IN THE COURT OF APPEALS OF NORTH CAROLINA

2022-NCCOA-553

No. COA21-630

Filed 16 August 2022

North Carolina Industrial Commission, I.C. Nos. TA-26216 & TA-27059

Estate of KIE LANDON JOHNSON, by and through WILLIAM JOHNSON and 

MONA ELLISON, Administrators of the Estate, Plaintiffs,

v.

GUILFORD COUNTY BOARD OF EDUCATION, Defendant.

OLIVIA BROWN, by and through her GUARDIAN AD LITEM, EMILY HOEPFL, 

and EMILY HOEPFL, Individually, Plaintiffs,

v.

GUILFORD COUNTY BOARD OF EDUCATION, Defendant.

Appeal by Plaintiffs from decision and order entered 10 June 2021 by the Full 

Commission of the North Carolina Industrial Commission. Heard in the Court of 

Appeals 10 May 2022.

Frazier, Hill & Fury, R.L.L.P., by Torin L. Fury, and R. Steve Bowden & 

Associate, P.C., by Edward P. Yount, for Plaintiffs-Appellants.

Attorney General Joshua H. Stein, by Special Deputy Attorney General Carl 

Newman, for Defendant-Appellee.

INMAN, Judge.
JOHNSON V. GUILFORD CTY. BD. OF EDUC.

2022-NCCOA-553

Opinion of the Court

¶ 1 This appeal arises out of a head-on collision between a car and a school bus on 

a rural road, which killed one passenger and injured others. Plaintiffs contend the 

Commission erred in concluding: (1) the bus driver was not negligent by application 

of the doctrine of sudden emergency; and (2) Plaintiffs failed to establish the bus 

driver had the last clear chance to avoid the collision. After careful review, we affirm 

the decision and order of the Commission.

I. FACTUAL & PROCEDURAL HISTORY

¶ 2 The record below tends to show the following:

¶ 3 On 26 August 2015, at approximately 4:30 p.m., Lakeisha Miller (“Ms. Miller”)

was driving a Guilford County school bus north on Knox Road, a two-lane road 

divided by a double yellow, no-passing center line in a rural part of Guilford County, 

when Jacob Larkin (“Mr. Larkin”), an 18-year-old high school student, drove in the 

wrong direction in Ms. Miller’s lane and crashed his Toyota Camry head-on into the 

bus. The collision killed one of the car’s passengers, Kie Johnson, and injured Mr. 

Larkin, the car’s remaining passengers, including Olivia Brown, and Ms. Miller. At 

the time of the collision, Ms. Miller had one minor passenger on the bus. Mr. Larkin 

was impaired from a mixture of marijuana and Xanax, “was driving erratically,” and

had been “reckless” before the crash.

¶ 4 When Ms. Miller first saw Mr. Larkin’s vehicle traveling toward her in the 
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wrong lane, she immediately took her foot off the gas pedal and slowed down to allow 

him to return to the correct lane. She sounded the bus’s horn twice to alert the driver. 

As the car approached, Ms. Miller noticed that the driver was slumped over in the 

driver’s seat and appeared to be reaching down, looking at the floor of his car. The 

shoulder of the road to the bus’s right was wide and grassy but sloped down into a 

ditch. Ms. Miller considered turning right to avoid a collision but was worried the 

bus would overturn in the uneven ditch or crash into the fence running parallel to the 

road on the right. She could see there was no traffic behind Mr. Larkin, so “at the 

last minute,” she maneuvered the bus left––toward the oncoming lane of traffic that 

the approaching car should have been in––to avoid the collision.

¶ 5 Ms. Miller had driven buses for Guilford County Schools for approximately ten 

years. She had obtained her commercial driver’s license in 2005, completed the 

State’s requisite training courses for school bus traffic and safety, and renewed her

certification every few years. North Carolina school bus drivers are trained that 

when an approaching driver is in the wrong lane, that driver’s natural response will 

be to return to his or her correct lane if the driver realizes what has happened and it 

may be best to move right. The instruction “Steering to Avoid A Crash” further 

provides: “Top heavy vehicles such as school buses may turn over . . . . If something 

is blocking your path, the best direction to steer will depend on the situation . . . . If 

the shoulder is clear, going right may be best.” Knox Road was on Ms. Miller’s regular 
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Opinion of the Court

route for two to three years, and she had driven the road at least one hundred times, 

if not more.

