dissenting.
I respectfully dissent from the majority’s holding to reverse the Industrial Commission’s opinion and award. Plaintiff failed to comply with the appellate rules of this Court. I vote to dismiss this appeal or, in the alternative, to affirm the Commission on the merits of the appeal.
I. Standard of Review
The North Carolina Department of Transportation (“NCDOT”) is subject to a suit to recover damages for death caused by its negligence only as is provided in the Tort Claims Act. Davis v. Highway Commission, 271 N.C. 405, 156 S.E.2d 685 (1967). That Act states in part, “[t]he Industrial Commission shall determine whether or not each individual claim arose as a result of the negligence of any officer, employee . . . under circumstances where the State of North Carolina, if a private person, would be liable to the claimant in accordance with the laws of North Carolina.” N.C. Gen. Stat. § 143-291(a) (2003).
Our Court has previously ruled on the standard of review for tort claims from the Commission. “Under the Tort Claims Act, ‘when considering an appeal from the Commission, our Court is limited to two *377questions: (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.’ ” Smith v. N.C. Dep’t of Transp., 156 N.C. App. 92, 97, 576 S.E.2d 345, 349 (2003) (quoting Fennell v. N.C. Dep’t of Crime Control & Pub. Safety, 145 N.C. App. 584, 589, 551 S.E.2d 486, 490 (2001), cert. denied, 355 N.C. 285, 560 S.E.2d 800 (2002)); see N.C. Gen. Stat. § 143-293 (2003).
II. Preserving Issues for Appellate Review
A. Assignments of Error
“[T]he scope of review on appeal is confined to a consideration of those assignments of error set out in the record on appeal . . . .” N.C.R. App. P. 10(a) (2003). The record reveals plaintiff’s unnumbered assignments of error as follows:
The North Carolina Industrial Commission erred by disallowing the deposition testimony of Dr. Larry R. Goode (the former Secretary of Transportation and a defendant in the Viar actions); Norris Tolson (the current Secretary of Transportation); James M. Lynch (Branch Manager of the Traffic Engineering and Safety Systems Branch of the Department of Transportation and an author of the State’s Across Median Accident Study) taken in Hallum v. North Carolina Department of Transportation (TA 15455) and Jones v. North Carolina Department of Transportation (TA 15601). These cases with nearly identical fact circumstances and identical legal issues pertaining to the willful refusal of the respondents to install median barriers in deadly stretches of North Carolina interstates after an acute need for the barriers had been identified by the Department of Transportation’s own investigation.
Record, p.-[sic]
The North Carolina Industrial Commission, in its majority opinion, committed reversible error by not finding the named respondents negligent in the deaths of the minor petitioners for not installing median barriers on a deadly stretch of Highway 1-85 after the Department of Transportation found an acute need for the barriers approximately 8 years earlier.
Record, p.-[sic]
Plaintiff failed to cite any pages in the record under either of his assignments of error.
*378On appeal, plaintiff argues the Commission’s opinion and award should be reversed. We must first consider whether the Commission’s findings of fact are supported by competent evidence. Smith, 156 N.C. App. at 97, 576 S.E.2d at 349. Our review is further limited by the North Carolina Rules of Appellate Procedure, which require the appellant to assign error as follows:
questions that the evidence is legally or factually insufficient to support a particular issue or finding, and challenges directed against any conclusions of law of the trial court based upon such issues or findings, may be combined under a single assignment of error raising both contentions if the record references and the argument under the point sufficiently direct the court’s attention to the nature of the question made regarding each such issue or finding or legal conclusion based thereon.
N.C.R. App. P. 10(c)(3) (2003) (emphasis supplied).
Our Supreme Court has ruled:
[w]here no exception is taken to a finding of fact by the trial court, the finding is presumed to be supported by competent evidence and is binding on appeal. Furthermore, the scope of review on appeal is limited to those issues presented by assignment of error in the record on appeal. The Court of Appeals erred in reversing the trial court on an issue not properly presented for appeal by exception or assignment of error.
Koufman v. Koufman, 330 N.C. 93, 97-98, 408 S.E.2d 729, 731 (1991) (internal citations omitted).
Since plaintiff failed to assert error to any of the Commission’s findings of fact, the Commission’s findings are binding on our Court and we must conclude they are supported by competent evidence. Id. Plaintiff also failed to reference the record in violation of N.C.R. App. P. 10(c)(3) (2003). This Court should not address plaintiff’s assignments of error, and this appeal should be dismissed. See Shook v. County of Buncombe, 125 N.C. App. 284, 286, 480 S.E.2d 706, 707 (1997) (“[T]he rules are not merely ritualistic formalisms, but are essential to our ability to ascertain the merits of an appeal. Furthermore, the appellate rules promote fairness by alerting both the Court and appellee to the specific errors appellant ascribes to the court below.”).
