{ "id": 11465277, "name": "KIMBERLY D. CROKER, Plaintiff v. YADKIN, INC., Defendant", "name_abbreviation": "Croker v. Yadkin, Inc.", "decision_date": "1998-07-07", "docket_number": "No. COA97-24", "first_page": "64", "last_page": "71", "citations": [ { "type": "official", "cite": "130 N.C. App. 64" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "359 S.E.2d 780", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1987, "pin_cites": [ { "page": "782" }, { "page": "782" } ], "opinion_index": 0 }, { "cite": "320 N.C. 621", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4726123 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "624" }, { "page": "624" } ], "opinion_index": 0, "case_paths": [ "/nc/320/0621-01" ] }, { "cite": "467 S.E.2d 58", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1996, "pin_cites": [ { "page": "63" }, { "page": "63" } ], "opinion_index": 0 }, { "cite": "342 N.C. 554", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 795989 ], "year": 1996, "pin_cites": [ { "page": "559" } ], "opinion_index": 0, "case_paths": [ "/nc/342/0554-01" ] }, { "cite": "830 F.2d 163", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1763500 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "167" } ], "opinion_index": 0, "case_paths": [ "/f2d/830/0163-01" ] }, { "cite": "87 S.E.2d 893", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1955, "pin_cites": [ { "page": "898" } ], "opinion_index": 0 }, { "cite": "242 N.C. 358", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8615106 ], "year": 1955, "pin_cites": [ { "page": "363" } ], "opinion_index": 0, "case_paths": [ "/nc/242/0358-01" ] }, { "cite": "303 S.E.2d 365", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "373" } ], "opinion_index": 0 }, { "cite": "62 N.C. 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App.", "case_ids": [ 8522388 ], "year": 1983, "pin_cites": [ { "page": "342" } ], "opinion_index": 0, "case_paths": [ "/nc-app/62/0329-01" ] }, { "cite": "365 S.E.2d 898", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "900" } ], "opinion_index": 0 }, { "cite": "321 N.C. 706", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2566622 ], "year": 1988, "pin_cites": [ { "page": "709" } ], "opinion_index": 0, "case_paths": [ "/nc/321/0706-01" ] }, { "cite": "280 S.E.2d 453", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "303 N.C. 181", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572170, 8572107, 8572143, 8572079, 8572210 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/303/0181-04", "/nc/303/0181-02", "/nc/303/0181-03", "/nc/303/0181-01", "/nc/303/0181-05" ] }, { "cite": "274 S.E.2d 853", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "858" } ], "opinion_index": 0 }, { "cite": "50 N.C. App. 611", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 2674448 ], "pin_cites": [ { "page": "618" } ], "opinion_index": 0, "case_paths": [ "/nc-app/50/0611-01" ] }, { "cite": "332 S.E.2d 67", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "69", "parenthetical": "parties' assignments of error raising constitutional issue and affidavit of trial judge acknowledging constitutionality of statute \"timely raised, presented, and argued\" in the trial court sufficient to indicate issue properly before that court" } ], "opinion_index": 0 }, { "cite": "314 N.C. 44", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4690757 ], "year": 1985, "pin_cites": [ { "page": "47-48", "parenthetical": "parties' assignments of error raising constitutional issue and affidavit of trial judge acknowledging constitutionality of statute \"timely raised, presented, and argued\" in the trial court sufficient to indicate issue properly before that court" } ], "opinion_index": 0, "case_paths": [ "/nc/314/0044-01" ] }, { "cite": "436 S.E.2d 122", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1993, "pin_cites": [ { "parenthetical": "even though issued raised in trial court, record did not indicate court considered the issue in granting summary judgment" } ], "opinion_index": 0 }, { "cite": "335 N.C. 133", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2527406 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc/335/0133-01" ] }, { "cite": "425 S.E.2d 4", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "7" } ], "opinion_index": 0 }, { "cite": "108 N.C. App. 641", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525235 ], "year": 1993, "pin_cites": [ { "page": "646" } ], "opinion_index": 0, "case_paths": [ "/nc-app/108/0641-01" ] }, { "cite": "443 S.E.2d 365", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1994, "pin_cites": [ { "page": "368", "parenthetical": "summary judgment appropriate where defendant \"was not bound to warn plaintiff