by this section is not a breach of the attorney-client privilege.”  N.C.G.S. § 44-50.1.  “The certification under subsection (a) of this section shall include a statement of all of the following: (1) The total amount of the settlement. (2) The total distribution to lienholders, the amount of each lien claimed, and the percentage of each lien paid. (3) The total attorney’s fees.

These statutes are part of the laws regulating the pursuit and settlement of personal injury claims in North Carolina. If you or someone you know has been injured in an automobile accident through no fault of their own, call Collins Law Firm for a free consultation at: 910-793-9000.

North Carolina law provides that the owner of a “dangerous dog” can be strictly liable for injuries from a dog bite under N.C. Gen. Stat. §67-4.4. In order to recover damages, the plaintiff must prove that the dog that bit them was a “dangerous dog.” N.C.G.S §67-4.1(a)(1) defines ‘dangerous dog’ as:

1. A dog that:
   1. Without provocation has killed or inflicted severe injury on a person; or
   2. Is determined by the person or Board designated by the county or municipal authority responsible for animal control to be potentially dangerous because the dog has engaged in one or more of the behaviors listed in subdivision (2) of this subsection.
2. Any dog owned or harbored primarily or in part for the purpose of dog fighting, or any dog trained for dog fighting. N.C.G.S. §67-4.1(a)(1)(d) provides exceptions for the following dogs from being classified as ‘dangerous dogs’ or ‘potentially dangerous dogs’ under the statute:

(1) A dog being used by a law enforcement officer to carry out the law enforcement officer’s official duties;

(2) A dog being used in a lawful hunt;

(3) A dog where the injury or damage inflicted by the dog was sustained by a domestic animal while the dog was working as a hunting dog, herding dog, or predator control dog on the property of, or under the control of, its owner or keeper, and the damage or injury was to a species or type of domestic animal appropriate to the work of the dog; or

(4) A dog where the injury inflicted by the dog was sustained by a person who, at the time of the injury, was committing a willful trespass or other tort, was tormenting, abusing, or assaulting the dog, had tormented, abused, or assaulted the dog, or was committing or attempting to commit a crime.

N.C.G.S § 67-4.1 provides that certain dogs may be classified as “potentially dangerous dogs” by a “Board designated by the county or municipal authority responsible for animal control.” N.C.G.S § 67-4.1(a)(2) also provides that the Board or a person should consider the following factors to determine if a dog is potentially dangerous:

1. Inflicted a bite on a person that resulted in broken bones or disfiguring lacerations or required cosmetic surgery or hospitalization; or
2. Killed or inflicted severe injury upon a domestic animal when not on the owner’s real property; or
3. Approached a person when not on the owner’s property in a vicious or terrorizing manner in an apparent attitude of attack.

If a plaintiff is bitten by a “dangerous dog,” the owner of the dog may be held strictly liable for damages.

Negligence

Even if the dog is not determined to be a “dangerous dog,” one can still recover damages under the theory of negligence. To prove negligence, the plaintiff must show that the defendant was keeping an “animal with the knowledge of its viciousness.” Lee v. Rice, 154 N.C. App. 471, 472 (2002).

Under this theory, a plaintiff can recover compensation for their damages if they can prove two elements: “(1) that the animal was dangerous, vicious, mischievous, or ferocious, or one termed in law as possessing a vicious propensity; and (2) that the owner or keeper knew or should have known of the animal’s vicious propensity, character, and habits.” Lee v. Rice, 154 N.C. App. 471, 472 (2002). (quoting Sellers v. Morris, 233 N.C. 560,561 (1951).)

Negligence Per Se

Negligence per se may apply if the owner or keeper of the dog had violated a local ordinance or state law. In Swaney v. Shaw, the court found that ‘the violation of a statute which imposes a duty upon the defendant in order to promote the safety of others, including the plaintiff, is negligence per se, unless the statute, itself otherwise provides.’ 27 N.C. App. 631, 635 (1975). (quoting Ratliffe v. Power Co., 268 N.C. 605, 610 (1966).)

Many counties and cities have local laws regarding dangerous dogs. N.C.G.S. § 130A-200 provides that: “A local health director may declare an animal to be vicious and a menace to the public health when the animal has attacked a person causing bodily harm without being teased, molested, provoked, beaten, tortured or otherwise harmed. When an animal has been declared to be vicious and a menace to the public health, the local health director shall order the animal to be confined to its owner’s property. However, the animal may be permitted to leave its owner’s property when accompanied by a responsible adult and restrained on a leash.”

If you have sustained injuries after having been bitten by a dog or other dangerous animal, call Collins Law Firm for a consultation at 910-793-9000. We have represented victims of dog bites and recovered money damages for our clients, and we will be happy to talk with you about your case.

If you are involved in a car crash or automobile accident through no fault of your own, and you are injured, it is critical that you seek medical attention immediately. If emergency medical services are called to the scene, they can help you determine whether or not you need to be transported by an ambulance or if it would be safe for you to seek alternative transportation to the hospital. Many times, people can sustain injuries which are not immediately apparent and for which the symptoms may not occur until a later time. All reasonably necessary medical expenses for injuries caused by the accident should be covered by the insurance carrier for the person who caused the accident. In addition to paying for medical expenses, they can pay for any other expenses caused by the accident and for pain and suffering for injuries caused by the accident.

If it does not compromise your medical condition or your ability to seek medical attention for your injuries, taking pictures of the property damage at the scene and/or any injuries can help document the facts to help support your claim for monetary or money compensation. Anyone injured in an automobile accident which is not caused by their fault should consult with an attorney experienced in personal injury matters as soon as possible, as long as it does not delay seeking and obtaining reasonable medical attention.

Collins Law Firm regularly represents victims of car wrecks and helps maximize monetary or money damage recoveries for our clients. If you or someone you know and care about has been injured in a car wreck, please call Collins Law Firm at 910-793-9000 for a free consultation.

Hurricane Earl has passed our area, and thankfully without inflicting much serious damage to our area.

Now we are heading into a busy Labor Day weekend. The American Automobile Association (AAA) is predicting a 10% increase in travelers on the road this year over last year. They predict that about 34.4 million people are likely to take trips of at least 50 miles.

That means that everyone needs to take greater precautions and plan for heavier traffic and slower travel paces. Law enforcement is likely to be stepped up this weekend and many people will likely receive speeding tickets or other traffic citations, and there are likely to be more accidents on the road than on non-holiday weekends. There are also likely to be impaired drivers and boaters who will receive DWI/DUI’s and BWI/BUI’s (boating while impaired/under the influence).

Anyone who receives a ticket or other criminal charges, or who is involved in an accident can call Collins Law Firm for a consultation about what we can do to help. We have been serving Southeastern North Carolina around the Wilmington, NC area for over ten years, representing people charged with traffic tickets or other criminal charges and people injured in traffic accidents or crashes.

Please be safe and have a wonderful weekend!

Collins Law Firm