Cobb Ex Rel. Knight v. Town of Blowing Rock

713 S.E.2d 732, 213 N.C. App. 88, 2011 N.C. App. LEXIS 1398

• Court: Court of Appeals of North Carolina
• Decided: July 5, 2011
• Docket: COA09-1443
• Status: Published

Opinions

HUNTER, JR., Robert N., Judge.

This case requires us to determine whether, in a negligence case, the jury must be instructed to consider the known or reasonably foreseeable characteristics of lawful visitors when the plaintiff, who is a lawful visitor, is injured by a natural condition on the defendant’s property. We hold the failure to give such an instruction is error. Therefore, we award Plaintiffs a new trial.

I. Factual and Procedural Background

On 28 August 2007, Chelsea Amanda Brooke Cobb, through her guardian ad litem D. Rodney Knight, Jr., and Chelsea’s father, Robert B. Cobb, individually, (collectively referred to as “Plaintiffs”¹) filed a complaint against the Town of Blowing Rock² (“Defendant”) alleging negligence. On 18 October 2007, Defendant filed an answer and a motion to dismiss pursuant to North Carolina Rules of Civil Procedure 12(b)(4) and (5). Evidence presented at trial tended to show that, on 9 August 2004, Ms. Cobb, age twelve, and a friend were playing in the area around Glen Burney Falls on New Years Creek, which is located on property owned by Defendant. Glen Burney Falls is the second of three waterfalls located on Defendant’s property on New Years Creek, a naturally occurring stream whose depth varies according to season and rainfall, from barely covering the creek bed to several feet deep after a storm. Just above Glen Burney Falls, the creek is around ten to twelve feet wide. Defendant opened the property to the public for recreational activity and for viewing the three waterfalls located on the property. In doing so, Defendant constructed and maintained designated trails and platforms to view the waterfalls, including a wooden observation deck upstream from Glen Burney Falls. On 9 August 2004, Ms. Cobb and her friend went to the overlook platform at Glen Burney Falls. Instead of staying on the designated trail, they exited the left side of the platform and attempted to cross New Years Creek just above Glen Burney Falls. However, Ms. Cobb slipped in the creek, began sliding downstream, and went over the waterfall. As a result, she suffered serious injuries.

There were no warnings located on the overlook platform or the trail regarding the dangers of trying to cross New Years Creek or of leaving the platform. At the beginning of the Glen Burney trail, the hiking trail that leads to the waterfalls, there was a sign with a map of the trails that warned visitors not to leave the designated marked trails. A cable had been extended between two trees across New Years Creek just above Glen Burney Falls at some time in the past, but prior to 9 August 2004, the cable had been moved or deteriorated and fallen down. In the past, a wooden board was affixed between the viewing platform at Glen Burney Falls and a tree to act as a barricade to keep visitors from leaving the left side of the platform and walking down to New Years Creek, but this board had been taken down prior to 9 August 2004. Only twelve days before Ms. Cobb’s fall, a twenty-two-year-old man who was an experienced hiker and a twenty-four-year-old man who was an engineer slipped and fell in the same location; both were seriously injured. These men testified they did not realize how quickly and steeply the stream dropped down at this point.

After a trial, the jury found Ms. Cobb was not injured by the negligence of Defendant, and the trial court entered judgment dismissing Plaintiffs’ complaint with prejudice. Plaintiffs filed a motion for a new trial pursuant to North Carolina Rule of Civil Procedure 59, which the trial court denied. On 14 April 2009, Plaintiffs filed written notice of appeal from the trial court’s judgment and the denial of their motion for a new trial.

On appeal, Plaintiffs contend the trial court committed three errors pertaining to the jury instructions: (1) denying their requested jury instruction on a landowner’s duty of care; (2) instructing the jury on a landowner’s duty of care without addressing the import of Ms. Cobb’s age; and (3) failing to provide the correct instructions in response to the jury’s question regarding the consideration of age and the landowner’s duty of care, thus misleading the jury and altering the outcome of the case. Plaintiffs also argue the trial court erred in denying their motion for a new trial.

