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Filed: 2 November 2004
NORTH CAROLINA COURT OF APPEALS
NO. COA03-1615
TINYA CHERNEY,
Plaintiff
v. North Carolina Industrial Commission
I.C. File No. TA-16246
NORTH CAROLINA
ZOOLOGICAL PARK,
Defendant
Appeal by plaintiff from opinion and award entered 28 July 2003 by the North Carolina Industrial Commission. Heard in the Court of Appeals 14 September 2004.
Knott,
Clark, Berger & Whitehurst, L.L.P., by Joe Thomas Knott, III,
Michael W. Clark, and Bruce W. Berger, for plaintiff appellant.
Attorney
General Roy Cooper, by Special Deputy Attorney General William H. Borden, for
defendant appellee.
McCULLOUGH,
Judge.
Tinya
Cherney (“plaintiff”) appeals the opinion and award entered 28 July 2003 by the
North Carolina Industrial Commission.
The
facts and procedural history pertinent to the instant appeal are as follows: On
18 July 1998, plaintiff visited the North Carolina Zoological Park (“the Zoo”)
in Asheboro as a business invitee. While plaintiff was inside the Zoo’s African
Pavilion, a thirty-four-foot-tall ficus benjamina tree (“ficus tree”)
broke from its support cables and fell onto a nearby thirty-eight-foot-tall
Traveler’s tree, a portion of which broke off and struck plaintiff. Plaintiff
sustained multiple injuries, including a fractured right femur, fractured
vertebrae, and fractured ribs. She subsequently underwent surgery and incurred
medical expenses exceeding $80,000.00.
On
7 September 1999, plaintiff filed a claim for damages against the Zoo pursuant
to the Tort Claims Act, N.C. Gen. Stat. §143-291, et seq. In the
affidavit in support of her claim (“the affidavit”), plaintiff alleged her
injuries and damages resulted from the negligence of Zoo employees Ron Ferguson
(“Ferguson”) and Virginia Wall (“Wall”). Ferguson served as Chief Gardener for
the Zoo and Wall was the Curator of Horticulture for the Zoo. Plaintiff’s affidavit
contained the following allegations:
That
the injury or property damage occurred in the following manner: Mrs. Cherney
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[e] 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 the Zoo personnel and
not subject to wind or any natural force.
On
21 December 1999, defendant filed an answer denying the allegations of the
affidavit. Defendant asserted that plaintiff failed to properly “allege a
negligent act or omission on the part of the alleged employees of defendant”
and failed to properly “state a claim over which there is jurisdiction over the
person and subject matter and . . . upon which relief may be granted.”
On
13 August 2001, Deputy Commissioner Richard Ford (“Deputy Commissioner Ford”)
heard arguments and received evidence from both parties. In an order filed 30
October 2001, Deputy Commissioner Ford ordered that defendant pay plaintiff
$500,000.00 in compensatory damages.
Defendant
appealed Deputy Commissioner Ford’s opinion and award, and on 29 April 2002,
the matter came before the Full Commission for review. In an opinion and award
filed 28 July 2003, a majority of the Full Commission reversed Deputy
Commissioner Ford’s prior opinion and award. The majority made the following
pertinent findings of fact:
3. There
was no evidence that the first of the two named employees, Ron Ferguson had any
involvement with the tree that fell on plaintiff.
. . . .
18. The
greater weight of the evidence indicates that Ms. Wall neither 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.
Based upon these findings of fact, the
majority made the following pertinent conclusions of law:
2. Pursuant
to N.C. Gen. Stat. §143-291, plaintiff must show that the injuries sustained
were the proximate result of a negligent act of a named state employee acting
within the course and scope of his employment.
. . . .
4. The greater
weight of the evidence shows that Ms. Wall’s practices and management of her
staff in the care of the ficus benjamina 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 breached any applicable standard of care. Therefore,
plaintiff has failed to prove negligence and is not entitled to recovery.
Commissioner
Bernadine S. Ballance (“Commissioner Ballance”) dissented from the Full
Commission’s decision and order. Plaintiff appeals.