*379B. Plaintiff’s Arguments on Appeal
In order to reach the merits of plaintiff’s argument and reverse the Commission’s opinion and award, this Court is limited to the issues properly presented for appeal. N.C.R. App. P. 10(a) (2003); see Koufman, 330 N.C. at 97-98, 408 S.E.2d at 731. In addition to the rule violations in plaintiff’s assignments of error discussed above, his brief also fails to adhere to the North Carolina Rules of Appellate Procedure.
Plaintiff’s brief sets forth only one “question presented” to this Court: whether the NCDOT’s failure to install median barriers was a proximate cause of the death of the Viar sisters. In making his arguments, plaintiff cites “Assignment of Error No. 1” and solely cites to the pages in the record containing a dissenting opinion from the Commission’s opinion and award. Citing only to the dissenting opinion violates the appellate rules and is insufficient to identify “the pages at which [the assignments of error] appear in the printed record on appeal.” N.C.R. App. P. 28(b)(6) (2003).
Plaintiff’s question presented and arguments on that issue do not correspond to the first assignment of error. Plaintiff’s brief does not address the Commission’s failure to admit certain deposition testimony from other cases as set forth as error in the first assignment of error. Although plaintiff cites “Assignment of Error No. 1” in his brief, none of his arguments relate in any manner to the substance of plaintiff’s first assignment of error. Appellate “[r]eview is limited to questions so presented in the several briefs. Questions raised by assignments of error in appeals from trial tribunals but not then presented and discussed in a party’s brief, are deemed abandoned.” N.C.R. App. P. 28(a) (2003). Plaintiff has abandoned his first assignment of error concerning the deposition testimony from other cases.
Regarding his second assignment of error, plaintiff does not cite or refer to “Assignment of Error No. 2” in his brief. “A party may not present for the first time in an appellate brief a question raising issues of law not set out in the assignments of error contained in the record on appeal.” Branch Banking and Trust Co. v. Staples, 120 N.C. App. 227, 231, 461 S.E.2d 921, 925, disc. rev. denied, 342 N.C. 190, 463 S.E.2d 233 (1995); see Shook, 125 N.C. App. at 286, 480 S.E.2d at 707 (appellant’s failure to properly assign error on appeal is fatal and his appeal is dismissed). Plaintiff failed to cite to his second assignment of error and failed to specify or argue any error in any conclusions of law within the Commission’s opinion and award. Not only did plain*380tiff improperly make assignments of error, but he also failed to properly argue the portions assigned as error. This appeal is not properly before us and should be dismissed.
III. Negligence
Since the majority’s opinion reaches the merits of this appeal, I also dissent from the result reached in that opinion.
A. Standard of Review
Our Supreme Court has explained the role of appellate courts in cases appealed from the North Carolina Industrial Commission. The Court ruled, “on appeal, an appellate court does not have the right to weigh the evidence and decide the issue on the basis of its weight. The court’s duty goes no further than to determine whether the record contains any evidence tending to support the finding.” Deese v. Champion Int’l Corp., 352 N.C. 109, 115, 530 S.E.2d 549, 552 (2000) (citation omitted). Plaintiff did not take exception to any findings of fact, thus limiting our review solely to a question of “whether the Commission’s findings of fact justify its conclusions of law and decision.” Fennell, 145 N.C. App. at 589, 551 S.E.2d at 490 (citation omitted).
After concluding that “[t]here was no negligence on the part of any named Officer, voluntary servant or agent of the State . . . which proximately caused plaintiffs[’] injuries,” the Commission applied N.C. Gen. Stat. § 143-291 (2003).
Under [N.C. Gen. Stat. § 143-291], “negligence is determined by the same rules as those applicable to private parties.” Plaintiff must show that “(1) defendant failed to exercise due care in the performance of some legal duty owed to plaintiff under the circumstances; and (2) the negligent breach of such duty was the proximate cause of the injury.”
Woolard v. N.C. Dept. of Transportation, 93 N.C. App. 214, 217, 377 S.E.2d 267, 269, cert. denied, 325 N.C. 230, 381 S.E.2d 782 (1989) (quoting Bolkhir v. N.C. State Univ., 321 N.C. 706, 709, 365 S.E.2d 898, 900 (1988)). I agree with the Commission’s conclusion that plaintiff failed to prove the NCDOT breached its duty or that any purported breach of duty by the NCDOT proximately caused the deaths of the Viar sisters.
