{
  "id": 11890624,
  "name": "FRANCES G. JERNIGAN, Plaintiff v. N.C. DIVISION OF PARKS AND RECREATION, Defendant",
  "name_abbreviation": "Jernigan v. N.C. Division of Parks & Recreation",
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  "casebody": {
    "judges": [
      "Judges EAGLES and WALKER concur."
    ],
    "parties": [
      "FRANCES G. JERNIGAN, Plaintiff v. N.C. DIVISION OF PARKS AND RECREATION, Defendant"
    ],
    "opinions": [
      {
        "text": "JOHN, Judge.\nPlaintiff appeals a ruling of the North Carolina Industrial Commission (the Commission) denying her claim against defendant N.C. Division of Parks and Recreation for damages allegedly suffered upon tripping over a raised nail on a boardwalk at Fort Mac\u00f3n State Park on 9 November 1991. We affirm the Commission.\nThe standard governing our review of decisions of the Commission is quite limited. If there is any competent evidence in the record to support the Commission\u2019s findings of fact, they must be upheld; further, if the Commission\u2019s findings of fact support its conclusions of law and decision, they will not be overturned. Smith v. N.C. Dept. of Nat. Resources, 112 N.C. App. 739, 743, 436 S.E.2d 878, 881 (1993), disc. review denied, 336 N.C. 74, 445 S.E.2d 37 (1994).\nPlaintiff initially objects to several of the Commission\u2019s findings of fact. First, she contends there is no evidence to support its finding that:\n4. . . . Mrs. Fields [plaintiff\u2019s sister] testified that she did not contact any park employee on Saturday to report the serious fall of her sister nor did she indicate to the park employee on Sunday anything more than just that her sister had fallen and was hurt as a result of the fall. There was nothing to prevent Mrs. Fields or any of the plaintiff\u2019s companions from reporting to the ranger on duty on the date of the accident what happened to the plaintiff in specific detail.\nPlaintiff\u2019s objection is supported by the uncontradicted testimony of Edith Fields, not cited by the Commission, that she returned to the park on Saturday, the day of the accident, after taking her sister to the hospital, yet was unable to locate a park employee so as to report the accident. It was only when she again went to the park on Sunday that she located such an employee.\nHowever, the cited findings of fact have no bearing on plaintiff\u2019s case. The Commission\u2019s finding that the park was notified the day following the accident rather than on the day it occurred is irrelevant to the outcome, as is that addressing whether plaintiff\u2019s companions described the accident \u201cin specific detail\u201d to the park employee on duty. Thus, assuming arguendo finding of fact number four is erroneous, it may be disregarded as surplusage and the Commission\u2019s Decision and Order nevertheless upheld.\nPlaintiff next objects to the Commission\u2019s finding that: \u201cAccording to Mr. Murphy [the park attendant], the nail [upon which plaintiff tripped] was a little less than one-quarter inch high ....\u201d This finding is supported by competent evidence. Admittedly James Patrick Murphy (Murphy) originally said the nail was half an inch high when asked by Park Superintendent Jody Merritt (Superintendent Merritt) to give information about the accident. However, when requested at his deposition to draw a representation of the distance the nail protruded from the boardwalk, Murphy drew a line slightly less than a quarter inch in length. The Commission, as the arbiter of the credibility of witnesses and the weight given their testimony, Russell v. Lowes Product Distribution, 108 N.C. App. 762, 765, 425 S.E.2d 454, 457 (1993), was entitled to resolve the conflict in Murphy\u2019s testimony and adopt the latter description of the length of the nail.\nPlaintiff also contends the Commission erred in finding that:\n9. There was no evidence directly or indirectly which would indicate that the defendant or any of its employees or agents had notice, either directly or implied, of any protruding nail located on the bathhouse boardwalk prior to the plaintiff\u2019s fall.\nPlaintiff argues park employees admitted seeing raised nails in the boardwalk on occasions prior to her fall. The record supports plaintiff\u2019s assertion, and the Commission made findings stating as much. However, it is apparent the finding at issue refers to the park employees\u2019 lack of notice that the actual nail plaintiff tripped upon was protruding from the boardwalk. Thus interpreted, the Commission\u2019s finding is supported by the record.\nIn addition, plaintiff assigns error to the following finding of fact:\n10. The defendant had in place a means of reasonable inspection of the bathhouse early in the morning and walking down this boardwalk looking for unsafe conditions. It was not necessary for the defendant to have written procedures as to nail checking in effect in view of the fact of the firmly established opening routine by the rangers and the lack of any reported accidents to the defendant caused by protruding nails other than that of the plaintiff. The defendant conducted reasonable inspections for protruding nails as evidenced by only the plaintiff\u2019s reported fall in the context of 10,000,000 visitors during the tenure of park Superintendent Merritt.