Core v. N.C. Div. of Parks & Recreation
| Decision Date | 20 April 2021 |
| Docket Number | No. COA20-249,COA20-249 |
| Citation | 858 S.E.2d 345 |
| Court | North Carolina Court of Appeals |
| Parties | James D. CORE, Plaintiff, v. NORTH CAROLINA DIVISION OF PARKS AND RECREATION, Defendant. |
Blanchard, Miller, Lewis & Isley, P.A., by Philip R. Miller III, Raleigh, and Lauren R. McAndrew, for Plaintiff-Appellant.
Attorney General Joshua H. Stein, by Special Deputy Attorney General Alexander G. Walton, for Defendant-Appellee.
¶ 1 Plaintiff James D. Core ("Plaintiff") appeals a decision and order of the North Carolina Industrial Commission ("the Commission") denying Plaintiff's negligence claim against the North Carolina Division of Parks and Recreation ("Defendant") based on the Commission's conclusion that Plaintiff was contributorily negligent. We reverse and remand.
¶ 2 This case returns to the Court a second time. See Core v. N. Carolina Div. of Parks & Rec. , No. COA17-1402, 262 N.C. App. 372, 820 S.E.2d 133, 2018 WL 5796289 (2018) (unpublished). On the weekend of October 3-4, 2014, Plaintiff and members of Plaintiff's college fraternity went to Lake Waccamaw State Park ("Lake Waccamaw"), a state park located approximately seventy-five miles south of Fayetteville, North Carolina, for a camping trip. There was no evidence the group used drugs or alcohol during the trip. Lake Waccamaw is owned and operated by Defendant and reaches a depth of approximately twelve feet. Lake Waccamaw is a Carolina Bay Lake and has a very high botanic acid content. A high botanic acid content affects the appearance of the water, making it appear darker and deeper than it actually is and making it very difficult to determine the depth. Lake Waccamaw promotes swimming, boating, and fishing as some of its attractions.
¶ 3 One attraction of Lake Waccamaw is its picnic area pier, which extends 375 feet into the water. The visitor information center at Lake Waccamaw advertises the pier as "the perfect place for swimming and sunbathing." At the end of the pier is a large swim platform, with two metal swim ladders. Although the deepest part of Lake Waccamaw has a depth of twelve feet, the water around the pier only reaches a "maximum depth ... of about two feet."
¶ 4 On the morning of October 4, 2014, Plaintiff and several members of his fraternity went jogging at Lake Waccamaw. Plaintiff and a few of his fraternity members decided to explore the 375-foot pier. Then, Plaintiff and Nate Middleton ("Middleton") decided to go swimming. Plaintiff and Middleton testified, Plaintiff and his fraternity members observed the swim ladders on the swimming platform, looked for warning signs, noticed how dark the water appeared, and dropped a rock in the water to see if they could see it hit bottom. The water appeared "very dark," and Plaintiff could not see the bottom. Plaintiff noted the several boats he had seen throughout the park, thinking the lake was deep enough for swimming.
¶ 5 Plaintiff decided to enter the water using a shallow dive, a dive he regularly performed in his experience as a competitive swimmer. Plaintiff got a running start and attempted a shallow dive. Plaintiff immediately struck the ground, and "felt a sharp pain throughout the whole right side of [his] arm," and some "sharp stiffness" in his torso area.
¶ 6 In an incident report prepared after Plaintiff's accident, a park ranger stated the group thought the depth of the water was deeper than the actual depth of the lake at that location. The park ranger also noted "[t]he lake's color [was] also dark due to the botanic acids from the organic matter which makes judging the depth very difficult."
¶ 7 Later, it was determined Plaintiff's cervical spine was broken
in three different places. Although Plaintiff recovered, he has a loss of sensation on the right side of his torso and lower right extremity, and weakness in his left hand.
¶ 8 On December 9, 2014, Plaintiff filed this action with the Commission alleging Defendant negligently failed to warn Plaintiff of the hidden danger at Lake Waccamaw. On February 5, 2015, Defendant filed its answer denying negligence and alleging contributory negligence.