of an obvious danger\"" }, { "page": "367" }, { "page": "368" } ], "opinion_index": 0 }, { "cite": "114 N.C. App. 787", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8528006 ], "weight": 3, "year": 1994, "pin_cites": [ { "page": "790", "parenthetical": "summary judgment appropriate where defendant \"was not bound to warn plaintiff of an obvious danger\"" }, { "page": "788" }, { "page": "790" } ], "opinion_index": 0, "case_paths": [ "/nc-app/114/0787-01" ] }, { "cite": "302 S.E.2d 868", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "871" } ], "opinion_index": 0 }, { "cite": "308 N.C. 419", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4708418 ], "year": 1983, "pin_cites": [ { "page": "425" } ], "opinion_index": 0, "case_paths": [ "/nc/308/0419-01" ] }, { "cite": "454 S.E.2d 648", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "339 N.C. 737", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2556426, 2559318, 2557847, 2557592, 2559291 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc/339/0737-03", "/nc/339/0737-05", "/nc/339/0737-04", "/nc/339/0737-01", "/nc/339/0737-02" ] }, { "cite": "449 S.E.2d 240", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "242" } ], "opinion_index": 0 }, { "cite": "116 N.C. App. 663", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525419 ], "year": 1994, "pin_cites": [ { "page": "665" } ], "opinion_index": 0, "case_paths": [ "/nc-app/116/0663-01" ] } ], "analysis": { "cardinality": 895, "char_count": 16049, "ocr_confidence": 0.738, "pagerank": { "raw": 1.0028511661480728e-07, "percentile": 0.5394065445514391 }, "sha256": "f7d4d4a07512ebe7e85341798d1e4834d68482bb49f779ce03968490a6b34449", "simhash": "1:2aa1d73c77ffd4f8", "word_count": 2604 }, "last_updated": "2023-07-14T19:24:27.441929+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges LEWIS and SMITH concur." ], "parties": [ "KIMBERLY D. CROKER, Plaintiff v. YADKIN, INC., Defendant" ], "opinions": [ { "text": "JOHN, Judge.\nIn this negligence action, plaintiff Kimberly D. Croker appeals the trial court\u2019s grant of summary judgment in favor of defendant Yadkin, Inc. We affirm the ruling of the trial court.\nPertinent factual and procedural information includes the following: Defendant is the successor corporation to Carolina Aluminum Company. In 1958, the latter received a fifty-year license (the license) from the Federal Energy Regulatory Commission (FERC) to operate a hydroelectric dam as part of the Narrows Development on the Yadkin River. The dam created an impoundment commonly known as Badin Lake (the Lake).\nWhile plaintiff was at the Lake on 2 July 1992, Eddie Trogdon (Trogdon) offered to take her parasailing, an activity which involves being pulled behind a boat in a modified parachute. Accepting Trogdon\u2019s invitation, plaintiff and some friends traveled by boat to the Dixie Shores access area, a private location designated for the use of members and guests of the Dixie Shores Homeowners Association.\nTrogdon demonstrated parasailing to the group. He explained that the modified parachute is laid out on the ground, with the participant strapped into a harness. The parachute is connected to a boat by a line which becomes taut as the boat accelerates. At the same time, the parasailer runs behind the boat on land, the parasail fills with air, and the parasailer is lifted into the air.\nTrogdon strapped plaintiff into the harness, instructed her on how to release from the parasail, and warned her not to touch the risers. Plaintiff remembers nothing following her run prior to take-off. According to Trogdon, plaintiff stumbled when preparing to take-off. When plaintiff was tree-level, the parasail turned right towards a pier. Trogdon and his wife Pat, who was operating the boat, attributed plaintiff\u2019s change in direction to her having pulled on the risers on the right side of the parasail.\nAs the parasail listed to the right, plaintiff hit the top deck of a two-story pier. She impacted the side railing of the pier with her leg, slid across the top of the pier, hit the pier\u2019s front railing and fell into the water. Plaintiff consequently suffered serious injuries, including multiple bone fractures and serious facial injuries, and was transported by helicopter to Chapel Hill for medical treatment.\nThe pier was part of a waterfront residence in the Dixie Shores subdivision owned by Edward L. Clayton, Jr. (Clayton). Pursuant to authority granted by the license, defendant had sanctioned and licensed the renovation and expansion by Clayton of a previously existing pier and continued to license the pier on a yearly basis.