¶ 6 On 11 April and 23 July 2018, Plaintiffs, administrators of Kie Johnson’s estate 

and guardian for Olivia Brown, respectively, filed claims against the Guilford County 

Board of Education (the “Board”) for $1,000,000 in damages under the Tort Claims 

Act with the North Carolina Industrial Commission. Plaintiffs alleged: (1) Ms. 

Miller’s maneuver of the school bus was not sufficient to avoid colliding with Mr. 

Larkin’s vehicle; and (2) Ms. Miller was negligent when she failed to recognize the

danger of Mr. Larkin’s oncoming car, honk her horn to warn Mr. Larkin, maintain 

proper control of the school bus, maintain a proper lookout, and crossed left of center 

while operating the Board’s bus. The Board denied all allegations of negligence and 

raised defenses of (1) contributory negligence, (2) intervening, superseding, and 

criminal acts of Mr. Larkin, (3) intervening and superseding negligence and acts of 

the surviving car passengers, and third parties, and (4) the sudden emergency 

doctrine.

¶ 7 The matter was bifurcated on the issues of liability and damages, and these 

consolidated claims came on for trial before a Deputy Commissioner on 17 June 2019. 

The Deputy Commissioner denied Plaintiffs’ claims and Plaintiffs appealed to the 

Full Commission (the “Commission”).

¶ 8 Reviewing the evidence, the Commission concluded Ms. Miller’s evasive 
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Opinion of the Court

actions were proper and lawful because the bus was not left of the center yellow lines 

at the point of impact and, even if it was, Mr. Larkin’s oncoming car was an 

obstruction that permitted Ms. Miller to deviate from the right lane of traffic. The 

Commission concluded Ms. Miller’s actions were further insulated from liability 

under the doctrine of sudden emergency, and she “did not breach a duty of care owed 

to Plaintiffs.” Even if Ms. Miller was negligent, the Commission alternatively 

concluded Plaintiffs were barred from recovery because they were contributorily 

negligent for “ignor[ing] unreasonable risks or dangers which would have been 

apparent to a prudent person exercising ordinary care for his own safety” and failing 

to leave Mr. Larkin’s car when they had the opportunity prior to the collision. Finally, 

the Commission concluded that the Board was not liable under the doctrine of last 

clear chance because Plaintiffs “failed to prove that Ms. Miller was negligent in the 

operation of her school bus” and “that Ms. Miller, by the exercise of reasonable care, 

‘failed or refused to use every reasonable means’ at her command to avoid the 

impending injury.” Plaintiffs appeal.

II. ANALYSIS

A. Standard of Review

¶ 9 We review the Commission’s decision under the Tort Claims Act “‘for errors of 

law only under the same terms and conditions as govern appeals in ordinary civil 

actions, and the findings of fact of the Commission shall be conclusive if there is any 
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competent evidence to support them.’” Simmons v. Columbus Cty. Bd. of Educ., 171 

N.C. App. 725, 727-28, 615 S.E.2d 69, 72 (2005) (quoting N.C. Gen. Stat. § 143-293 

(2003)). “As long as there is competent evidence in support of the Commission’s 

decision, it does not matter that there is evidence supporting a contrary finding.” Id.

at 728, 615 S.E.2d at 72 (citation omitted). “Under the Tort Claims Act, when 

considering an appeal from the Commission, our Court is limited to two questions: 

(1) whether competent evidence exists to support the Commission’s findings of fact, 

and (2) whether the Commission’s findings of fact justify its conclusions of law and 

decision.” Fennell v. N.C. Dep’t of Crime Control & Pub. Safety, 145 N.C. App. 584, 

589, 551 S.E.2d 486, 490 (2001) (quotation marks and citation omitted).