*381B. Findings of Fact
The majority’s opinion concludes the Commission failed to make adequate findings of fact. Specifically, the majority’s opinion suggests several “findings” the Commission should have included to “provide some appropriate context” such as, the NCDOT’s annual budget, funding availability, and the degree of harm caused by median accidents. I disagree. As further explained below, I would conclude the Commission’s findings adequately support its conclusion that the NCDOT did not negligently cause the death of the Viar sisters.
Additionally, under the Tort Claims Act,
the burden of proof as to this [negligence] issue was on the plaintiff. Evidence is usually not required in order to establish and justify a finding that a party has failed to prove that which he affirmatively asserts. It usually occurs and is based on the absence or lack of evidence.
Bailey v. Dept. of Mental Sealth, 2 N.C. App. 645, 651, 163 S.E.2d 652, 656 (1968). Here, the Commission concluded that plaintiff failed to prove negligence by the NCDOT. Following Bailey, the majority’s opinion’s criticism of the lack of findings resulted from plaintiff’s failure to meet his burden to prove negligence.
C. Public Duty Doctrine
In its answer to plaintiff’s affidavit and claim for damages, the NCDOT asserted the public duty doctrine as a defense. The issue was also raised and argued during oral arguments before this Court. Our Supreme Court has held that the public duty doctrine applies to causes of action under the Tort Claims Act:
The general common law rule provides that governmental entities, when exercising their statutory powers, act for the benefit of the general public and therefore have no duty to protect specific individuals. Because the governmental entity owes no particular duty to any individual claimant, it cannot be held liable for negligence for a failure to carry out its statutory duties.Absent a duty, there can be no liability.
Stone v. N.C. Dept. of Labor, 347 N.C. 473, 482, 495 S.E.2d 711, 716, cert. denied, 525 U.S. 1016, 142 L. Ed. 2d 449 (1998) (internal citations omitted) (emphasis supplied).
The NCDOT possesses the statutory authority to plan, design, locate, construct, and maintain the system of public highways in this *382State. N.C. Gen. Stat. § 143B-346 (2003); Equipment Co. v. Hertz Corp., 256 N.C. 277, 123 S.E.2d 802 (1962).
The [NCDOT] is vested with broad discretion in carrying out its duties and responsibilities with respect to the design and construction of our public highways. The policies of the Board of Transportation and the Department of Transportation and the myriad discretionary decisions made by them as to design and construction are not reviewable by the judiciary “unless [their] action is so clearly unreasonable as to amount to oppressive and manifest abuse.”
Hochheiser v. N.C. Dept. of Transportation, 82 N.C. App. 712, 717-18, 348 S.E.2d 140, 143 (1986), aff’d, 321 N.C. 117, 361 S.E.2d 562 (1987) (quoting Guyton v. North Carolina Board of Transp., 30 N.C. App. 87, 90, 226 S.E.2d 175, 177 (1976)).
In deciding whether to install median barriers along certain portions of our state highway and interstate system, the NCDOT must use its discretion, is limited by budget considerations, and must economically coordinate construction projects. Here, the Commission reviewed the NCDOT’s decision and the actions taken by the NCDOT to make the portion of Interstate 85 where the accident occurred safer. The Commission concluded the NCDOT’s actions were reasonable. The Commission’s findings of fact, unchallenged by plaintiff, support this conclusion. Specifically, the Commission found as fact:
16. The task force preparing the [Interstate Across Median Accident Survey] recommended corrective action be delayed [on this stretch of 1-85 where this accident occurred] until other projects were constructed unless additional accidents required earlier action because this project was within the physical limits of construction of other projects and because of financial restrictions. Therefore, construction was scheduled late in the programmed seven-year (7) period.
17. In September 1993, it was anticipated that the widening of 1-85, including the area in question, would occur within seven (7) years or by 1999.
18. The North Carolina Department of Transportation could not fund and build all twenty-four (24) sites immediately. Decisions were made to install a median barrier at this site and others at the time when future work was done *383rather than to install something and have to remove it with the expansion.
20. Based upon the 1989 and 1996 versions of the American Association of State Highway and Transportation Roadside Design Guide, the 30[-foot] median fell into the category in which median barriers for new construction were optional regardless of traffic volume. The guide only requires the need for a barrier be evaluated using the best engineering judgment, (emphasis supplied).