¶ 9 In August 2016, Deputy Commissioner Donovan issued an order in favor of Plaintiff, awarding Plaintiff $300,000 in damages. Defendant appealed to the Full Commission, which affirmed that Defendant was negligent, but concluded Plaintiff was contributorily negligent. Deputy Commissioner Tyler Younts ("Deputy Commissioner Younts") filed a dissent, in which he agreed with the majority's conclusion that Defendant was negligent but disagreed with its conclusion that Plaintiff was contributorily negligent. Plaintiff appealed to this Court on September 20, 2017. This Court held "the Commission's conclusions that Plaintiff was contributorily negligent ... was not supported by sufficient findings of fact." Core , 2018 WL 5796289, at *4. The case was then remanded to the Commission. The Commission amended its order with new findings, relying primarily on photographs identified as Plaintiff's Exhibit 7-1 ("Exhibit 7-1") and Plaintiff's Exhibit 7-11 ("Exhibit 7-11").1 The Commission relied on Exhibit 7-1, which depicted Plaintiff on a stretcher, with the marshy shoreline of Lake Waccamaw leading to the pier in the background. The Commission relied on Exhibit 7-11, as it "depicts grass visibly growing out of the water some distance out on the pier." The Commission found Defendant negligent, but found Plaintiff contributorily negligent. Exhibit 7-11 was not taken on October 4, 2014, and the Commission heard no evidence suggesting Exhibit 7-11 accurately depicted the pier on the day of Plaintiff's accident. Further, as Deputy Commissioner Younts discussed in his dissent, other photographic exhibits confirm Plaintiff's uncontradicted testimony that the grass was not near the area where Plaintiff entered the water. Plaintiff timely appealed, alleging the Commission erred in relying on Exhibit 7-1 and Exhibit 7-11 in its amended order.
¶ 10 In an appeal from an opinion and award of the Commission, "[t]his Court's review is limited to a consideration of whether there was any competent evidence to support the Commission's findings of fact and whether these findings of fact support the Commission's conclusions of law." Adams v. Kelly Springfield Tire Co. , 123 N.C. App. 681, 682, 474 S.E.2d 793, 794 (1996) (citation omitted) (emphasis in original). The Commission's findings of fact are "conclusive on appeal when supported by competent evidence, even though there [may] be evidence that would support findings to the contrary." Clawson v. Phil Cline Trucking, Inc. , 168 N.C. App. 108, 113, 606 S.E.2d 715, 718 (2005) (citation and quotation marks omitted). "Competent evidence is evidence that a reasonable mind might accept as adequate to support the finding[s]." Matter of Collins , 251 N.C. App. 764, 766, 797 S.E.2d 28, 31 (2017) (citation and internal quotation marks omitted). The Commission's conclusions of law are reviewed de novo. Coffey v. Weyerhaeuser Co. , 218 N.C. App. 297, 300, 720 S.E.2d 879, 881 (2012) (citing McRae v. Toastmaster, Inc. , 358 N.C. 488, 496, 597 S.E.2d 695, 701 (2004) ). "Under a de novo review, [this C]ourt considers the matter anew and freely substitutes its own judgment for that of the lower tribunal." Fields v. H&E Equip. Servs., LLC , 240 N.C. App. 483, 486, 771 S.E.2d 791, 793-94 (2015) (citation and internal quotation marks omitted).
¶ 11 In Plaintiff's first appeal (" Core I "), Plaintiff argued the Commission erred when it failed to consider the reasonableness of his actions in light of all of the circumstances and any precautions taken by Plaintiff. Core , 2018 WL 5796289 at *5 ; See also Tyburski v. Stewart , 204 N.C. App. 540, 544, 694 S.E.2d 422, 425 (2010). Plaintiff further asserted the Commission's conclusion that Plaintiff was contributorily negligent was wholly inconsistent with its conclusion that the water at the end of the pier was a hidden danger, as Plaintiff could not have acted with "knowledge and appreciation, either actual or constructive, of the danger" if the danger were hidden. See Chaffin v. Brame , 233 N.C. 377, 380, 64 S.E.2d 276, 279 (1951) (citation omitted); Core , 2018 WL 5796289, at *4.
¶ 12 "[A party] 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." Chaffin , 233 N.C. at 380, 64 S.E.2d at 279 (citation omitted). A party can be contributorily negligent without knowledge of the danger of injury which his conduct involves, "if his conduct ignores unreasonable risks or dangers which would have been apparent to a prudent person exercising ordinary care for his own safety." Smith v. Fiber Controls Corp. , 300 N.C. 669, 673, 268 S.E.2d 504, 507 (1980) (citation omitted).
¶ 13 In Core I , this Court held "the Commission's conclusion that Plaintiff was contributorily negligent ... was not supported by sufficient findings of fact" and remanded the case to the Commission for additional findings. Core , 2018 WL 5796289, at *4. The Commission failed to evaluate the reasonableness of Plaintiff's actions in light of the facts of the case. Id. at *5. The Commission "improperly concluded Plaintiff was contributorily negligent on October 4, 2014 based solely on (1) Plaintiff's admission that he did not ‘ascertain the depth of the water at the end of the pier’ and (2) Plaintiff's failure to enter the water by using a swim ladder or jumping feet-first" and that "despite concluding Plaintiff lacked actual knowledge of the dangerous condition of shallow water, the Commission made no specific finding(s) as to whether or why the danger should have been obvious to Plaintiff." Id. at *10.
¶ 14 The Commission...
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