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Smith v. N.C. Department of Natural Resources & Community Development12/7/1993
On 22 June 1989 plaintiff filed a claim under the North Carolina State Tort Claims Act against the North Carolina Department of Natural Resources and Community Development (hereafter "the State"), seeking $100,000 in damages for the wrongful death of her husband, Richard Carroll Smith. The case was heard in December 1990 before Deputy Commissioner Roger L. Dillard of the North Carolina Industrial Commission. Commissioner Dillard entered an order denying plaintiff's claim on 7 May 1991 after concluding that the State was not negligent and that plaintiff's husband was negligent and the sole and proximate cause of his own death. The full Commission affirmed and adopted this decision on 8 June 1992, and plaintiff now appeals from this order.
On 29 May 1988 plaintiff, her husband, and son, Andrew, were visiting Stone Mountain State Park in Wilkes County, North Carolina. While at the Park they visited Beauty Falls. The water at Beauty Falls flows over a dome-shaped rock before falling 200 feet. The evidence shows that the Smiths had been to Beauty Falls in April 1988, and were aware of the topography of the area and the magnitude of the flow. The Smiths picnicked above the falls, where there is a warning sign which says "Danger, Falls Below." Plaintiff testified that other people were in the same area. Plaintiff explained that they did not feel they were in a dangerous area, because the ground was level and the water level was low due to a drought that summer. Richard Smith and his son walked around a granite rock and played in the water after lunch, while plaintiff napped. Plaintiff awoke to her son's screams, and learned that
her husband had slid on the rock and gone over the falls. Richard Smith died as a result of his fall.
On appeal plaintiff argues the full Commission erred in simply adopting the decision of the deputy commissioner without conducting its own hearing and entering its own findings and Conclusions. Plaintiff also argues many of the findings of fact and Conclusions of law are not supported by the evidence. Finally, plaintiff argues the hearing commissioner and the full Commission erred in failing to admit several of her exhibits into evidence.
I. Review by Full Commission
Plaintiff's initial contention is that the full Commission failed to comply with N.C.G.S. §§ 143-291 and 143-292 by simply adopting the decision of the deputy commissioner without conducting its own hearing and making its own findings of fact and Conclusions of law. We disagree. Deputy commissioners have full authority under the Tort Claims Act to carry out the purposes of the Act, and are vested with the same powers as members of the Industrial Commission. According to section 143-296,
he Industrial Commission is authorized to appoint deputies and clerical assistants to carry out the purpose and intent of this Article, and such deputy or deputies are hereby vested with the same power and authority to hear and determine tort claims . . . as is by this Article vested in the members of the Industrial Commission.
N.C.G.S. § 143-296 (1990). The statute governing appeals to the full Commission states that the full Commission "may amend, set aside, or strike out the decision of the hearing commissioner and may issue its own findings of fact and Conclusions of law." § 143-292 (1990). We find that the legislature's use of the word "may" indicates that although the full Commission is permitted to enter its own findings of fact and Conclusions of law, it is not required to do so.
Thus, because deputy commissioners have the same powers as the full Commission and theref
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