II. Jurisdiction

We have jurisdiction over Plaintiffs appeal of right. See N.C. Gen. Stat. § 7A-27(b) (2009) (stating appeal lies of right to this Court from final judgments of a superior court).

III. Analysis

A. Jury Instructions

Plaintiffs argue the trial court erred in failing to give their requested jury instructions, which they contend were a correct statement of the law regarding a landowner’s duty to a minor who is a lawful visitor. Defendant counters that the trial court’s instructions to the jury were a correct statement of the applicable law.

To prevail on this issue, the plaintiff must demonstrate that (1) the requested instruction was a correct statement of law and (2) was supported by the evidence, and that (3) the instruction given, considered in its entirety, failed to encompass the substance of the law requested and (4) such failure likely misled the jury.

Liborio v. King, 150 N.C. App. 531, 534, 564 S.E.2d 272, 274 (2002) (citation omitted). “ ‘When a party aptly tenders a written request for a specific instruction which is correct in itself and supported by evidence, the failure of the court to give the instruction, at least in substance, is error.’ ” Maglione v. Aegis Family Health Ctrs., 168 N.C. App. 49, 56, 607 S.E.2d 286, 291 (2005) (quoting Faeber v. E.C.T. Corp., 16 N.C. App. 429, 430, 192 S.E.2d 1, 2 (1972)). The appellant bears the burden of demonstrating the jury was misled or that the verdict was affected by an omitted instruction. Robinson v. Seaboard Sys. R.R., 87 N.C. App. 512, 524, 361 S.E.2d 909, 917 (1987). Accordingly, we first look to see whether Plaintiffs’ “requested instruction was a correct statement of law.” See Liborio, 150 N.C. App. at 534, 564 S.E.2d at 274.

The trial court gave the jury the following instructions regarding the duty of a landowner to a lawful visitor:

Issue Number 1; Was the minor plaintiff, Chelsea Cobb, injured by the negligence of the defendant? On this issue the burden of proof is on the plaintiff. This means that the plaintiff must prove, by the greater weight of the evidence, that the defendant was negligent and that such negligence was a proximate cause of the plaintiff’s injury.

Negligence refers to a person’s failure to follow a duty of conduct imposed by law. The law requires every owner to use ordinary care to keep the premises in a reasonably safe condition for lawful visitors who use them in a reasonable and ordinary manner. Ordinary care means that degree of care which a reasonable and prudent person would use under the same or similar circumstances to protect himself and others from injury. A person’s failure to use ordinary care is negligence.

An owner is required to give adequate warning to lawful visitors of any hidden or concealed dangerous condition about which the owner knows or, in the exercise of ordinary care, should have known. A warning is adequate when, by placement, size and content, it would bring the existence of the dangerous condition to the attention of a reasonably prudent person. However, he does not have to warn about concealed conditions of which he has no knowledge and of which he could not have learned by reasonable inspection and supervision. He is held responsible for knowing of any condition which a reasonable inspection and supervision of the premises would reveal. He is also responsible for knowing of any hidden or concealed dangerous condition which his own conduct or that of his agents or employees has created ....

The owner is not required to warn of obvious dangers or conditions.

The instructions as given by the trial court were based upon portions of the pattern jury instructions. See N.C.P.I., Civ. 805.55 (“Duty of Owner to Lawful Visitor.”). At trial, Plaintiffs requested that the following additions, indicated by italics, be added to the pattern jury instructions:

Negligence refers to a person or entity’s failure to follow a duty of conduct imposed by law. The law requires every landowner to use ordinary care to keep the premises in a reasonably safe condition for lawful visitors who use them in a reasonable and ordinary manner. What constitutes a reasonably safe condition of land depends upon the uses to which the owner invites the guests to make of the premises, and the uses which the owner should anticipate its guests will make of the premises. It also depends upon the known or reasonably foreseeable characteristics of the users of the premises. A landowner owes a higher level of care to a child who is unable to appreciate a potential of danger. In this context, ordinary care means that degree of care which a reasonable and prudent person or entity would use under the same or similar circumstances to protect a child of the same or similar attributes as the plaintiff from injury. A person’s failure to use ordinary care is negligence ....

