Cherney v. NORTH CAROLINA ZOOLOGICAL PARK

648 S.E.2d 242, 185 N.C. App. 203, 2007 N.C. App. LEXIS 1719

• Court: Court of Appeals of North Carolina
• Decided: August 7, 2007
• Docket: COA06-1060
• Status: Published

Opinions

TYSON, Judge.

Tinya Cherney (“plaintiff’) appeals from the North Carolina Industrial Commission’s (“the Commission”) decision and order entered 28 April 2006, which denied her claim for damages from the North Carolina Zoological Park (“defendant”). We affirm.

I. Background

Plaintiff’s claim for damages is before this Court for a second time. On 7 September 1999, plaintiff filed a claim to recover damages for personal injuries against defendant pursuant to the Tort Claims Act, N.C. Gen. Stat. § 143-291, et seq. Plaintiff’s affidavit alleged:

That the injury or property damage occurred in the following manner: [Plaintiff] was in the enclosed African Pavilion near the center when a large ficus tree fell hitting a palm tree. Both trees then fell on her pinning her to the floor of the walkway in the African Pavilion. The impact caused vertigo, broke her right femur, cracked three ribs, caused compression fractures to three vertebra (sic) and wrenched her knee. The injury occurred because the ficus tree which was indoors had been permitted to grow too large for its roots or alternatively had not been properly maintained to prevent it from becoming unsafe. The ficus tree was under the exclusive control of [defendant’s] personnel and not subject to wind or any other natural force.

On 21 December 1999, defendant filed an answer denying plaintiff’s allegations.

On 13 August 2001, Deputy Commissioner, Richard B. Ford, heard arguments and received evidence from both parties. On 30 October 2001, Deputy Commissioner Ford ordered defendant to pay plaintiff $500,000.00 in compensatory damages. Defendant appealed to the Full Commission.

On 29 April 2002, the matter came before the Full Commission for hearing. On 28 July 2003, a majority of the Commission reversed Deputy Commissioner Ford’s recommended opinion and award and denied plaintiff s claim. Commissioner Bemadine S. Ballance dissented from the Commission’s decision and order.

Plaintiff appealed to this Court. On 14 September 2004, the matter was initially heard before this Court. On 2 November 2004, a divided panel of this Court affirmed the Commission’s decision and order denying plaintiff’s claim. See Cherney v. N.C. Zoological Park, 166 N.C. App. 684, 603 S.E.2d 842 (2004) (Timmons-Goodson, J., dissenting). Plaintiff appealed to our Supreme Court, and on 5 May 2005, the Court reversed for the reasons stated in Judge Hmmon-Goodson’s dissenting opinion in a per curiam opinion. See Cherney v. N.C. Zoological Park, 359 N.C. 419, 613 S.E.2d 498 (2005).

On 12 October 2005, plaintiff filed a motion for entry of award with the Commission. On 28 November 2005, defendant filed a response to plaintiff’s motion with the Commission. On 28 April 2006, the Commission entered a second decision and order denying plaintiff’s claim. The Commission entered its decision and order without further hearing on the matter or action by either party. Commissioner Ballance again dissented from the Commission’s decision and order. Plaintiff appeals.

II. Issues

Plaintiff argues: (1) the Commission’s second decision and order giving rise to this appeal should be deemed moot or improper; (2) the Commission erred by failing to apply a premises-liability legal standard to defendant’s negligence; and (3) the Commission’s findings of fact are not supported by the evidence.

HI. Standard of Review

This Court has stated:

Pursuant to [N.C. Gen. Stat. § 143-291(a)], the Commission has exclusive jurisdiction to hear claims falling under [The Tort Claims] Act.

Decisions of the Commission . . . under the Tort Claims Act can only be appealed to this Court for errors of law . . . 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 competent evidence to support them. This is so even if there is evidence which would support findings to the contrary. Therefore, when considering an appeal from the Commission, our Court is limited to two questions: (I) 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.

Simmons v. North Carolina DOT, 128 N.C. App. 402, 405-06, 496 S.E.2d 790, 793 (1998) (emphasis supplied) (internal citations and quotation omitted).

IV. The Commission’s Second Decision and Order

Plaintiff argues the Commission’s second decision and order is improper because our Supreme Court ruled in her favor in 2005 and allowed her Petition for Writ of Mandamus in 2006. We disagree.

On 8 May 2006, plaintiff filed a Petition for Writ of Mandamus with our Supreme Court seeking to end all litigation in this matter and to require defendant to pay the damages awarded to her by Deputy Commissioner Ford on 30 October 2001. At the time plaintiff submitted her brief to this Court on 20 November 2006, plaintiff’s Writ of Mandamus remained pending before our Supreme Court.

On 14 December 2006, our Supreme Court denied plaintiff’s Petition for Writ of Mandamus and stated, “the mandate of this Court’s 5 May 2005 per curiam opinion was satisfied by the [Commission’s] issuance of its new Decision and Order on 28 April 2006.” Cherney v. N.C. Zoological Park, 361 N.C. 147, 633 S.E.2d 677 (2006). This assignment of error is overruled.

