November 25, 2014

Cape Hatteras Motel owners
file tort claim against NCDOT


Dave and Carol Dawson, owners of the Cape Hatteras Motel in north Buxton, have filed a tort claim against the North Carolina Department of Transportation that asks for $1 million in damages.

The legal action was filed with the North Carolina Industrial Commission, which is charged under the state's Tort Claims Act with acting as a court to hear and determine claims filed against state agencies, such as NCDOT.

The $1 million in damages that the Dawsons are asking for is the maximum amount available under the Tort Claims Act.

In addition to NCDOT, the claim names former Secretary Eugene Conti, current Secretary Tony Tata, and Division One Engineer, Jerry Jennings.

In the Claim and Affidavit that the Dawsons filed with the Industrial Commission, they claim that negligence on the part of NCDOT, while executing its duties to maintain Highway 12, has caused them loss of value of their property, lost business income, physical damage to buildings, cost of sand removal, and emotional distress.

The claim states that for several years, NCDOT has contracted with or authorized the U.S. Army Corps of Engineers to dredge the area around the Bonner Bridge over Oregon Inlet, which has interrupted the littoral flow of sand down Hatteras Island, starving the beaches in and near Buxton and causing beach erosion.

"The interruption of littoral flow caused by dredging," the claim states, "can be mitigated by placing the dredged material on the downstream side of the inlet so that it can continue down the coast to renourish beaches, like the one in Buxton, to the south. The NCDOT failed to specify this method of dredging and has refused to require this sand replacement, instead allowing the sand to be dumped in deep water where it will not flow down the coast."

The affidavit goes on to say that as the beaches have eroded, "due to NCDOT's negligence regarding the dredging process, N.C. 12 has been threatened and damaged by the ocean."

"Rather than correcting the cause of the erosion and allowing the beaches to rebuild, thereby protecting both N.C. 12 and Hatteras Island property owners, NCDOT bulldozed sand on the beaches just north of Buxton into long, tall dune-dikes parallel to the ocean shore. NCDOT ended these dune-dikes just north of the Cape Hatteras Motel. Therefore, NCDOT not only failed to protect the motel and the town of Buxton, but it actually redirected the force and flow of water into the motel property.  The storm waters collide with the dune-dikes and flow along the dune-dikes until they find an outlet -- an outlet directly into the Cape Hatteras Motel."

The claim says the redirected storm waters have caused destruction at the motel at least 14 days this year -- Jan. 4, March 7, March 18, April 20, July 3-4, Aug. 27, Oct. 2-3, and Nov. 2-3 -- as well as other dates back over several years.

It also states that NCDOT made matters worse by raising the roadbed of the highway at the motel property, trapping waters behind the raised roadbed. And, finally, it says that drains installed by DOT have negligently failed because the agency has not kept them clean and functional.

The attorney for the Dawsons is James L. Conner II, who is with the law firm of Calhoun, Bhella, & Sechrest in Durham, N.C.

Carol Dawson said today that the legal action against DOT has been "20 years coming."

"I've begged them to address this for years," she said, "and it never gets anywhere."

She said that she and her husband have never been involved in any litigation before, and that this claim is "not about the money."

"We've lost millions," she said.

We could have gone in a different direction and sued for a lot more money.

"It took us a very long time to reach this decision," she added.

Dawson said the couple started the action back in March and that the "timing was out of our hands."

Currently, DOT is involved in negotiations with the Southern Environmental Law Center about replacing the Bonner Bridge.  The agency is also one of the agencies involved in Dare County's plan to nourish the beach in north Buxton."

"Unfortunately, the timing came when it did," she said.

An NCDOT spokesperson said the agency does not comment on legal action.

According to the Industrial Commission, the Attorney General's office will decide whether or not NCDOT is legally liable and whether voluntary settlement can be made. If liability is denied, the Attorney General's office will file an answer on behalf of DOT within 30 days.

After the Attorney General's response, the case will go on the pre-trial hearing docket. Cases are heard by the five-members of the Industrial Commission.

Click here to read a copy of the Tort Claim and Affidavit.

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