\nPlaintiff instituted the instant action on 30 June 1995, alleging defendant \u201cwas negligent and ha[d] breached the duties imposed upon it by its FERC . . . license.\u201d According to plaintiff\u2019s complaint, defendant \u201cknew, or through the exercise of reasonable care should have known\u201d the area \u201cwas frequently and routinely used by parasail-ers for take off,\u201d and was negligent in four main ways: (1) by approving the design of and allowing a two-story dock to be erected and remain erected adjacent to such area, (2) by failing to warn recreational users and parasailers of the hazardous nature of the area, (3) by failing to prohibit parasailing in the area adjacent to the pier and (4) by failing \u201cto adequately inspect its lands and licensed waters for the purposes of discovering and correcting hazards to the recreational users of its impoundment.\u201d\nDefendant\u2019s motion to dismiss under N.C.R. Civ. P. 12(b)(6) was denied in an order entered 1 November 1995. However, defendant\u2019s summary judgment motion was granted 11 October 1996, whereupon plaintiff filed timely notice of appeal. Defendant cross appealed, assigning error to the denial of its motion to dismiss.\nSummary judgment is properly granted when the pleadings, depositions, answers to interrogatories, admissions and affidavits show no genuine issue of material fact exists and the movant is entitled to judgment as a matter of law. N.C.R. Civ. P. 56; Davis v. Town of Southern Pines, 116 N.C. App. 663, 665, 449 S.E.2d 240, 242 (1994), disc. review denied, 339 N.C. 737, 454 S.E.2d 648 (1995). Plaintiff correctly interjects that negligence actions are rarely susceptible to summary judgment. See Lamb v. Wedgewood South Corp., 308 N.C. 419, 425, 302 S.E.2d 868, 871 (1983). However, if it is shown the defendant had no duty of care to the plaintiff, summary judgment is appropriate. See Newsom v. Byrnes, 114 N.C. App. 787, 790, 443 S.E.2d 365, 368 (1994) (summary judgment appropriate where defendant \u201cwas not bound to warn plaintiff of an obvious danger\u201d).\nBefore this Court, plaintiff focuses almost exclusively upon Chapter 390 of the 1955 Session Laws entitled \u201cAn Act to Regulate the Operation of Motorboats and Other Craft on the Waters of the Yadkin and Pee Dee Rivers in Montgomery and Stanley Counties\u201d (Chapter 390). The section provides\nno claim, right or demand of any kind whatsoever shall be asserted against the owner or owners of said hydroelectric power development or of said lakes by reason of said use or enjoyment, irrespective of the length of time.\nPlaintiff argues the foregoing section is violative of the North Carolina Constitution in that it: (1) attempts to confer exclusive and separate emoluments and privileges, (2) is a prohibited special and local act and (3) is unconstitutionally vague and ambiguous. Plaintiff further maintains defendant waived its rights under Chapter 390 when it accepted the license and amendments thereto. However, because \u201cit does not affirmatively appear in the record that the constitutional issue was both raised and passed upon in the trial court,\u201d Nelson v. Battle Forest Friends Meeting, 108 N.C. App. 641, 646, 425 S.E.2d 4, 7, rev\u2019d on other grounds, 335 N.C. 133, 436 S.E.2d 122 (1993), we will not consider for the first time on appeal plaintiff\u2019s contention that Chapter 390 is unconstitutional.\nExamination of the instant record reveals mention of Chapter 390 initially as an affirmative defense in defendant\u2019s \u201cAmended Answer and Affirmative Defenses,\u201d and thereafter as a basis for defendant\u2019s motion to dismiss. However, no documents of record purport to assert plaintiff\u2019s contention Chapter 390 is unconstitutional, nor does plaintiff raise the question as an assignment of error.\nWe do note that \u201cPlaintiff\u2019s Exhibit A,\u201d attached to plaintiff\u2019s \u201cMotion to Amend Record on Appeal\u201d allowed by this Court 14 March 1997, references Article I, section 32 and Article XIV, Section 3 of the North Carolina Constitution. The exhibit was described in that motion as \u201cpage 13 from Defendant\u2019s Memorandum In Support of Motion To Dismiss,\u201d and plaintiff sought inclusion of the exhibit as being \u201cnecessary to the Court\u2019s understanding of [plaintiff\u2019s] argument . . . that the credibility of [defendant] is suspect.\u201d We do not believe this solitary sheet belatedly supplementing the record for an unrelated purpose \u201caffirmatively\u201d demonstrates \u201cthat the constitutional issue was both raised and passed upon in the trial court.