With respect to Plaintiff’s first contention that Defendant failed to adequately warn of dangers associated with New Year’s [sic] Creek, an owner is required to give adequate warning to lawful visitors of any hidden or concealed dangerous condition about which the owner knows or, in the exercise of ordinary care, should have known. A warning is adequate when, by placement, size and content, it would bring the existence of the dangerous condition to the attention of a reasonably prudent child of the same or similar attributes as the plaintiff (Citations omitted).

First, Plaintiffs contend the trial court erred in failing to give their proffered instructions. This argument fails, however, because those instructions contained an incorrect statement of law: the reference to a “higher level of care.”

Our Supreme Court has held that, “[t]o state a claim for common law negligence, a plaintiff must allege: (1) a legal duty; (2) a breach thereof; and (3) injury proximately caused by the breach.” Stein v. Asheville City Bd. of Educ., 360 N.C. 321, 328, 626 S.E.2d 263, 267 (2006). “ ‘In the absence of a legal duty owed to the plaintiff by [the defendant], [the defendant] cannot be liable for negligence.’ ” Id. (alterations in original) (quoting Cassell v. Collins, 344 N.C. 160, 163, 472 S.E.2d 770, 772 (1996), abrogated on other grounds by Nelson v. Freeland, 349 N.C. 615, 507 S.E.2d 882 (1998)). Formerly, “the standard of care a real property owner or occupier owed to an entrant depended on whether the entrant was an invitee, licensee, or trespasser.” Lorinovich v. K Mart Corp., 134 N.C. App. 158, 161, 516 S.E.2d 643, 645 (1999). Landowners owed invitees “a duty of ordinary care to maintain the premises in a safe condition and to warn of hidden dangers that had been or could have been discovered by reasonable inspection.” Mazzacco v. Purcell, 303 N.C. 493, 498, 279 S.E.2d 583, 587 (1981) (abrogated on other grounds by Nelson, 349 N.C. 615, 507 S.E.2d 882). However, a landowner owed a licensee merely the duty “to refrain from doing the licensee willful injury and from wantonly and recklessly exposing him to danger.” McCurry v. Wilson, 90 N.C. App. 642, 645, 369 S.E.2d 389, 392 (1988) (quoting Pafford v. Construction Co., 217 N.C. 730, 736, 9 S.E.2d 408, 412 (1940)) (quotation marks omitted). Likewise, a landowner owed a trespasser a duty to refrain from the willful or wanton infliction of injury. Howard v. Jackson, 120 N.C. App. 243, 247, 461 S.E.2d 793, 797 (1995).

In Nelson v. Freeland, our Supreme Court eliminated “the distinction between licensees and invitees by requiring a standard of reasonable care toward all lawful visitors” and held that a landowner owes “the duty to exercise reasonable care in the maintenance of their premises for the protection of lawful visitors.” 349 N.C. at 631-32, 507 S.E.2d at 892. In doing so, the Court explained it did “not hold that owners and occupiers of land are now insurers of their premises.” Id. at 632, 507 S.E.2d at 892. The Court retained the status of trespasser because it concluded “abandoning the status of trespasser may place an unfair burden on a landowner who has no reason to expect a trespasser’s presence.” Id. at 632, 507 S.E.2d at 892. This Court has commented on the holding in Nelson, clarifying that

the landowner now is required to exercise reasonable care to provide for the safety of all lawful visitors on his property, the same standard of care formerly required only to invitees. Whether the care provided is reasonable must be judged against the conduct of a reasonably prudent person under the circumstances.

Lorinovich, 134 N.C. App. at 161, 516 S.E.2d at 646. In other words, the present standard for all lawful visitors is the same as it was prior to Nelson for invitees. See id. Nelson thus abolished the distinction between “licensees” and “invitees” and applied the same standard to all lawful visitors. Lorinovich., 134 N.C. App. at 161, 516 S.E.2d at 646.