The
issues on appeal are: (I) whether the Full Commission applied the correct legal
standards in its decision; and (II) whether the Full Commission’s findings of
fact support its conclusions of law.
Under
the Tort Claims Act, “jurisdiction is vested in the Industrial Commission to
hear claims against the State of North Carolina for personal injuries sustained
by any person as a result of the negligence of a State employee while acting
within the scope of his employment.” Guthrie v. State Ports Authority,
307 N.C. 522, 536, 299 S.E.2d 618, 626 (1983). On appeal from a decision by the
Full Commission, this Court reviews the decision 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 (2003).
N.C.
Gen. Stat. §143-297(2) (2003) requires that a plaintiff filing suit against a
state agency provide by affidavit “[t]he name of the department, institution or
agency of the State against which the claim is asserted, and the name of the
State employee upon whose alleged negligence the claim is based[.]” This Court
has previously noted that “[t]he purpose of requiring a claimant to name the
negligent employee of the State agency is to enable the agency to investigate
the employee involved and not all employees.” Davis v. N.C. Dept. of Human
Resources, 121 N.C. App. 105, 111, 465 S.E.2d 2, 6 (1995), disc. review
denied, 343 N.C. 750, 473 S.E.2d 612 (1996).
Here,
plaintiff alleged that Ferguson and Wall were negligent both individually and
in their supervision of staff maintaining the ficus tree which fell on
plaintiff.
In
the case sub judice, a review of the record shows that the Commission
examined Ms. Wall’s supervision of her department and all its personnel in the
performance of their duties. During her deposition, Ms. Wall identified the
staff members who performed the various tasks associated with this ficus tree.
The plaintiff never moved to amend her complaint to identify any other employee
as negligent even though the failure to do so may be fatal to her case. Laughinghouse
v. State ex rel. Ports Railway Comm., 101 N.C. App. 375, 376-77, 399 S.E.2d
587, 589, disc. review denied, 328 N.C. 732, 404 S.E.2d 871 (1991), cert.
denied, 502 U.S. 1029, 116 L. Ed. 2d 772 (1992).
Here
plaintiff had to establish that the State as a landowner breached its duty to
exercise reasonable care in the maintenance of its premises, the Zoo. Nelson
v. Freeland, 349 N.C. 615, 632, 507 S.E.2d 882, 892 (1998), reh’g denied,
350 N.C. 108, 533 S.E.2d 467 (1999).
The
duty of care depended upon the procedures for monitoring the ficus tree in
question. There is no evidence that any of the staff members deviated from the
guidelines Ms. Wall set to accomplish these goals.
The
Commission made the following finding of fact:
18. The
greater weight of the evidence indicates that Ms. Wall neither 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.
(Emphasis added.)
It
then made the following conclusion of law:
4. The
greater weight of the evidence shows that Ms. Wall’s practices and
management of her staff in the care of the ficus benjamina 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 breached any applicable standard of
care. Therefore, plaintiff has failed to prove negligence and is not entitled
to recovery. Bolkhir, 321 N.C. at 709, 365 S.E.2d at 900, N.C. Gen.
Stat. §143-291.
(Emphasis added.) In each, the actions of
the staff are necessarily encompassed in the applicable finding and conclusion.
The Commission concluded that Ms. Wall’s actions were not negligent and that
plaintiff failed to prove that her procedures, policies or staff management
breached any standard of care. There is no evidence that any of her staff
failed to follow any of her procedures. Thus it is clear that the Commission
considered the actions of the unnamed staff in concluding that Ms. Wall was not
negligent and properly applied the standard of review required by Davis.
The
Nelson case properly sets forth the duty of care owed to members of the
public by landowners where our Supreme Court stated:
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, 349 N.C. at 632, 507 S.E.2d at 892. The Bolkhir
case cited by the Commission, although it predates Nelson, is consistent
with the standard set forth therein.
We
thus hold that the Commission utilized the proper legal standards in its review
of the Deputy Commissioner’s award.