\u201d See id. (even though issued raised in trial court, record did not indicate court considered the issue in granting summary judgment). Cf. Tetterton v. Long Manufacturing Co., 314 N.C. 44, 47-48, 332 S.E.2d 67, 69 (1985) (parties\u2019 assignments of error raising constitutional issue and affidavit of trial judge acknowledging constitutionality of statute \u201ctimely raised, presented, and argued\u201d in the trial court sufficient to indicate issue properly before that court).\nNonetheless, as we hold the evidence before the trial court failed to show the presence of a genuine issue of material fact as to an essential element of actionable negligence under our common law, it is unnecessary in any event to address either the constitutionality or the application to the circumstances sub judice of Chapter 390. See Midrex Corp. v. Lynch, Sec. of Revenue, 50 N.C. App. 611, 618, 274 S.E.2d 853, 858 (by virtue of court\u2019s resolution of case, it \u201cwould not reach any constitutional question if properly presented\u201d), appeal dismissed and disc. review denied, 303 N.C. 181, 280 S.E.2d 453 (1981).\nActionable negligence is established by showing: (1) a failure to exercise due care in the performance of a legal duty owed to the plaintiff under the circumstances and (2) a negligent breach of such duty proximately causing the plaintiff\u2019s injury. Bolkhir v. N. C. State Univ., 321 N.C. 706, 709, 365 S.E.2d 898, 900 (1988). Plaintiff herein asserts the presence before the trial court of a genuine issue of material fact as to the first element based upon defendant\u2019s alleged breach of duties imposed upon it by the license.\nThe license grants defendant federal permission to operate the dam on the Yadkin River, and obligates defendant to allow the public free access for recreational purposes to project waters and adjacent lands. By terms of the license, defendant\nmay reserve from public access such portions of the project waters, adjacent lands, and project facilities as may be necessary for the protection of life, health, and property.\nRelying on the license, amendments thereto, correspondence between defendant and the FERC Office, and publications of defendant, plaintiff insists defendant \u201cwas . . . under an affirmative duty to safely operate recreational facilities,\u201d and that it \u201cowed this duty to Plaintiff, a recreational user of Defendant\u2019s lake.\u201d Defendant, plaintiff explains, \u201ccould have either regulated or, if appropriate, banned para-sailing on its lake\u201d pursuant to the license, or it \u201ccould have required alteration of [sic], if necessary, removal of the pier,\u201d pursuant to the license issued to Clayton.\nIt is well settled that an action in tort ordinarily\nmust be grounded on a violation of a duty imposed by operation of law, and the right invaded must be one that the law provides without regard to the contractual relationship of the parties, rather than one based on an agreement between the parties.\nAsheville Contracting Co. v. City of Wilson, 62 N.C. App. 329, 342, 303 S.E.2d 365, 373 (1983). An injured party who elects to sue in tort \u201cmust accept the standard of care prescribed by the common law as the test of determining actionable negligence.\u201d Pinnix v. Toomey, 242 N.C. 358, 363, 87 S.E.2d 893, 898 (1955). Thus, any contract provision prescribing a different standard of care from that imposed by the common law is not relevant to actionable negligence. Id.\nApplying the foregoing authorities to the case sub judice, it is evident the license does not create a duty of care upon which plaintiff might rely in a negligence action. The latter must be based upon an alleged breach of a duty of care prescribed by the common law.\nNotwithstanding, plaintiff cites Georgia Power Co. v. Baker, 830 F.2d 163 (11th Cir. 1987) in support of her position that the license indeed established a duty of care by defendant to plaintiff. However, Georgia Power is distinguishable in that it did not address the duty of care involved in a negligence case. Plaintiff correctly notes that Georgia Power upheld the provision of a FERC license granting authority to reserve from public access those portions of the project necessary for the protection of life, health and property in the specific context of recreational safety. However, the case was not a negligence case and was silent on the issue of duty of care. Rather, it stands for the proposition that a FERC license does not interfere with riparian water rights law in the state of Georgia, id. at 167, an issue not relevant to the case sub judice.