21. Ellis King [plaintiffs expert witness] did not testify the highway failed to meet standards at the time of construction and admitted that the 30-foot median fell into the optional area of the chart of the Roadway Design Guide upon which he relied in this testimony. Dr. King did not know if the funds were available or what other projects may have been competing for funding. Dr. King indicated a guardrail would not have prevented the initial impact on the other southbound vehicle and that a barrier would have put the Viar vehicle in the path of another southbound vehicle.
27. Other projects may be more deserving of immediate attention than the stretch of 1-85 in question.
31. Funding for the barriers had been allocated in the Transportation Improvement program which covers seven (7) years.
34. Expected funding for this widening project did not become available.
50. Requests for improvements are referred to the Policy and Programming Group of the North Carolina Department of Transportation under the transportation improvement program. This program has been in place since the 1970s.
*38451. It is normal that many more requests for improvements are made than there is money to underwrite the requests.
The Commission further found that the section of Interstate 85 where the accident occurred was constructed in the 1950s and that there are no federal guidelines or state regulations requiring periodical review to determine if the median barrier will be required. While no legal authority or engineering guidelines required bringing an older facility up to a new standard or to modify it due to traffic increases, the NCDOT sought to make this portion of Interstate 85 safer by reducing the speed limit from sixty-five miles per hour to fifty-five miles per hour prior to the accident.
The NCDOT did not owe a specific duty to plaintiff and cannot be held liable under the public duty doctrine where the Commission concluded it acted reasonably and within its statutory and discretionary authority.
D. Proximate Cause
In addition to failing to prove the NCDOT owed a specific duty or that it breached any duty, plaintiff has not shown that the NCDOT’s failure to erect median barriers proximately caused the death of the Viar sisters.
Proximate cause is a cause which in natural and continuous sequence, unbroken by any new and independent cause, produced the plaintiffs injuries, and without which the injuries would not have occurred, and one from which a person of ordinary prudence could have reasonably foreseen that such a result, or consequences of a generally injurious nature, was probable under all the facts as they existed.
Woolard, 93 N.C. App. at 218, 377 S.E.2d at 270 (quoting Hairston v. Alexander Tank & Equipment Co., 310 N.C. 227, 233, 311 S.E.2d 559, 565 (1984)). The evidence shows the accident occurred at night, around 9:00 p.m., and during “extremely heavy rain.” The Viar vehicle was traveling south on Interstate 85, when it crossed the center median and collided with a large truck traveling in the northbound lane. Plaintiff offered no evidence tending to show that the Viar sisters could or would have survived the accident had median barriers been in place. Dr. Ellis King, plaintiffs own witness, was qualified as an expert in traffic safety and testified that: (1) guardrails do not always stop vehicles; (2) a barrier could have put the Viar vehicle *385back into the path of another southbound vehicle; and (3) interstates without median barriers are still safer than two-lane roads.
Competent evidence presented before the Commission supports its findings of fact and conclusions of law. Presuming plaintiff had successfully shown that the NCDOT owed plaintiff an individualized duty and breached that duty, the Commission correctly concluded that the NCDOT’s failure to erect median barriers was not a proximate cause of the death of the Viar sisters.
IV. Conclusion
Plaintiff failed to except to any of the Commission’s findings of fact or conclusions of law. These findings are binding upon this Court on appeal. Plaintiff also failed to properly assign error or argue its assignments of error contained in the record in violation of the North Carolina Rules of Appellate Procedure. “Our rules are mandatory, and in fairness to all who come before this Court, they must be enforced uniformly.” Shook, 125 N.C. App. at 287, 480 S.E.2d at 708. Our Courts have long recognized a strict requirement that appeals should be dismissed for “failure to comply with the rules.” Pruitt v. Wood, 199 N.C. 788, 792, 156 S.E. 126, 128 (1930); see In re Lancaster, 290 N.C. 410, 424, 226 S.E.2d 371, 380 (1976) (“Ordinarily our legal system operates in an adversary mode. One incident of this mode is that only those who properly appeal from the judgment of the trial divisions can get relief in the appellate divisions. This can be a strict requirement.”). I dissent from the majority’s opinion and vote to dismiss this appeal.
Despite plaintiff’s multiple and egregious rule violations, the majority’s opinion ignores all violations and reaches the merits of this appeal. The deaths of these two young sisters and the serious injuries to the surviving sister are tragic and engender great sympathy for the family. However, considering our standard of review and the Commission’s findings of fact that are binding upon this Court, I vote to affirm the Commission’s opinion and award on the merits of the appeal. I respectfully dissent.