Smith v. North Carolina Dept. of Natural Resources & Community Development

• Decision Date: 07 December 1993
• Docket Number: No. 9210IC1002,9210IC1002
• Citation: 112 N.C.App. 739,436 S.E.2d 878
• Court: North Carolina Court of Appeals
• Parties: Martha SMITH, Administratrix of the Estate of Richard Smith, Deceased, v. N.C. DEPARTMENT OF NATURAL RESOURCES & COMMUNITY DEVELOPMENT.

Page 878

436 S.E.2d 878

112 N.C.App. 739

Martha SMITH, Administratrix of the Estate of Richard Smith, Deceased, v. N.C. DEPARTMENT OF NATURAL RESOURCES & COMMUNITY DEVELOPMENT.

No. 9210IC1002.

Court of Appeals of North Carolina.

Dec. 7, 1993.

White and Crumpler by G. Edgar Parker and Joan E. Brodish, Winston-Salem, for plaintiff-appellant.

Attorney General Michael F. Easley by Sp. Deputy Atty. Gen., Elisha H. Bunting, Jr., Raleigh, for the State.

LEWIS, Judge.

On 22 June 1989 plaintiff filed a claim under the North Carolina State Tort Claims Act against the North Carolina Department of Natural Resources and Community Development (hereafter "the State"), seeking $100,000 in damages for the wrongful death of her husband, Richard Carroll Smith. The case was heard in December 1990 before Deputy Commissioner Roger L. Dillard of the North Carolina Industrial Commission. Commissioner Dillard entered an order denying plaintiff's claim on 7 May 1991 after concluding that the State was not negligent and that plaintiff's husband was negligent and the sole and proximate cause of his own death. The full Commission affirmed and adopted this decision on 8 June 1992, and plaintiff now appeals from this order.

On 29 May 1988 plaintiff, her husband, and son, Andrew, were visiting Stone Mountain State Park in Wilkes County, North Carolina. While at the Park they visited Beauty Falls. The water at Beauty Falls flows over a dome-shaped rock before falling 200 feet. The evidence shows that the Smiths had been to Beauty Falls in April 1988, and were aware of the topography of the area and the magnitude of the flow. The Smiths picnicked above the falls, where there is a warning sign which says "Danger, Falls Below." Plaintiff testified that other people were in the same area. Plaintiff explained that they did not feel they were in a dangerous area, because the ground was level and the water level was low due to a drought that summer. Richard Smith and his son walked around a granite rock and played in the water after lunch, while plaintiff napped. Plaintiff awoke to her son's screams, and learned that her husband had slid on the rock and gone over the falls. Richard Smith died as a result of his fall.

On appeal plaintiff argues the full Commission erred in simply adopting the decision of the deputy commissioner without conducting its own hearing and entering its own findings and conclusions. Plaintiff also argues many of the findings of fact and conclusions of law are not supported by the evidence. Finally, plaintiff argues the hearing commissioner and the full Commission erred in failing to admit several of her exhibits into evidence.

I. Review by Full Commission

Plaintiff's initial contention is that the full Commission failed to comply with N.C.G.S. §§ 143-291 and 143-292 by simply adopting the decision of the deputy commissioner without conducting its own hearing and making its own findings of fact and conclusions of law. We disagree. Deputy commissioners have full authority under the Tort Claims Act to carry out the purposes of the Act, and are vested with the same powers as members of the Industrial Commission. According to section 143-296,

[t]he Industrial Commission is authorized to appoint deputies and clerical assistants to carry out the purpose and intent of this Article, and such deputy or deputies are hereby vested with the same power and authority to hear and determine tort claims ... as is by this Article vested in the members of the Industrial Commission.

N.C.G.S. § 143-296 (1990). The statute governing appeals to the full Commission states that the full Commission "may amend, set aside, or strike out the decision of the hearing commissioner and may issue its own findings of fact and conclusions of law." § 143-292 (1990). We find that the legislature's use of the word "may" indicates that although the full Commission is permitted to enter its own findings of fact and conclusions of law, it is not required to do so.

Thus, because deputy commissioners have the same powers as the full Commission and therefore have the authority to conduct hearings and enter findings and conclusions, and because the full Commission is not required to enter its own findings and conclusions, we find the full Commission did not err in the case at hand in adopting the decision of the deputy commissioner as its own.