V. Legal Standard

Plaintiff argues the Commission erred by failing to apply a premises-liability legal standard to plaintiff’s negligence claim. Plaintiff asserts the issue was not whether defendant’s staff reasonably monitored or otherwise cared for the ficus, but whether defendant’s staff failed to correct or warn its visitors of the known hidden hazard posed by the ficus. Plaintiff contends the Commission failed to address defendant’s legal duty to warn her of the known hidden danger of the tree. We disagree.

N.C. Gen. Stat. § 143-291(a) states:

The Industrial Commission shall determine whether or not each individual claim arose as a result of the negligence of any officer, employee, involuntary servant or agent of the State while acting within the scope of his office, employment, service, agency or authority, 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.

Our Supreme Court has stated:

Under the [Tort Claims] Act, negligence is determined by the same rules as those applicable to private parties.

To establish actionable negligence, 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.

Bolkhir v. North Carolina State Univ., 321 N.C. 706, 709, 365 S.E.2d 898, 900 (1988) (emphasis supplied).

Our Supreme Court eliminated the distinctions between licensees and invitees in premises-liability cases and stated:

[T]his Court concludes that we should eliminate the distinction between licensees and invitees by requiring a standard of reasonable care toward all lawful visitors. Adoption of a true negligence standard eliminates the complex, confusing, and unpredictable state of premises-liability law and replaces it with a rule which focuses the jury’s attention upon the pertinent issue of whether the landowner acted as a reasonable person would under the circumstances.

In so holding, we note that we do not hold that owners and occupiers of land are now insurers of their premises. Moreover, we do not intend for owners and occupiers of land to undergo unwarranted burdens in maintaining their premises. Rather, we impose upon them only the duty to exercise reasonable care in the maintenance of their premises for the protection of lawful visitors.

Nelson v. Freeland, 349 N.C. 615, 631-32, 507 S.E.2d 882, 892 (1998) (Wynn, J.) (emphasis supplied).

Following Nelson, this Court stated the duty to exercise reasonable care “requires that the landowner not unnecessarily expose a lawful visitor to danger and give warning of hidden hazards of which the landowner has express or implied knowledge.” Bolick v. Bon Worth, Inc., 150 N.C. App. 428, 430, 562 S.E.2d 602, 604, disc. rev. denied, 356 N.C. 297, 570 S.E.2d 498 (2002).

Upon remand, the Commission concluded as a matter of law:

5. The greater weight of the evidence shows that Ms. Wall’s practices and management of her staff in the care of the ficus ben-jamina were reasonable and met or exceeded the standards for monitoring, record keeping, pruning, watering, fertilizing, cabling, syringing and soil mixture in her field. Plaintiff has failed to prove that either of the named employees of defendant, Ron Ferguson and Virginia Wall or the staff at the North Carolina Zoo breached any applicable standard of care. The greater weight of the evidence shows that the actions of the staff at the North Carolina Zoo in following the standards and practices of Ms. Wall in the care of the ficus benjamina were reasonable and met or exceeded the standards of the field, including the monitoring, record keeping, pruning, watering, fertilizing, cabling, syringing and mixing of the soil. Therefore, plaintiff has failed to prove negligence and is not entitled to recovery.

(Emphasis supplied).

The Commission also found as fact:

18. The greater weight of the evidence indicates that neither Ms. Wall nor her staff knew or should have known that the ficus tree was likely to fall. There is no showing that Ms. Wall violated any applicable standard of care in her management of the horticulture department and supervision of the horticulture staff. There is no showing that any member of Ms. Wall’s staff violated any applicable standard of care in the completion of their duties regarding the care of the ficus.

Plaintiff admits “defendant’s personnel at all times adequately cared for, monitored and managed the Ficus, and met the applicable ‘standard of care’ for doing so.” Plaintiff only argues the Commission applied the wrong legal standard because it failed to address defendant’s legal duty to warn her of the known hidden danger of the ficus. Finding of fact numbered 18 is unchallenged, binding, and clearly shows the Commission properly applied the legal standards from both Nelson ánd Bolick. Id. This assignment of error is overruled.

VI. Findings of Fact

Plaintiff argues the Commission’s findings of fact are not supported and must be set aside because all of the evidence leads to the conclusion defendant’s negligence was the proximate cause of her injuries. Plaintiff asserts the unequivocal and uncontroverted evidence is that defendant had notice of a potentially dangerous condition on its premises and failed to correct or warn its visitors. We disagree.