\nPlaintiff denies there existed evidence of a \u201cfirmly established opening routine\u201d and a reasonable procedure for inspecting the boardwalk. To the contrary, competent evidence in the record reveals that employees walked down the boardwalk daily to open the bathhouse, and that in the course of this routine the attendant on duty would conduct a general visual inspection of the park. If a nail was discovered sticking out of the boardwalk, the attendant would hammer it down or ask another employee to do so. Further, Superintendent Merritt testified that in his eleven years of employment at the park, which had accommodated over 10,000,000 visitors during that time, there had been no reports of individuals tripping over nails or being injured on a nail. These findings, sustained by evidence in the record, support the additional finding that the park had in place a reasonable system of identifying and remedying raised nails.\nPlaintiff insists, without citation, that \u201clack of prior injury does not prove lack of negligence.\u201d Certainly the use of \u201cnonoccurrence evidence\u201d to establish lack of negligence is problematical in any case, in that there may have been a number of similarly injured individuals injured who simply failed to come forward. See Paul R. Rice, Evidence: Common Law and Federal Rules of Evidence \u00a7 3.02 at 193 (2d ed. 1990). Moreover, some may have complained, but not to the individual testifying on the defendant\u2019s behalf. Id. at 194.\nBecause each of these possibilities significantly lowers the relevance of nonoccurrence evidence, courts have required that the number of potential occurrences be sufficiently high to create a probability that someone would have complained to the person testifying about the nonoccurrence of complaints if a basis for a complaint, such as a defective condition, existed.\nId.\nHowever, in the case sub judice, the presence of over 10,000,000 visitors in the park during the tenure of Superintendent Merritt establishes an extremely high probability that he would have been notified if protruding nails were indeed causing injuries among the park\u2019s clientele. The lack of such reports during Superintendent Merritt\u2019s employment thus was properly considered by the Commission to support its finding that the park had in place a reasonable means of inspecting the boardwalk for nails.\nPlaintiff next objects to the Commission\u2019s statement in finding of fact number eleven that plaintiff was contributorily negligent. See Smith, 112 N.C. App. at 745, 436 S.E.2d at 882 (invitee has duty to use ordinary care to protect herself and discover obvious dangers). A finding of negligence on the part of plaintiff is not necessary to uphold the Commission\u2019s decision, however, because it properly determined defendant itself had not acted in a negligent manner. We therefore decline to address the Commission\u2019s finding regarding the contributory negligence of. plaintiff.\nFinally, plaintiff objects to the Commission\u2019s conclusions of law. We believe each of the following conclusions of law by the Commission support its ultimate decision that defendant was not liable in negligence to plaintiff: first, that defendant had in place a reasonable routine to inspect the boardwalk for unsafe conditions, and had made a reasonable inspection of the boardwalk on the day of plaintiff\u2019s accident; second, that defendant was not negligent in failing to warn plaintiff of the danger of protruding nails.\nThis Court has determined that visitors to state parks are invitees. See Smith, 112 N.C. App. at 744, 436 S.E.2d at 882. As such, the park herein was under a duty to \u201cexercise ordinary care in maintaining the premises in a reasonably safe condition, and to warn invitees of hidden dangers or unsafe conditions.\u201d Id. Unquestionably, raised nails may potentially cause pedestrians to trip, and defendant had knowledge nails occasionally protruded from the boardwalk. However, defendant responded to the danger in a reasonable manner by inspecting the boardwalk for hazards, including raised nails, on a regular basis, and by hammering down protruding nails as they were discovered. As discussed above, in light of the tremendous volume of visitors to the park, the superintendent\u2019s lack of knowledge of any accidents involving raised nails during his eleven year tenure is evidence that defendant indeed maintained the boardwalk in a reasonably safe condition.\nRegarding plaintiff\u2019s claim that defendant had a duty to warn of \u201chidden\u201d dangers, see Smith, 112 N.C. App. at 745, 436 S.E.2d at 882, we do not believe raised nails on a boardwalk by the ocean are the type of \u201chidden\u201d danger concerning which patrons must be warned. \u201cSlight depressions, unevenness and irregularities in outdoor walkways, sidewalks and streets are so common that their presence is to be anticipated by prudent persons.\u201d Evans v. Batten, 262 N.C. 601, 602, 138 S.E.2d 213, 214 (1964); see Stephen v. Swiatkowski, 635 N.E.2d 997, 1003 (Ill. App. 1994) (nail protruding from board in home was open and obvious). Likewise, the tendency of nails to work their way out of boardwalks and docks by the ocean is to be anticipated by pedestrians using those structures. While some individuals may trip on raised nails on beach boardwalks, the utility of a sign warning of the existence of such nails is highly questionable due to common knowledge of the same. Furthermore, although we have declined to address the Commission\u2019s conclusion that plaintiff was contributorily negligent in failing to see the nail, we note plaintiff admitted she was \u201cfamiliar with piers and fishing/ocean environments, having fished most of her life.\u201d\nIn sum, there is evidence in the record to support the Commission\u2019s findings of fact and conclusions of law to the effect that defendant was neither negligent in its maintenance of the boardwalk nor in its failure to warn of the possibility of protruding nails therein.\nAffirmed.\nJudges EAGLES and WALKER concur.",
        "type": "majority",
        "author": "JOHN, Judge."
