January 13, 2015


Motions handled, schedule set in tort claim
against DOT by Buxton motel owners


By IRENE NOLAN

At 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 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 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 negligence occurred.

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.

Donovan held in abeyance the defendants' motion to dismiss for violations of the statute of limitations.  He said the issue could be revisited in discovery.

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. 


RELATED STORIES

Cape Hatteras Motel owners file tort claims against DOT
NCDOT says it's not responsible for damages at Buxton motel


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