All opinions
are subject to modification and technical correction prior to official
publication in the North Carolina Reports and North Carolina Court of Appeals
Reports. In the event of discrepancies between the electronic version of an
opinion and the print version appearing in the North Carolina Reports and North
Carolina Court of Appeals Reports, the latest print version is to be considered
authoritative.
NO. COA06-92
NORTH CAROLINA COURT OF APPEALS
Filed: 5 December 2006
ELMER SHERMAN WEBB,
Plaintiff,
v. North Carolina Industrial Commission
I.C.
File No. TA-17712
NORTH CAROLINA DEPARTMENT
OF TRANSPORTATION,
Defendant.
Appeal by plaintiff from decision and order entered 13
October 2005 by Commissioner Laura Kranifeld Mavretic for the Full
Commission. Heard in the Court of
Appeals 18 September 2006.
Attorney
General Roy Cooper, by Assistant Attorney General Laura J. Gendy, for the
defendant-appellant.
Sarah
Ellerbe for the plaintiff-appellee.
ELMORE, Judge.
Elmer Sherman Webb (plaintiff) and his wife stopped at the
southbound I-95 rest area near Selma, North Carolina, on 30 December 1999. While Mrs. Webb was in the restroom,
plaintiff exited the car to purchase a newspaper. Plaintiff observed that there was a sidewalk that led to the
newspaper kiosk, but that a more direct route could be taken across some grass
and a shrub bed covered in pine straw.
Plaintiff chose the more direct route.
When nearing the newspaper kiosk, plaintiff stepped from the grass onto
the pine straw. The pine straw obscured
metal landscape edging that bordered the shrub bed. Plaintiff’s foot became caught between the metal border, out of
view beneath the pine straw, and the concrete sidewalk. Plaintiff lost his balance and fell, landing
on the sidewalk and fracturing his left knee and left elbow. Plaintiff’s injuries required medical
treatment and rehabilitation over approximately six months.
At the time of the injury, the North Carolina Department of
Transportation (defendant) contracted with a landscaper to perform weekly
routine landscaping maintenance duties at the rest stop. These duties included mulching and putting
pine straw in the shrub beds, as well as mowing and edging the grass. Defendant inspected the rest areas two to
three times per week for cleanliness, plumbing problems, vandalism, and ground
maintenance, including potential safety hazards. It was routine maintenance practice to keep pine straw and grass
edged away from the metal border.
Plaintiff sued defendant for negligence under the Tort
Claims Act. N.C. Gen. Stat. §143-291 et
seq. (2005). Defendant raised the
defense of contributory negligence. A
deputy commissioner for the North Carolina Industrial Commission (Commission)
found that plaintiff failed to prove negligence and that plaintiff was
contributorily negligent by choosing to walk on the grass and pine straw. The deputy commissioner denied plaintiff’s
claim. Plaintiff timely appealed to the
Full Commission, and on 13 October 2005, the Full Commission determined that
defendant was negligent in creating the condition that caused plaintiff’s
injury, but also determined that plaintiff was barred from any relief by his
own contributory negligence.
The standard of review for an appeal from a decision by the
Full Commission under the Torts Claims Act “shall be 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 competent evidence to support them.” N.C. Gen. Stat. §143-293 (2005).
“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.” Simmons v. Columbus County
Bd. of Educ., 171 N.C. App. 725, 728, 615 S.E.2d 69, 72 (2005). “The court’s duty goes no further than to
determine whether the record contains any evidence tending to support the
finding.” Anderson v. Construction Co., 265 N.C. 431, 434, 144 S.E.2d
272, 274 (1965). “[W]hen 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.” Simmons v. N.C. Dept. of
Transportation, 128 N.C. App. 402, 405–06, 496 S.E.2d 790, 793 (1998). Thus, we will first review the record to
determine whether competent evidence exists to support the finding of the Full
Commission that plaintiff was contributorily negligent.