Our pre-Nelson decisions elevated the standard of care owed to licensee minors to the standard of care owed to invitees. Rather than owing licensee children a duty “to refrain from doing the licensee willful injury and from wantonly and recklessly exposing him to danger,” McCurry, 90 N.C. App. at 645, 369 S.E.2d at 392 (quoting Pafford, 217 N.C. at 736, 9 S.E.2d at 412) (quotation marks omitted), landowners instead owed children-licensees a higher duty. After Nelson, all lawful visitors are entitled to the higher of the two previous standards. In other words, to the extent children-licensees were owed the duty of reasonable care before Nelson by virtue of their age, they are now owed that standard by virtue of being a lawful visitor. As the same standard now applies to all lawful visitors, there is no support for an instruction regarding a “higher standard of care” with respect to children. Therefore, the trial court correctly refused to give the specific instruction requested by Plaintiffs.

Plaintiffs also contend the trial court erred because the instruction given by the court failed to encompass the substance of the law. While a trial court is encouraged to make use of the pattern jury instructions, doing so “does not obviate the trial judge’s duty to instruct [on] the law correctly.” State v. Jordan, 140 N.C. App. 594, 596, 537 S.E.2d 843, 845 (2000). The trial court refused to instruct the jury on how to consider Ms. Cobb’s age as part of the negligence analysis. Plaintiffs, citing Hedrick v. Tigniere, 267 N.C. 62, 147 S.E.2d 550 (1966), argue that a landowner’s duty to warn is dependent upon the age of the lawful visitor.

In Hedrick, the plaintiff, a minor-invitee, was injured during her dancing lessons when she slipped and fell on the dance floor. Id. at 63-64, 147 S.E.2d at 551. The plaintiff brought a claim for negligence against the owners of the dance school, and the trial court entered a judgment of nonsuit at the close of evidence. Id. On appeal, our Supreme Court noted the applicable standard that a landowner owed to an invitee:

The proprietor of a school operated for profit, like the proprietor of any other business establishment, owes to those whom he invites to enter and use his premises, for purposes connected with his business, a duty to use ordinary care to maintain the premises in a condition reasonably safe for the contemplated use and a duty to warn the invitee against dangers, which are known to or should have been discovered by the proprietor and which are not readily apparent to such observation as may reasonably be expected of such an invitee to such an establishment.

Id. at 65-66, 147 S.E.2d at 553. The Court also noted that what constitutes reasonable care will vary depending upon the nature of the landowner’s premises and the foreseeable characteristics of invitees:

What constitutes a reasonably safe condition of premises depends, of course, upon the uses which the proprietor invites his business guests to make of them and those which he should anticipate they will make. It also depends upon the known or reasonably foreseeable characteristics of the invitees. A condition reasonably safe for invitees upon an ice skating rink is far different from a condition reasonably safe upon the stairway of a rest home for the aged, or in the aisle between the counters and display racks of a store whose proprietor hopes his invitees’ attention will be attracted to the articles there displayed for sale. The rule of law is stated in the same words for all these sitúations — the proprietor must use the care a reasonable man similarly situated would use to keep his premises in a condition safe for the foreseeable use by his invitee — but the standard varies from one type of establishment to another because different types of businesses and different types of activities involve different risks to the invitee and require different conditions and surroundings for their normal and proper conduct.

Id. at 67, 147 S.E.2d at 553-54 (emphasis added) (citations omitted). Here, Plaintiffs stress the Hedrick Court noted that the age of the invitee may be a factor in determining the landowner’s standard of care:

[t]he sufficiency of a warning to the invitee of the existence of a condition upon the premises will depend, in part, upon whether the proprietor should know that the invitee, by reason of youth, old age or disability, is incapable of understanding the danger and of taking precautions for his or her own safety under such conditions. A warning sufficient to alert an adult professional dancer to the condition of a dance floor may not be sufficient to absolve the proprietor from liability to a 13 year old pupil for a fall thereon.

Id. at 66, 147 S.E.2d at 553 (emphasis added) (citations omitted). The Court reasoned that, in order to determine whether appropriate care has been exercised, “it is proper to consider the nature of the property, the uses and purposes for which the property in question is primarily intended, and the particular circumstances of the case.” Id. at 67, 147 S.E.2d at 554 (citation omitted) (internal quotation marks omitted).