We
must next consider whether the findings of fact are supported by competent
evidence and whether the Commission’s findings of fact justify its conclusions
of law. Simmons v. N.C. Dept. of Transportation, 128 N.C. App. 402, 405,
496 S.E.2d 790, 793 (1998).
Competent
evidence in the record shows that the ficus tree had been monitored under the
existing protocol for over 10 years without incident, that the tree appeared
healthy, that the number of cables supporting the tree was double the
recommended minimum, and that the care provided exceeded industry standards for
monitoring, record keeping, pruning, watering, cabling and the like.
Given
the evidence as briefly summarized above, these facts do support the
Commission’s conclusion of law that Ms. Wall was not negligent as stated in
Conclusion of Law No. 4, although there was evidence to the contrary.
As
Bolkhir v. N.C. State Univ., 321 N.C. 706, 710, 365 S.E.2d 898,
900-01 (1988), cited by the Commission states:
With regard to the second element, this Court
has defined proximate cause as
“a
cause which in natural and continuous sequence, unbroken by any new and
independent cause, produced the plaintiff’s 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.”
Hairston
v. Alexander Tank & Equipment Co.,
310 N.C. at 233, 311 S.E.2d at 565 (citations omitted). Foreseeability is thus
a requisite of proximate cause. Id. To establish foreseeability, the
plaintiff must prove that defendant, in the exercise of reasonable care, might
have foreseen that its actions would cause some injury. Id. at 234, 311
S.E.2d at 565. The defendant must exercise “reasonable prevision” in order to
avoid liability. Id. The law does not require a defendant to anticipate
events which are merely possible but only those which are reasonably
foreseeable. Id.
Having
concluded that plaintiff failed to prove that Ms. Wall’s procedures or staff
management was negligent in any manner and it was unforeseeable that this ficus
tree would fall, the Commission denied recovery. Based on the evidence
supporting this determination, we cannot substitute a different judgment.
Therefore, the decision of the Commission is affirmed.
Affirmed.
Judge
HUNTER concurs.
Judge
TIMMONS-GOODSON dissents.
Filed: 2 November 2004
NORTH CAROLINA COURT OF APPEALS
NO. COA03-1615
TINYA CHERNEY,
Plaintiff
v. North Carolina Industrial Commission
I.C. File No. TA-16246
NORTH CAROLINA
ZOOLOGICAL PARK,
Defendant
TIMMONS-GOODSON,
Judge, dissenting.
Because
I conclude that the Industrial Commission erred in its opinion and award, I
respectfully dissent.
“Under
the Tort Claims Act, jurisdiction is vested in the Industrial Commission to
hear claims against the State of North Carolina for personal injuries sustained
by any person as a result of the negligence of a State employee while acting
within the scope of his employment.” Guthrie v. State Ports Authority,
307 N.C. 522, 536, 299 S.E.2d 618, 626 (1983). On appeal from a decision by the
Full Commission, this Court reviews the decision 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 (2003).
Nevertheless, “[i]f the [F]ull Commission applied an incorrect standard of
review to the deputy commissioner’s findings, this Court could reject the
[F]ull Commission’s findings and conclusions as errors of law.” Hummel v.
University of N.C., 156 N.C. App. 108, 112-13, 576 S.E.2d 124, 127, disc.
review granted, 357 N.C. 459, 585 S.E.2d 757 (2003), disc. review
improvidently granted, 358 N.C. 130, 591 S.E.2d 518 (2004).
This
Court has previously noted that “[t]he purpose of requiring a claimant to name
the negligent employee of the State agency is to enable the agency to
investigate the employee involved and not all employees.” Davis v. North
Carolina Dept. of Human Resources, 121 N.C. App. 105, 111, 465 S.E.2d 2, 6
(1995), disc. review denied, 343 N.C. 750, 473 S.E.2d 612 (1996).
However, “although the Tort Claims Act is strictly construed, the rule of
strict construction should not be replaced by one of ‘technical stringency.’“ Id.
(quoting Distributors, Inc. v. Dept. of Transp., 41 N.C. App. 548, 550,
255 S.E.2d 203, 205, cert. denied, 298 N.C. 567, 261 S.E.2d 123 (1979)).
In
Davis, this Court concluded that the plaintiff’s affidavit “gave
sufficient notice to defendant to allow it to narrow its investigation to those
involved[,]” in that the affidavit “named the correct state agency, as required
by section 143-297, the specific division of that agency, as well as the
[location] where the alleged negligence took place.” 121 N.C. App. at 111, 465
S.E.2d at 6. Despite the affidavit’s failure to name the specific employee
found negligent by the Full Commission, we affirmed the Full Commission’s
ruling, noting that “the objective of section 143-297 was achieved.” Id.
