Lanier v. North Carolina State Highway Commission, 762IC384
Decision Date | 03 November 1976 |
Docket Number | No. 762IC384,762IC384 |
Citation | 31 N.C.App. 304,229 S.E.2d 321 |
Parties | Harry LANIER, Administrator of the Estate of Theodocia Lanier, v. NORTH CAROLINA STATE HIGHWAY COMMISSION. |
Court | North Carolina Court of Appeals |
Atty. Gen., Rufus, L. Edmisten by Asst. Atty. Gen. Ralf F. Haskell, Raleigh, for the State.
Milton E. Moore, Moore & Moore, Williamston, for claimant-appellant.
In his sole assignment of error, claimant contends that the Commission erred in its failure to find, as a matter of law, that the pit in question was an attractive nuisance. In reviewing an order of the Industrial Commission, we are guided by the principle that the order will stand if its findings of fact are supported by competent evidence and if its conclusions of law are supported by the findings of fact. Tanner v. Dept. of Correction, 19 N.C.App. 689, 200 S.E.2d 350 (1973).
At the time of the drowning, deceased was at the excavation site without invitation or license from the Commission. As such, she was a trespasser, to whom the Commission owed only the duty not to injure her willfully or wantonly. Dean v. Construction Co., 251 N.C. 581, 111 S.E.2d 827 (1960); McLamb v. Jones, 23 N.C.App. 670, 209 S.E.2d 854 (1974). The attractive nuisance doctrine, however, represents an exception to the general rule regarding the liability of landowners for injuries sustained on the premises by trespassers. This Court has stated:
McCombs v. City of Asheboro, 6 N.C.App. 234, 242--43 170 S.E.2d 169, 175 (1969), citing 65 C.J.S., Negligence § 63(76) p. 815.
North Carolina has consistently ruled that ponds, pools, lakes, streams, reservoirs, and other bodies of water do not Per se constitute attractive nuisances. Matheny v. Mills Corp., 249 N.C. 575, 107 S.E.2d 143 (1959); Stribbling v. Lamm, 239 N.C. 529, 80 S.E.2d 270 (1954); Fitch v. Selwyn Village, 234 N.C. 632, 68 S.E.2d 255 (1951). Claimant recognizes the general rule but argues that the presence of the sharp drops and deep holes in the pit bring this case within an exception to the rule. We cannot agree. Every boy of water is potentially subject to sharp drops and deep holes such as existed in this case. This possible danger was, or should have been, known to claimant's intestate.
There is an additional reason that the attractive...
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