Chelsea Amanda Brooke Cobb By v. Town of Blowing Rock

Decision Date05 July 2011
Docket NumberNo. COA09–1443.,COA09–1443.
PartiesChelsea Amanda Brooke COBB by and through D. Rodney KNIGHT, Jr., Her Guardian Ad Litem, and Robert B. Cobb, Father of Plaintiff, Individually, Plaintiffs,v.TOWN OF BLOWING ROCK, A Municipal Corporation, and City of Blowing Rock, A Municipal Corporation, Defendants.
CourtNorth Carolina Court of Appeals

713 S.E.2d 732

Chelsea Amanda Brooke COBB by and through D. Rodney KNIGHT, Jr., Her Guardian Ad Litem, and Robert B. Cobb, Father of Plaintiff, Individually, Plaintiffs,
v.
TOWN OF BLOWING ROCK, A Municipal Corporation, and City of Blowing Rock, A Municipal Corporation, Defendants.

No. COA09–1443.

Court of Appeals of North Carolina.

July 5, 2011.


[713 S.E.2d 733]

Appeal by Plaintiffs from judgment entered 17 October 2008 and an order entered 30 March 2009 by Judge Anderson D. Cromer in Superior Court, Watauga County. Heard in the Court of Appeals 12 May 2010.

Brown Moore & Associates, PLLC, by R. Kent Brown, for Plaintiffs-appellants.

Clawson & Staubes, PLLC, by Andrew J. Santaniello and Michael J. Kitson, for Defendant-appellee.Poisson, Poisson & Bower, PLLC, by E. Stewart Poisson, and Goldsmith, Goldsmith & Dews, P.A., by Frank Goldsmith, for amicus curiae North Carolina Advocates for Justice.Cranfil Sumner & Hartzog LLP, by Kari R. Johnson, for amicus curiae NC Association of Defense Attorneys.

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

[713 S.E.2d 734]

against the Town of Blowing Rock 2 (“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 Plaintiff's 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).

[713 S.E.2d 735]

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

[713 S.E.2d 736]

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 land owner 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...

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3 cases
  • Draughon v. Evening Star Holiness Church of Dunn
    • United States
    • North Carolina Supreme Court
    • 5 Junio 2020
    ...by owners and occupiers of land to invitees now applies to all lawful visitors. See, e.g. , Cobb ex rel. Knight v. Town of Blowing Rock , 213 N.C. App. 88, 94, 713 S.E.2d 732, 736–37 (2011) (stating that "Nelson thus abolished the distinction between ‘licensees’ and ‘invitees’ and applied t......
  • King v. Brooks
    • United States
    • North Carolina Court of Appeals
    • 18 Diciembre 2012
    ...an instruction to the jury where the instruction misstated the applicable law for the jury. Cobb ex rel. Knight v. Town of Blowing Rock, ––– N.C.App. ––––, ––––, 713 S.E.2d 732, 736, 740 (2011)(affirming, in both the majority and dissenting opinion, the trial court's refusal to instruct the......
  • Cobb v. Town of Blowing Rock
    • United States
    • North Carolina Supreme Court
    • 27 Enero 2012
    ...TEXT STARTS HERE Appeal pursuant to N.C.G.S. § 7A–30(2) from the decision of a divided panel of the Court of Appeals, ––– N.C.App. ––––, 713 S.E.2d 732 (2011), finding error in a judgment entered on 17 October 2008 and an order entered on 30 March 2009, both by Judge Anderson D. Cromer in S......

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