Our
decision in Davis was consistent with previous determinations by this
Court, including Distributors, Inc. In Distributors, Inc.,
plaintiff’s affidavit named only one of the two employees whose “negligence
combined and concurred” to injure plaintiff. 41 N.C. App. at 552, 255 S.E.2d at
206. However, we determined that “[t]he name of Joe Bill Moxley, the driver of
the truck, and other information in plaintiff’s affidavit gave to defendant
sufficient notice of which employee or employees were involved so that
defendant could properly confine its investigation.” Id. Similarly, in Smith
v. N.C. Dep’t of Transp., 156 N.C. App. 92, 576 S.E.2d 345 (2003), the
plaintiff named the Secretary of Transportation, two division managers, and
“unknown employees” as the individuals directly responsible for the safety of a
particular railroad crossing. This Court determined that the “names and
information [provided in plaintiff’s affidavit] gave defendant sufficient
information to ‘enable the agency to investigate the employee actually involved
rather than all employees.’“ Id. at 100, 576 S.E.2d at 351 (quoting
Distributors, Inc., 41 N.C. App. at 551, 255 S.E.2d at 206). We thus
concluded that the plaintiff was not required to name the specific employee
responsible for placing a sign at the railroad crossing.
In
the instant case, the Full Commission’s decision reversed the opinion and award
of Deputy Commissioner Ford, who had previously found that defendant’s
employees had been negligent in their duties with respect to plaintiff’s
injuries. Deputy Commissioner Ford had concluded that both Wall and the
personnel under her supervision were negligent in their care and maintenance of
the tree. However, on appeal, the Full Commission based its denial of
plaintiff’s claim upon its determination that plaintiff had failed to
demonstrate that either of the two employees named in the affidavit were
negligent. Specifically, the Full Commission found that “[t]here was no
evidence that . . . Ron Ferguson had any involvement with the tree that fell on
plaintiff,” and that “[t]here 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.” Thus, because the Full Commission
determined that “[plaintiff] failed to prove that either of the named employees
of defendant, Ron Ferguson and Virginia Wall[,] breached any applicable
standard of care,” the Full Commission concluded that “plaintiff has failed to
prove negligence and is not entitled to recovery.” I conclude that the Full
Commission erred.
Plaintiff’s
affidavit contains a detailed depiction of how her injuries occurred and
specifically states that the injuries occurred inside the African Pavilion. The
affidavit names Ferguson and Wall as negligent employees and contains reference
to their supervisory titles. The affidavit alleges that “[t]he 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[,]” and it states that “[t]he ficus tree was under the
exclusive control of the Zoo personnel.” I conclude that plaintiff’s affidavit
provides “sufficient notice to defendant to allow it to narrow its
investigation to those involved” in the maintenance of the ficus tree,
including the personnel supervised by Wall. Davis, 121 N.C. App. at 111,
465 S.E.2d at 6.
However,
there is no indication that the Full Commission considered whether any of
Wall’s personnel were negligent in their duties. The Full Commission’s own
findings of fact and conclusions of law indicate that it confined its review to
the two employees named in the affidavit. By placing emphasis on the words
“management” and “supervision” contained within the Full Commission’s finding
of fact number eighteen and conclusion of law number four, the majority
concludes that the Full Commission considered the actions of Wall’s staff in
its opinion and award. I would not make such a leap. Although I recognize that
the Full Commission serves as an appellate committee and is given the authority
to reverse the decision of a Deputy Commissioner, I conclude that the Full
Commission’s decision in the instant case involved the application of a
“technical stringency,” and thus runs counter to the legislative purpose of the
Tort Claims Act. I would therefore hold that the Full Commission erred in
failing to consider the negligence of the personnel supervised by Wall, and,
accordingly, I would reverse and remand the case.