Though Hedrick was decided under the defunct invitee-licensee regime, the plaintiff in that case was an invitee, meaning she was entitled to the same standard of care as Ms. Cobb in this case. See Lorinovich, 134 N.C. App. at 161, 516 S.E.2d at 646 (“Thus the landowner now is required to exercise reasonable care to provide for the safety of all lawful visitors on his property, the same standard of care formerly required only to invitees.”). Accordingly, in addition to-being sound, Hedrick’s rationale is highly persuasive. “Reasonably safe conditions” in a preschool would be different from those in a factory, bar, or other premises where youthful visitors would not reasonably be foreseeable. For example, the use of electrical socket covers might be reasonable in a nursery, but unreasonably burdensome in an electronics store. The same principle applies to natural conditions. It might be prudent to gate a public nature trail located adjacent to an elementary school to prevent wandering children, but that precaution might not be necessary if the trail is in a secluded area accessible only by motor vehicle.

Defendant argues Hedrick addressed a landowner’s duty as to a minor-invitee injured by an artificial condition of the property, but because Ms. Cobb was injured by a natural condition of the land, the rule in Hedrick does not apply. In other words, Defendant asks us to endorse a bifurcated approach under which the foreseeable characteristics of lawful visitors are completely ignored when the visitor is injured by a natural condition, but accounted for when the visitor is injured by an artificial condition. When the Supreme Court rejected the trichotomy classification system in Nelson, it noted that one of the primary rationales behind keeping the trespasser-licensee-invitee trichotomy was the fear that plaintiff-friendly juries would impose unreasonable burdens on landowners. 349 N.C. at 624, 507 S.E.2d at 888. In rejecting this argument, the Court explained that “juries have properly applied negligence principles in all other areas of tort law, and there has been no indication that defendants in other areas have had unreasonable burdens placed upon them.” Id. at 624-25, 507 S.E.2d at 888. We believe juries are equally capable of applying those principles here without unduly punishing landowners. Furthermore, the bright line approach has the potential to lead to illogical and unjust results.³ Under these circumstances, Nelson eschews the use of mechanistic, bright line rules and encourages us to place the reasonableness of a landowner’s conduct in the hands of the fact finder. See id. at 631, 507 S.E.2d at 892 (“[T]he trichotomy is unjust and unfair because it usurps the jury’s function either by allowing the judge to dismiss or decide the case or by forcing the jury to apply mechanical rules instead of focusing upon the pertinent issue of whether the landowner acted reasonably under the circumstances.”).

Defendant and amicus curiae have not directed us to any decisions stating that the foreseeable characteristics of an invitee (under the old regime) or a lawful visitor (under the current one) have no bearing on the issue of reasonableness when the plaintiff is injured by a natural, as opposed to an artificial, condition. Rather, they rely on several decisions involving the attractive nuisance doctrine. See, e.g., Fitch v. Selwyn Vill, 234 N.C. 632, 635, 68 S.E.2d 255, 257 (1951). The attractive nuisance doctrine raises the standard of care owed to trespassing children relative to that owed to non-child trespassers. See Broadway v. Blythe Indus., Inc., 313 N.C. 150, 153-54, 326 S.E.2d 266, 269-70 (1985) (discussing the doctrine at length). It does so because children, due to their immaturity, have a natural propensity to touch, manipulate, explore, and climb dangerous things that pique their curiosity. See id. at 153, 326 S.E.2d at 269. Therefore, the doctrine generally applies when a defendant maintains a dangerous artificial condition likely to attract child trespassers. See id.

The doctrine is generally inapplicable, however, when trespassing children are injured by natural conditions. See Fitch, 234 N.C. at 635-36, 68 S.E.2d at 257-58 (stating the general rule that the doctrine applies when the defendant maintains artificial, but not natural, bodies of water). This distinction can be explained by the rationale behind the doctrine: by maintaining an artificial condition that is unusually attractive to small children, the landowner impliedly invites the children onto its premises. See Robert 8. Driscoll, The Law of Premises Liability in America: Its Past, Present, and Some Considerations for Its Future, 82 Notre Dame L. Rev. 881, 904 (2006) (stating that the doctrine rests on the proposition that the landowner, “ ‘by maintaining the instrumentality, impliedly invites the child onto his land, and hence owes him a duty of due care under the circumstances’ ” (quoting Glenn Weissenberger et al., The Law of Premises Liability § 2.9, at 22 (3d ed. 2001))). When a child is a lawful visitor, the landowner either has invited the child onto the property or must accept responsibility for the child’s presence for some other policy reason. To the extent attractive nuisance case law has any bearing on this case, which is doubtful, the rationale behind the doctrine suggests landowners must take account of lawful visitors’ foreseeable characteristics.