      }
    ],
    "attorneys": [
      "McLeod, Hardison & Harrop, by Donald E. Harrop, Jr., for plaintiff-appellant.",
      "Attorney General Michael F. Easley, by Assistant Attorney General Don Wright, for defendant-appellee."
    ],
    "corrections": "",
    "head_matter": "FRANCES G. JERNIGAN, Plaintiff v. N.C. DIVISION OF PARKS AND RECREATION, Defendant\nNo. COA95-692\n(Filed 17 December 1996)\n1. State \u00a7 55 (NCI4th)\u2014 Industrial Commission \u2014 findings of fact irrelevant \u2014 surplusage\nThe Industrial Commission\u2019s finding of fact as to when a state park was notified of the plaintiff\u2019s accident was irrelevant and had no bearing on the plaintiff\u2019s case; therefore the finding was disregarded as surplusage.\nAm Jur 2d, Municipal, County, School, and State Tort Liability \u00a7\u00a7 675 et seq.\n2. State \u00a7 55 (NCI4th)\u2014 Commissioner is the arbiter \u2014 state park \u2014 protruding nail \u2014 conflicting testimony\nAs the arbiter of the credibility of witnesses and the weight given their testimony, the Industrial Commission was entitled to resolve the conflict in a witness\u2019s testimony. The witness, a park superintendent, testified to varying lengths of a nail which plaintiff tripped over while visiting the park,\nAm Jur 2d, Municipal, County, School, and State Tort Liability \u00a7\u00a7 675 et seq.\n3. State \u00a7 55 (NCI4th)\u2014 state park \u2014 protruding nail\u2014 absence of notice\nThe Industrial Commission\u2019s findings that park employees did not have notice the nail plaintiff tripped upon was protruding from the boardwalk was supported by the evidence.\nAm Jur 2d, Municipal, County, School, and State Tort Liability \u00a7\u00a7 675 et seq.\n4. State \u00a7 55 (NCI4th)\u2014 procedure for inspection \u2014 superintendent\u2019s testimony \u2014 state park\nThe Industrial Commission properly found that there was evidence of a firmly established opening routine and a reasonable procedure for inspecting the boardwalk where plaintiff\u2019s claim was that she tripped over a nail protruding from a boardwalk at a state park. The evidence in the record revealed employees walked down the boardwalk daily to open the bathhouse, and that in the course of this routine the attendant on duty would conduct a general visual inspection of the park. Further, the superintendent of the park testified that in his eleven years of employment at the park, which had accommodated over 10,000,000 visitors during that time, there had been no reports of individuals tripping over nails or being injured on a nail.\nAm Jur 2d, Municipal, County, School, and State Tort Liability \u00a7\u00a7 675 et seq.\n5. State \u00a7 36 (NCI4th)\u2014 defendant not negligent \u2014 contributory negligence finding unnecessary\nThe Court of Appeals declined to address the Commission\u2019s finding regarding the contributory negligence of plaintiff because a finding of negligence on the part of plaintiff was not necessary to uphold the Commission\u2019s decision where it was properly determined that defendant, the park itself, had not acted in a negligent manner.\nAm Jur 2d, Municipal, County, School, and State Tort Liability \u00a7 151.\n6. State \u00a7 35 (NCI4th)\u2014 Industrial Commission \u2014 findings of fact \u2014 State not negligent for failure to warn\nThere was evidence in the record to support the Industrial Commission\u2019s findings of fact and conclusions of law to the effect that defendant state park was neither negligent in its maintenance of a boardwalk nor in its failure to warn of the possibility of protruding nails therein where the plaintiff was injured after tripping over a protruding nail.\nAm Jur 2d, Municipal, County, School, and State Tort Liability \u00a7 145.\nAppeal by plaintiff from Decision and Order filed 20 March 1995 by the North Carolina Industrial Commission. Heard in the Court of Appeals 29 February 1996.\nMcLeod, Hardison & Harrop, by Donald E. Harrop, Jr., for plaintiff-appellant.\nAttorney General Michael F. Easley, by Assistant Attorney General Don Wright, for defendant-appellee."
  },
  "file_name": "0748-01",
  "first_page_order": 786,
  "last_page_order": 792
}