¶ 10 Where the Commission’s factual findings are unchallenged, they are binding 

on appeal. Medlin v. Weaver Cooke Constr., LLC, 367 N.C. 414, 423, 760 S.E.2d 732, 

738 (2014). “In addition, findings of fact to which error is assigned but which are not 

argued in the brief are deemed abandoned.” Strezinski v. City of Greensboro, 187 N.C.

App. 703, 706, 654 S.E.2d 263, 265 (2007) (citation omitted).

B. The Doctrine of Sudden Emergency

¶ 11 Plaintiffs assert two challenges to the Commission’s application of the sudden 

emergency doctrine: (1) Ms. Miller contributed to the sudden emergency by failing to 

exercise due care when she accelerated towards the collision and swerved left, in 

violation of her training; and (2) the oncoming collision did not require Ms. Miller to
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act instantly by swerving. Neither argument is persuasive.

¶ 12 Plaintiffs have not challenged any of the Commission’s findings of fact, so they 

are binding on this Court. See Medlin, 367 N.C. at 423, 760 S.E.2d at 738. Further, 

though Plaintiffs’ proposed issues on appeal included challenges to findings 38 and 

39, their brief does not challenge whether either finding is supported by competent 

evidence. Therefore, they have abandoned any challenge to these findings. See 

Strezinski, 187 N.C. App. at 706, 654 S.E.2d at 265.

¶ 13 We consider, based on the binding findings of fact and applicable law, whether 

the Commission erred in applying the doctrine of sudden emergency. See Simmons, 

171 N.C. App. at 727, 615 S.E.2d at 72. For the reasons explained below, we affirm 

the Commission.

1. The emergency compelled Ms. Miller to act instantly.

¶ 14 Our courts have defined an emergency situation “as that which compels one to 

act instantly to avoid a collision or injury.” Keith v. Polier, 109 N.C. App. 94, 98, 425 

S.E.2d 723, 726 (1993) (cleaned up).

¶ 15 Plaintiffs contend the emergency did not require Ms. Miller to act instantly

because she had between 10.9 and 15.6 seconds to react from the moment she first 

observed Mr. Larkin’s vehicle in her lane until the point of impact. In its decision 

and order, the Commission explicitly considered the timing of the collision and 

described an accident reconstruction expert’s testimony on this issue: “Ms. Miller had 
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10.9 to 15.6 seconds to first perceive and react, slow the bus to a stop, and then 

accelerate to impact speed[,]” and she “had 5 seconds from slowing the bus to the 

point of impact.” (Emphasis added). The Commission further found that Ms. Miller 

had “less than five seconds” to act after realizing that the oncoming vehicle would not 

correct its path:

38. . . . . When it became apparent that Mr. Larkin was 

slumped over the steering wheel and Mr. Larkin would not 

return his vehicle to the proper lane, Ms. Miller had less 

than five seconds to choose to either (1) steer right and risk 

overturning the school bus in the ditch with her student 

passenger, or (2) steer left into the empty lane.

We are bound by the Commission’s unchallenged findings, Medlin, 367 N.C. at 423, 

760 S.E.2d at 738, and we will not reweigh the evidence, Adams v. AVX Corp., 349 

N.C. 676, 681, 509 S.E.2d 411, 414 (1998) (“[O]n appeal, this Court does not have the 

right to weigh the evidence and decide the issue on the basis of its weight.” (quotation 

marks and citation omitted)). See also Simmons, 171 N.C. App. at 728, 615 S.E.2d at 

72.

¶ 16 Our Court has held that reacting in less than five seconds qualifies as acting 

“instantly” to avoid injury for the purposes of the sudden emergency doctrine. See, 

e.g., Schaefer v. Wickstead, 88 N.C. App. 468, 471-72, 363 S.E.2d 653, 655 (1988)

(holding an instruction on the doctrine of sudden emergency was warranted when the 

defendant had between 4.55 and 5.5 seconds to avoid hitting a pedestrian with his 
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vehicle).

