December 16, 2014



UPDATE: NCDOT says it's not responsible
for damage at Buxton motel

By IRENE NOLAN

The North Carolina Department of Transportation has answered the claims of Dave and Carol Dawson, owners of Cape Hatteras Motel in Buxton, in a legal action the couple filed on Nov. 10.

In its six-page response, dated Dec. 10, special deputy attorney general Melody R. Hairston answered the charges filed against DOT under the state's Tort Claims Act with denials, made a motion to dismiss the case, and presented a defense that includes contributory negligence by the motel owners.

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

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

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

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 affidavit goes on to claim that rather than correcting the cause of the erosion and allowing the beaches to rebuild to protect the highway and Buxton property owners, NCDOT bulldozed sand on the beaches just north of Buxton "into long, tall dune-dikes parallel to the ocean shore" that ended just north of the Cape Hatteras Motel. The "dune dikes," the claim says "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."

In the response, DOT first asked that the motion be dismissed because torts claims must be filed within three years from the date of the action and the plaintiffs failed to specify all of the time periods during which the alleged negligence occurred.

As to the specific claims, the DOT response denies:

That the agency has contracted with or authorized the U.S. Army Corps of Engineers to dredge the area around the Bonner Bridge and/or Oregon Inlet.

  • That any beach erosion has been the result of any negligence on the part of the agency.
  • That any alleged damage to the Cape Hatteras Motel has been the result of agency negligence.
  • That any damages allegedly suffered by the plaintiffs are the result of any action on the part of the agency, its employees, officers, or agents.

Even though DOT denies all of the claims, it presents four defenses that it says would prohibit the Dawsons from recovering damages.

They include:

  • Contributory negligence.  The response says that the motel owners "failed to take reasonable efforts to protect their property from sand and/or water damage."
  • Failure to mitigate damages. The response says the motel owners failed to mitigate their alleged damages by taking reasonable efforts to protect their property.
  • Act of God. The response says the any damage or injuries to the plaintiffs were a result of an "act of God and of nature."

Finally, DOT asks that the motel owners pay the costs of the legal action.

The tort claim next heads to a pre-trial hearing on Wednesday, Jan. 7, before deputy commissioner J. Brad Donovan in Williamston.

At the pre-trial hearing, motions to dismiss will be addressed and, if applicable, a discovery schedule will be set.  The claim then goes on the Industrial Commission's docket for a hearing.

FOR MORE INFORMATION

Click here to read DOT's answer to the tort claim, motions to dismiss, and defenses.




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