II. Sufficiency of Evidence

Our standard of review is very limited. The Commission's findings of fact are conclusive on appeal if supported by any competent evidence, Paschall v. North Carolina Department of Correction, 88 N.C.App. 520, 364 S.E.2d 144, disc. review denied, 322 N.C. 326, 368 S.E.2d 868 (1988), and "appellate review ... is limited to two questions of law: (1) whether there was any competent evidence before the Commission to support its findings of fact; and (2) whether the findings of fact of the Commission justify its legal conclusion and decision." Id. at 522, 364 S.E.2d at 145.

A. Findings of Fact

Plaintiff contends that the evidence does not support eight of the Commission's findings of fact. Findings of fact numbers 5 and 6 both concern the location of Richard Smith and his son at the time of the fall. Both findings indicate that the two had disregarded the warning and had travelled downstream to a dangerous area below the sign. Andrew Smith testified that he and his father had walked back up towards some steps. Plaintiff claims this testimony places the two at a spot above the warning sign at the time of the fall, and that it was therefore erroneous for the Commission to find that they were in a dangerous area.

However, Martha Smith testified that they picnicked that day in the area under the danger sign. She testified that after their picnic her husband and son travelled down to a pool of water located between the sign and the falls. This testimony constitutes competent evidence from which the Commission could find that Richard Smith and his son were in a dangerous area below the warning sign at the time of the accident.

Plaintiff also objects to finding of fact 15 in which the Commission stated that there was conflicting testimony over whether other people had been seen in the water around the warning sign. The Commission determined that even if people had been seen in the water, it would not be reasonable to assume that the danger sign could be ignored. Plaintiff again argues that Richard Smith did not venture below the sign, and we again find that competent evidence, Martha Smith's testimony, supports the finding that Richard was below the sign when he slipped and fell. We agree with the Commission that the possible existence of other people in the area would not render the warning sign meaningless.

Plaintiff assigns error to findings of fact 3 and 4 regarding the routes travelled by the Smiths around the falls, finding number 11 regarding a prior fatality at the falls, finding number 12 regarding the admissibility of certain exhibits, and finding number 18 regarding certain photographs and the sloping nature of the area. However, plaintiff presents no argument regarding these objections in her brief before this Court, but only references the first twenty-three pages of the brief, which encompass three different arguments. We find that plaintiff has failed to comply with Rule 28 of the appellate rules, which requires an argument as to each question presented and permits citation to relevant authority and relevant portions of the transcript or record on appeal. N.C.R.App.P. 28(b)(5). Plaintiff's vague reference to the first portion of her brief is inadequate to preserve her objections to these findings of fact. Notwithstanding this error, we find that competent evidence supports the challenged findings of fact.

B. Negligence of State

Plaintiff argues the Commission misapprehended the applicable law and grossly abused its discretion in determining that the State was not negligent, and that it had adequately warned of the danger of the falls and the surrounding area. Plaintiff argues that the State's negligence was a proximate cause of Richard Smith's death, and that liability attaches even if that negligence was not the sole proximate cause. See Branch Banking & Trust Co. v. Wilson County Bd. of Educ., 251 N.C. 603, 111 S.E.2d 844 (1960). Plaintiff claims that the State acted negligently and created a dangerous condition by attempting to warn of the danger of the falls with a sign that was "insufficient, inadequate and incomplete." Plaintiff specifically avers that the State should have warned of the danger of the slippery rock at the top of the falls, a dangerous condition of which the State was aware due to a previous fatality at that location. Plaintiff thus accuses the State of a "negligent undertaking to warn."

We note that visitors to the park are invitees, and the State therefore has a duty to exercise ordinary care in maintaining the premises in a reasonably safe condition, and to warn invitees of hidden dangers or unsafe conditions. See Blevins v. Taylor, 103 N.C.App. 346, 407 S.E.2d 244, cert. denied, 330 N.C. 193, 412 S.E.2d 678 (1991) (stating general rule on invitees). Plaintiff relies on cases from other jurisdictions to support her argument that the State failed to adequately warn of the dangerous conditions. We note that the cases cited involve hidden or nonobvious dangers,...