¶ 17 The decisions Plaintiffs cite––Keith v. Polier, 109 N.C. App. 94, 425 S.E.2d 723

(1993), and Colvin v. Badgett, 120 N.C. App. 810, 463 S.E.2d 778 (1995)––are 

factually distinguishable. In Keith, we held the defendant was not entitled to the 

benefit of an instruction on the sudden emergency doctrine because the alleged 

emergency was not sudden where he rear-ended a car stopped at a traffic signal, 109 

N.C. App. at 99-100, 425 S.E.2d at 726-27, and, in Colvin, we held that the driver’s 

“fear and apprehension upon seeing his sister-in-law’s truck on the side of the road, 

while understandable, did not give rise to a situation where he had to act instantly 

to avoid injury to himself or another” to warrant a jury instruction on the doctrine of 

sudden emergency, 120 N.C. App. at 812, 463 S.E.2d at 780.

¶ 18 The Commission properly concluded the emergency, created by Mr. Larkin 

driving in the wrong lane of travel, compelled Ms. Miller to act instantly, in less than 

five seconds, to avoid a head-on collision. See Schaefer, 88 N.C. App. at 471-72, 363 

S.E.2d at 655.

2. Ms. Miller did not contribute to or cause the sudden emergency.

¶ 19 “The doctrine of sudden emergency applies when a defendant is confronted 

with an emergency situation not of his own making and requires [a] defendant only 

to act as a reasonable person would react to similar emergency circumstances.” 

Weston v. Daniels, 114 N.C. App. 418, 420, 442 S.E.2d 67, 71 (1994) (citation omitted) 
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(emphasis added). But a defendant shall not be “held liable for failure to act as a 

calm, detached reflection at a later date would dictate.” Id. (citation omitted).

¶ 20 As an initial matter, the Board contends Plaintiffs have waived review of this

challenge to the application of the sudden emergency doctrine—that Ms. Miller is not 

entitled to the defense because her negligence caused or contributed to the sudden 

emergency—because they did not present the specific challenge to the Commission 

on appeal from the Deputy Commissioner’s decision and order. Assuming without 

deciding whether Plaintiffs preserved this issue for our review, we hold the 

Commission correctly concluded Ms. Miller’s actions are insulated from liability 

under the doctrine of sudden emergency.

¶ 21 Plaintiffs disregard the Commission’s binding findings that Ms. Miller did not 

cross the center, yellow line and that she acted reasonably in maneuvering the bus to 

the left:

23. . . . . The school bus is fully in its appropriate lane,

angled slightly to the left, with its front left tire slightly 

over the nearest double yellow line but not across the 

second yellow line. Thus, based on the simulation, the 

point of impact is within Ms. Miller’s lane of traffic with 

the front right of Mr. Larkin’s car striking the front right 

of the school bus.

38. Based upon the preponderance of the evidence in view 

of the entire record, the Full Commission finds . . . that Ms. 

Miller, at the time, had to make an immediate decision 

when confronted with an impending collision. The Full 

Commission finds that, given the relatively short window 
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of time in which she had to react, Ms. Miller acted 

reasonably in her evasive maneuvers to avoid a collision 

with Mr. Larkin’s vehicle. . . . Ms. Miller assessed what 

she thought was the best course of action based on her 

years of experience as a driver, her training, and 

familiarity with her school bus route. While it may be best 

to move the school bus right when a vehicle drifts into the 

path of a school bus, training materials acknowledge that 

there are times when going right is not possible. The Full 

Commission finds that Ms. Miller acted reasonably when 

she drove to the left in an attempt to avoid the collision 

with Mr. Larkin’s car.

39. Based upon the preponderance of the evidence in view 

of the entire record, the Full Commission finds that even if 

Ms. Miller’s school bus crossed the double yellow line prior 

to the collision, doing so was reasonable given that Ms. 