Plaintiff appeals from the Full Commission’s decision on the
grounds that the Full Commission erred in finding plaintiff contributorily
negligent because there was no evidence that plaintiff could reasonably have
appreciated the danger he was in while walking across the premises of the rest
stop. We disagree.
The Full Commission made, in part, the following two
findings:
3. Plaintiff testified
that he did not use the paved sidewalk and chose the shortest route to the
newspaper kiosk because of his arthritis of the spine. After crossing the grass and before stepping onto the sidewalk to reach
the newspaper machine, plaintiff stepped directly on the pine straw instead of
on the clear, paved concrete walkway because, although he looked at the
shrubbery bed and saw the pine straw, it appeared “benign.”
. . .
8. Plaintiff was
negligent in that he failed to adequately observe the area where he was walking
and failed to exercise ordinary care when he stepped into an area that was a
landscaped section for shrubs and other plants and that was clearly not a
walkway. Plaintiff had a clear, safe
route of travel if he walked on the sidewalk.
Plaintiff could see the shrub bed, which was bordered by grass on one
side and a sidewalk on the other. Given
the choice of walking on the sidewalk or stepping into the landscaped shrub
bed, plaintiff failed to exercise ordinary care when he stepped into the
landscaped bed, and his decision to ignore the safe route constitutes
contributory negligence. Even though
the edging was covered by the pine straw, it was apparent that pine straw was
not a surface intended for foot travel, and, therefore, it was unreasonable for
plaintiff to walk on the shrub bed when a clear sidewalk was available
specifically for the purpose of pedestrian travel.
There was competent evidence in the record that supported
these findings of fact. Plaintiff
admitted to observing the sidewalk route to the newspaper machine, but
deliberately choosing the path through
the shrubbery. He also admitted to
observing the pine straw and to stepping on it, rather than a plant, because he
gardened and was familiar with plants.
This court has held that reasonably drawn inferences are permissible, Norman
v. N.C. Dept. of Transportation, 161 N.C. App. 211, 224, 558 S.E.2d 42, 51
(2003), and it is reasonable for the Full Commission to infer that
plaintiff knew the shrubbery beds were not intended for foot travel and that
the clear sidewalk would have been a more prudent choice.
The second question is whether these findings of fact
support the Full Commission’s legal conclusion that plaintiff is barred from
recovery by his contributory negligence.
Plaintiff argues that to be contributorily negligent he must have been
able to “appreciate that his conduct [put] him at some sort of likelihood for
risk,” and that no “ordinary, reasonable person in his position would have
anticipated that under the pine straw lurked metal landscaping borders.” Plaintiff is correct in that this court has
held that plaintiff “cannot be guilty of contributory negligence unless he acts
or fails to act with knowledge and appreciation, either actual or constructive,
of the danger of injury which his conduct involves.” Shoffner v. Raleigh, 7 N.C. App. 468, 473, 173 S.E.2d 7,
10 (1970). However, it was no stretch
for the Full Commission to conclude that plaintiff should have had
constructive, if not actual, knowledge that deviating from an intended walking
path into pine straw brings with it some danger of injury. “[O]ne who has capacity to understand and
avoid a known danger and fails to take advantage of that opportunity, and
injury results, . . . is chargable with contributory” negligence. Presnell v. Payne, 272 N.C. 11, 13,
157 S.E.2d 601, 602 (1967). Here,
plaintiff clearly had the capacity to understand that his shortcut carried a
safety risk. “Prudence, rather than
convenience, should have motivated the plaintiff’s choice.” Rockett v. Asheville, 6 N.C. App.
529, 533, 170 S.E.2d 619, 621 (1969).
This Court finds that there was competent evidence for the
Full Commission’s findings of fact and that the findings of fact support the
Full Commission’s conclusions of law.
Thus, the Full Commission’s decision and order is affirmed.
Affirmed.
Chief Judge MARTIN and Judge JACKSON concur.