Motions handled, schedule set in tort claim
against DOT by Buxton motel owners
By IRENE NOLAN
a pre-trial hearing last week, a deputy commissioner for the North
Carolina Industrial Commission handled several motions and set a
schedule for proceeding in the tort claim complaint that Carol and Dave
Dawson of the Cape Hatteras Motel in Buxton have filed against the
Department of Transportation.
The legal action was filed in
November with the 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.
The Dawsons are asking that
DOT pay $1 million for damages to their motel that they say were
caused by the agency's negligence. That 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
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 its 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
Then the agency denied almost all of the
Dawsons' claims and presented a defense that includes contributory
negligence by the motel owners.
At the pre-trial hearing in
Williamston, N.C., before Deputy Commissioner J. Brad Donovan, DOT
asked that any individuals named in the complaint be dismissed, saying
that the commission lacks jurisdiction over such claims.
The plaintiffs voluntarily withdrew the complaints against Conti, Tata, and Jennings, and Donovan dismissed them with prejudice.
held in abeyance the defendants' motion to dismiss for violations of
the statute of limitations. He said the issue could be revisited
Lawyers for the Dawsons moved for an order
requiring DOT to participate in mediation. Donovan denied the motion,
instead encouraging voluntary mediation, if appropriate, following the
completion of discovery.
A discovery schedule was agreed on by all parties:
- All written discovery shall be completed by April 15.
- Plaintiffs shall designate their expert witnesses by May 15 and complete the depositions of their experts by July 1.
- Defendant shall designate their expert witnesses by Aug. 1 and complete the depositions of their experts by Sept. 15.
- The parties shall designate any rebuttal expert witnesses and complete those depositions by Nov. 15.
- All dispositive motions shall be filed no later than Dec. 15.
On this schedule, the tort claim complaint should be ready for hearing on or after Jan. 1, 2016.
The hearing is expected to take no more than five days and will be in the Williamston area.
Cape Hatteras Motel owners file tort claims against DOT
NCDOT says it's not responsible for damages at Buxton motel