Miller was attempting to avoid Mr. Larkin’s vehicle.

These findings support the Commission’s legal conclusion that Ms. Miller’s actions 

are insulated from liability under the doctrine of sudden emergency. See Fennell, 145 

N.C. App. at 589, 551 S.E.2d at 490.

¶ 22 Plaintiffs compare this case to several cases where a driver was precluded from 

invoking the sudden emergency doctrine because of their own negligence—for failure 

to travel at a safe speed, maintain control, or keep a proper lookout—because it

contributed to the emergency. See, e.g., Goins v. Time Warner Cable Se., LLC, 258 

N.C. App. 234, 238-40, 812 S.E.2d 723, 727-28 (2018) (cyclists were traveling too fast 

and failed to keep proper lookout for downed utility line in the roadway); Sobczak v. 

Vorholt, 181 N.C. App. 629, 639, 640 S.E.2d 805, 812 (2007) (driver was “on notice of 
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a potential encounter with ice” in snowy conditions); Gupton v. McCombs, 74 N.C. 

App. 547, 549-50, 328 S.E.2d 886, 888 (1985) (driver “failed to keep a vigilant lookout 

for the [pedestrian]” and sound her horn); White v. Greer, 55 N.C. App. 450, 454, 285 

S.E.2d 848, 851-52 (1982) (motorcyclist failed to avoid a car turning left in the 

oncoming lane). Those cases are inapposite because, throughout the sequence of this 

collision, Ms. Miller drove the bus at a reasonable speed, maintained control of the 

bus, and kept a lookout for Mr. Larkin’s vehicle and her surroundings.

¶ 23 In this case, Mr. Larkin created an emergency by traveling in the wrong lane 

toward a head-on collision with the school bus. See, e.g., Casey v. Fredrickson Motor 

Express Corp., 97 N.C. App. 49, 56, 387 S.E.2d 177, 181 (1990) (holding evidence of 

an oncoming vehicle in the wrong lane of travel was sufficient to warrant a jury 

instruction on the sudden emergency doctrine). And Ms. Miller’s subsequent actions 

did not contribute to or cause the sudden emergency. See Weston, 114 N.C. App. at 

420, 442 S.E.2d at 71. When Ms. Miller first saw Mr. Larkin’s vehicle in her lane, 

she immediately slowed the bus and honked her horn to warn the driver. Because 

Mr. Larkin did not return to the correct lane and Ms. Miller was concerned about the 

slope on the right shoulder of the roadway as well as the safety of the bus’s remaining 

passenger, she accelerated to the left in her lane to avoid a collision. Ms. Miller did 

not cross the yellow line and school bus safety training materials “acknowledge that 

there are times when going right is not possible.” She cannot be held liable “for failure 
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to act as a calm, detached” accident reconstruction expert with the benefit of 

hindsight. Id. (citation omitted).

¶ 24 Since Ms. Miller was compelled to act instantly and her actions did not 

contribute to the creation of the emergency, we hold the Commission appropriately 

applied the doctrine of sudden emergency and concluded the Board, through the 

actions of its employee Ms. Miller, was not negligent.

¶ 25 Because we affirm the Commission’s conclusion that Ms. Miller was not 

negligent and Plaintiffs do not challenge the Commission’s alternative conclusion 

that Plaintiffs’ claims were further barred based on their own contributory

negligence, we need not address Plaintiffs’ remaining argument about the doctrine of 

last clear chance. See Wray v. Hughes, 44 N.C. App. 678, 684-85, 262 S.E.2d 307, 311 

(1980) (“[W]here there is no evidence that [a] defendant failed to keep a reasonable 

lookout in the direction of travel or that a person exercising a proper lookout would 

have been able in the exercise of reasonable care to avoid the collision, the last clear 

chance doctrine does not apply.” (citations omitted)).

III. CONCLUSION

¶ 26 For the reasons outlined above, we affirm the decision and order of the 

Commission.

AFFIRMED.

Judges ARROWOOD and WOOD concur.