“[T]he scope of review on appeal is limited to those issues presented by assignment of error in the record on appeal.” Koufman v. Koufman, 330 N.C. 93, 98, 408 S.E.2d 729, 731 (1991). This Court has stated:

Where findings of fact are challenged on appeal, each contested finding of fact must be separately assigned as error, and the failure to do so results in a waiver of the right to challenge the sufficiency of the evidence to support the finding. Taylor v. N.C. Dept. of Transportation, 86 N.C. App. 299, 357 S.E.2d 439 (1987); Concrete Service Corp. v. Investors Group, Inc., 79 N.C. App. 678, 684, 340 S.E.2d 755, 759-60, cert, denied, 317 N.C. 333, 346 S.E.2d 137 (1986) (finding that the failure of appellant to “except and assign error separately to each finding or conclusion that he or she contends is not supported by the evidence ... will result in waiver of the right to challenge the sufficiency of the evidence to support particular findings of fact”).

Okwara v. Dillard Dep’t Stores, Inc., 136 N.C. App. 587, 591, 525 S.E.2d 481, 484 (2000) (emphasis supplied). “Where no exception is taken to a finding of fact..., the finding is presumed to be supported by competent evidence and is- binding on appeal.” Koufman v. Koufman, 330 N.C. at 97, 408 S.E.2d at 731.

As noted, “[T]he findings of fact of the Commission shall be conclusive if there is any competent evidence to support them. This is so even if there is evidence which would support findings to the contrary.” Simmons, 128 N.C. App. at 405, 496 S.E.2d at 793.

Here, plaintiff has separately and specifically assigned error to only two of the Commission’s findings of fact and argues they are not supported by any competent evidence:

7. The last recorded check on cables on the ficus tree were made by experienced staff members on Friday, July 17, 1998. No problems were recorded. Ms. Wall learned from a staff member after the incident involving plaintiff that one of the cables was a little bit loose, but the degree of looseness was so minor as to not warrant recordation, therefore there was not sufficient notice to the staff that the ficus benjamina could present a hazard to the public and it was not unreasonable to wait until Monday for the pruning given the circumstances.

11. On July 18, 1998, the multiple stemmed ficus tree appeared healthy and free from decay. There were no indications that the tree was diseased or under stress. It did not appear to be hazardous and had stood for more than ten years under the protocols then in effect.

Plaintiff was injured when a ficus tree fell on 18 July 1998 in defendant’s indoor African Pavilion. Virginia Wall (“Wall”), defendant’s curator of horticulture, testified six “three-eighths-inch aircraft cable[s] . . . bolt[ed] into the concrete” were used to aid the tree in staying upright. It was “protocol” for staff to inspect the cables monthly for slack, tension, deterioration, and rust. The cables were replaced and repaired at times. The monthly checks on the cables were not routinely recorded, unless staff members discovered what appeared to be a problem.

Wall testified she expected to be notified by staff if there “was a large scale problem” or “a problem they perceived as being dangerous.” The cables were checked on 17 July 1998, the day before the accident. No problems were noted by defendant’s staff. Defendant’s records stated, “7/17/98 all cables checked. No problems noted.” Wall was informed by a staff member after the accident one of the cables was “a little bit loose.” Wall testified:

I have no record of loose cables other than the incident report, and that was after the fact. In my opinion, reading old logs — if [the staff] felt it was a slack cable, they would have noted that in the daily logs, and they did not. So it didn’t even come up on their radar that it was a problem.

The tree was scheduled for regular “summer pruning” on 20 July 1998. The tree had previously been pruned in January 1998. Wall testified: (1) the top growth on the tree was not an abnormal amount; (2) the amount of top growth “was typical for right before pruning”; and (3) she had no reason to think the tree was going to fall at this particular time.

Competent evidence in the record also shows: (1) on 18 July 1998, the tree appeared healthy and free from decay; (2) the tree did not appear to be a problem and had stood for more than ten years with the maintenance protocols in effect; (3) the cause of the tree’s fall is unknown; and (4) the tree falling was “unforeseeable, unpreventable, and extremely rare.”

The Commission’s findings of fact are supported by competent evidence in the record and are “conclusive” on appeal. Simmons, 128 N.C. App. at 405, 496 S.E.2d at 793. These findings of fact support the Commission’s conclusions of law denying plaintiff’s claims for damages. This assignment of error is overruled.

VIL Conclusion

The Commission’s decision and order entered 28 April 2006 is properly before us. Our Supreme Court denied plaintiff’s Petition for Writ of Mandamus and stated, “the mandate of this Court’s 5 May 2005 per curiam opinion was satisfied by the [Commission’s] issuance of its new Decision and Order on 28 April 2006.” Cherney, 361 N.C. at 147, 633 S.E.2d at 677.

The Commission applied the proper premises-liability legal standard to plaintiff’s negligence claim, as shown in finding of fact numbered 18 and conclusion of law numbered 5. The findings of fact to which plaintiff assigned error and argued are supported by competent evidence. These findings of fact support the Commission’s conclusion of law denying plaintiff’s claim for damages. The Commission’s decision and order is affirmed.

Affirmed.

Judge CALABRIA concurs. Judge WYNN concurs in part and dissents in part by separate opinion.