Whether a natural condition is involved may inform the jury’s determination of what is reasonable under the circumstances, but it provides no basis for forcing the jury to ignore the known or foreseeable characteristics of lawful visitors. We hold that, regardless of whether the plaintiff, who is a lawful visitor, is injured by an artificial or natural condition, the jury must be instructed to consider the known or reasonably foreseeable characteristics of lawful visitors when determining whether the defendant has discharged its duty to exercise reasonable care in maintaining its property for the protection of the plaintiff. Here, the trial court erred in failing to instruct accordingly.

B. Plaintiffs’ Motion for a New Trial

Plaintiffs also argue that, because the trial court’s jury instructions were faulty, the court also erred by failing to grant their Rule 59 motion for a new trial.⁴ “ ‘Generally, a motion for new trial is addressed to the sound discretion of the trial court, and its ruling will not be disturbed absent a manifest abuse of that discretion.’ ” Jackson v. Carland, 192 N.C. App. 432, 444, 665 S.E.2d 553, 560 (2008) (quoting Kinsey v. Spann, 139 N.C. App. 370, 372, 533 S.E.2d 487, 490 (2000)). But where the motion hinges on a question of law or legal inference, we review the trial court’s decision de novo. Id. at 444, 665 S.E.2d at 560-61. Here, Plaintiffs made a motion to the trial court for a new trial on the grounds that the trial court provided erroneous instructions to the jury.

We note the following exchanges between the trial court and the jury in the present case:

The Court: You asked the question. When considering an obvious danger for lawful visitors, how is the age of the lawful visitor factored in? I have given you the law on this issue.

You may now go back to the jury room to deliberate.

Juror: Can you repeat the law?

The Court: I gave it to you.

Juror: You gave us the entire law related to Issue No. 1 [regarding negligence]?

The Court: Yes sir, I told you all early on, remember. It is harder than you thought.

Thus, the issue addressed above — whether and how Ms. Cobb’s age should be factored into the negligence calculus — confused the jury. In light of this confusion, we conclude it is likely that the jury was misled by the trial court’s failure to instruct the jury on this point. Consequently, the instruction was erroneous, and the court’s failure to grant a new trial was error. See Jackson, 192 N.C. App. at 444, 665 S.E.2d at 560-61 (granting a new trial where the trial court provided an incorrect instruction pertaining to a question of law).

New Trial.

Judge McGEE concurs. Judge STROUD concurs in part and dissents in part in a separate opinion.

1 . D. Rodney Knight, Jr. was listed as the guardian ad litem at the time of the judgment dismissing Plaintiff’s case with prejudice. Andrea N. Capua was listed as the guardian ad litem at the time of the order denying Plaintiffs’ motion for a new trial..

2 . Plaintiffs also filed against the “City of Blowing Rock.” However, Defendant denied there was a “City” and again on appeal states that “there is no, ‘City of Blowing Rock’ and this matter has proceeded against the Town of Blowing Rock.” Therefore, we refer to Defendant in the singular.

3 . For example, the amount of a minor plaintiff’s prospective settlement or the odds of that child prevailing at trial could hinge on whether the source of ipjury was natural or artificial, not on whether the defendant was actually negligent.

4 . In their complaint and in the “statement of the case” section of their brief on appeal, Plaintiffs state that Defendant has “waived governmental immunity by participating in the Interlocal Risk Financing Fund of North Carolina:” In its answer, Defendant admitted that it participated “in the local risk financing fund administered by the North Carolina League of Municipalities.” However, Defendant in the “statement of the case” section of its brief on appeal stated that it “has not waived sovereign immunity if applicable.” As Defendant did not cross-appeal this issue regarding sovereign immunity and made no further argument in support of its contention on appeal, this issue is not properly before us. See N.C. R. App. P. 10(a).