\nFinally, regarding plaintiff\u2019s assertion defendant \u201ccould have . . . banned parasailing\u201d on the Lake, we note that in this jurisdiction N.C.G.S. \u00a7 75A-15 (1994) empowers the Wildlife Resources Commission (the Commission) to make rules for local waterways concerning (1) the type of activities that may be conducted on the water and (2) the promotion of water safety generally. G.S. \u00a7 75A-15(a)(l)(2). Nothing in the record reveals the Commission had issued any regulation regarding parasailing at the time of plaintiffs injury.\nTurning then to the common law, it is well established that the nature and extent of the duty owed by an owner or occupier of land depends upon the status of the injured person as invitee, licensee or trespasser. Newton v. New Hanover County Bd. of Education, 342 N.C. 554, 559, 467 S.E.2d 58, 63 (1996). The obligation owed to an invitee is higher than that owed to individuals in the remaining categories. Id. at 561, 467 S.E.2d at 63. Defendant\u2019s assertions to the contrary notwithstanding, we assume arguendo that plaintiff at the time of her injury was an invitee of defendant.\nThe owner or occupier of premises has a duty to an invitee to exercise ordinary care to keep the property in a reasonably safe condition and to warn of hidden or concealed dangers of which the owner has knowledge, either express or implied. Newsom, 114 N.C. App. at 788, 443 S.E.2d at 367. However, the owner is not an absolute insurer of the safety of an invitee, Newsom, 114 N.C. App. at 790, 443 S.E.2d at 368, and has no duty to warn an invitee of \u201ca hazard obvious to any ordinarily intelligent person using [her] eyes in an ordinary manner.\u201d Branks v. Kern, 320 N.C. 621, 624, 359 S.E.2d 780, 782 (1987).\nIn the case sub judice, plaintiff described the two-story pier as a \u201clarge structure\u201d and admitted she could see the pier from the launch area before attempting to parasail. Trogdon likewise characterized the pier as \u201ca pretty big structure\u201d and agreed it was visible from the launch area. There having been no contradictory evidence, therefore, it is undisputed the pier was an obvious structure, neither hidden nor concealed. Accordingly, defendant had no common law duty to warn plaintiff of the pier as it was a hazard obvious to any ordinarily intelligent person using her eyes in an ordinary way. See Branks, 320 N.C. at 624, 359 S.E.2d at 782. Lacking evidence of a genuine issue of material fact as to the essential element of a duty to warn, see id., plaintiffs negligence claim was properly dismissed by the trial court on defendant\u2019s motion for summary judgment.\nWe note in closing that plaintiff\u2019s complaint, in addition to her negligence claim, also alleged defendant \u201cbreached its licensed/ contractual obligation to operate the impoundment in a safe manner\u201d thereby injuring plaintiff who was an \u201cinvitee of the defendant\u201d and \u201ca direct intended beneficiary of the [FERC] license.\u201d However, plaintiff in her appellate brief fails to address the grant of summary judgment on the breach of contract claim and offers neither argument nor authority in support of reversal thereof. We therefore deem this contention abandoned. See N.C.R. App. P. 28(b)(5).\nBased upon the foregoing, the order of the trial court granting summary judgment to defendant is affirmed.\nAffirmed.\nJudges LEWIS and SMITH concur.", "type": "majority", "author": "JOHN, Judge." } ], "attorneys": [ "Donaldson & Black, P.A., by Jeffrey K. Peraldo, for plaintiff - appellant.", "LeBoeuf, Lamb, Greene & MacRae, L.L.P., by Lynn A. Ellenberger and Smith, Helms, Mulliss & Moore, L.L.P., by Alexander L. Maultsby, for defendant-appellee." ], "corrections": "", "head_matter": "KIMBERLY D. CROKER, Plaintiff v. YADKIN, INC., Defendant\nNo. COA97-24\n(Filed 7 July 1998)\nPremises Liability\u2014 pier as parasailing hazard \u2014 sufficiency of evidence\nThe trial court did not err by granting summary judgment for defendant in an action arising from injuries suffered by paintiff while parasailing when she crashed into a pier on the lake managed by defendant. Defendant\u2019s license from the Federal Energy Regulatory Commission does not create a duty of care upon which plaintiff might rely in a negligence action and defendant had no common law duty to warn plaintiff of the pier as it was a hazard obvious to any ordinarily intelligent person using her eyes in an ordinary way.\nAppeal by plaintiff from order filed 11 October 1996 by Judge Howard R. Greeson, Jr. in Guilford County Superior Court. Heard in the Court of Appeals 10 September 1997.\nDonaldson & Black, P.A., by Jeffrey K. Peraldo, for plaintiff - appellant.\nLeBoeuf, Lamb, Greene & MacRae, L.L.P., by Lynn A. Ellenberger and Smith, Helms, Mulliss & Moore, L.L.P., by Alexander L. Maultsby, for defendant-appellee." }, "file_name": "0064-01", "first_page_order": 96, "last_page_order": 103 }