{ "id": 8413379, "name": "TINYA CHERNEY, Plaintiff v. NORTH CAROLINA ZOOLOGICAL PARK, Defendant", "name_abbreviation": "Cherney v. North Carolina Zoological Park", "decision_date": "2004-11-02", "docket_number": "No. COA03-1615", "first_page": "684", "last_page": "693", "citations": [ { "type": "official", "cite": "166 N.C. App. 684" } ], "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": "349 N.C. 615", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571622 ], "opinion_index": -1, "case_paths": [ "/nc/349/0615-01" ] }, { "cite": "365 S.E.2d 898", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "900-01" } ], "opinion_index": 0 }, { "cite": "321 N.C. 706", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2566622 ], "year": 1988, "pin_cites": [ { "page": "710" } ], "opinion_index": 0, "case_paths": [ "/nc/321/0706-01" ] }, { "cite": "496 S.E.2d 790", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "793" } ], "opinion_index": 0 }, { "cite": "128 N.C. App. 402", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11654971 ], "year": 1998, "pin_cites": [ { "page": "405" } ], "opinion_index": 0, "case_paths": [ "/nc-app/128/0402-01" ] }, { "cite": "533 S.E.2d 467", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "350 N.C. 108", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 132282, 131930, 132234, 132199 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/nc/350/0108-02", "/nc/350/0108-04", "/nc/350/0108-03", "/nc/350/0108-01" ] }, { "cite": "507 S.E.2d 882", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1998, "pin_cites": [ { "page": "892" }, { "page": "892" } ], "opinion_index": 0 }, { "cite": "116 L. Ed. 2d 772", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1992, "opinion_index": 0 }, { "cite": "502 U.S. 1029", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6557540, 6557573, 6557453, 6557422, 6557615, 6557438, 6557589, 6557495, 6557470 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/us/502/1029-06", "/us/502/1029-07", "/us/502/1029-03", "/us/502/1029-01", "/us/502/1029-09", "/us/502/1029-02", "/us/502/1029-08", "/us/502/1029-05", "/us/502/1029-04" ] }, { "cite": "404 S.E.2d 871", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "328 N.C. 732", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2538019, 2539562, 2545331, 2540404, 2539003 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc/328/0732-03", "/nc/328/0732-02", "/nc/328/0732-01", "/nc/328/0732-04", "/nc/328/0732-05" ] }, { "cite": "399 S.E.2d 587", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "589" } ], "opinion_index": 0 }, { "cite": "101 N.C. App. 375", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527745 ], "year": 1991, "pin_cites": [ { "page": "376-77" } ], "opinion_index": 0, "case_paths": [ "/nc-app/101/0375-01" ] }, { "cite": "473 S.E.2d 612", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "343 N.C. 750", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 798888, 798889, 798802, 798931, 798872 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/nc/343/0750-04", "/nc/343/0750-01", "/nc/343/0750-02", "/nc/343/0750-03", "/nc/343/0750-05" ] }, { "cite": "465 S.E.2d 2", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "6" } ], "opinion_index": 0 }, { "cite": "121 N.C. App. 105", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11915701 ], "year": 1995, "pin_cites": [ { "page": "111" } ], "opinion_index": 0, "case_paths": [ "/nc-app/121/0105-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 143-297", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2003, "pin_cites": [ { "page": "(2)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 143-293", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2003, "opinion_index": 0 }, { "cite": "299 S.E.2d 618", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "626" } ], "opinion_index": 0 }, { "cite": "307 N.C. 522", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564079 ], "year": 1983, "pin_cites": [ { "page": "536" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0522-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 143-291", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "opinion_index": 0 }, { "cite": "349 N.C. 615", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571622 ], "weight": 2, "pin_cites": [ { "page": "632" }, { "page": "632" } ], "opinion_index": 0, "case_paths": [ "/nc/349/0615-01" ] }, { "cite": "576 S.E.2d 345", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "opinion_index": 1 }, { "cite": "156 N.C. App. 92", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9189810 ], "year": 2003, "opinion_index": 1, "case_paths": [ "/nc-app/156/0092-01" ] }, { "cite": "261 S.E.2d 123", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 1 }, { "cite": "298 N.C. 567", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573187, 8573126, 8573206, 8573111, 8573148 ], "year": 1979, "opinion_index": 1, "case_paths": [ "/nc/298/0567-04", "/nc/298/0567-02", "/nc/298/0567-05", "/nc/298/0567-01", "/nc/298/0567-03" ] }, { "cite": "255 S.E.2d 203", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1979, "pin_cites": [ { "page": "205" }, { "page": "206" }, { "page": "206" } ], "opinion_index": 1 }, { "cite": "41 N.C. App. 548", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550505 ], "weight": 3, "year": 1979, "pin_cites": [ { "page": "550" }, { "page": "552" }, { "page": "551" } ], "opinion_index": 1, "case_paths": [ "/nc-app/41/0548-01" ] }, { "cite": "591 S.E.2d 518", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "opinion_index": 1 }, { "cite": "358 N.C. 130", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2987802 ], "year": 2004, "opinion_index": 1, "case_paths": [ "/nc/358/0130-01" ] }, { "cite": "585 S.E.2d 757", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "opinion_index": 1 }, { "cite": "357 N.C. 459", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491911, 491401, 491468, 491532, 491724, 491601, 491539, 491417, 491902 ], "year": 2003, "opinion_index": 1, "case_paths": [ "/nc/357/0459-02", "/nc/357/0459-07", "/nc/357/0459-03", "/nc/357/0459-06", "/nc/357/0459-08", "/nc/357/0459-01", "/nc/357/0459-04", "/nc/357/0459-05", "/nc/357/0459-09" ] }, { "cite": "576 S.E.2d 124", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "127" } ], "opinion_index": 1 }, { "cite": "156 N.C. App. 108", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9189829 ], "year": 2003, "pin_cites": [ { "page": "112-13" } ], "opinion_index": 1, "case_paths": [ "/nc-app/156/0108-01" ] }, { "cite": "473 S.E.2d 612", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1996, "opinion_index": 1 }, { "cite": "343 N.C. 750", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 798888, 798889, 798802, 798931, 798872 ], "year": 1996, "opinion_index": 1, "case_paths": [ "/nc/343/0750-04", "/nc/343/0750-01", "/nc/343/0750-02", "/nc/343/0750-03", "/nc/343/0750-05" ] }, { "cite": "465 S.E.2d 2", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1995, "pin_cites": [ { "page": "6" }, { "page": "6" }, { "page": "6" } ], "opinion_index": 1 }, { "cite": "121 N.C. App. 105", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11915701 ], "weight": 3, "year": 1995, "pin_cites": [ { "page": "111" }, { "page": "111" }, { "page": "111" } ], "opinion_index": 1, "case_paths": [ "/nc-app/121/0105-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 143-293", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2003, "opinion_index": 1 }, { "cite": "299 S.E.2d 618", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "626" } ], "opinion_index": 1 }, { "cite": "307 N.C. 522", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564079 ], "year": 1983, "pin_cites": [ { "page": "536" } ], "opinion_index": 1, "case_paths": [ "/nc/307/0522-01" ] } ], "analysis": { "cardinality": 823, "char_count": 20877, "ocr_confidence": 0.751, "pagerank": { "raw": 4.807967483374169e-07, "percentile": 0.9314851946966792 }, "sha256": "6ae51e2782da530d754163d1f44b2d849a2c2e591c2040e99c69cae6ce564860", "simhash": "1:9da4e2a8d9262956", "word_count": 3350 }, "last_updated": "2023-07-14T18:02:59.875915+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge HUNTER concurs.", "Judge TIMMONS-GOODSON dissents." ], "parties": [ "TINYA CHERNEY, Plaintiff v. NORTH CAROLINA ZOOLOGICAL PARK, Defendant" ], "opinions": [ { "text": "McCullough, Judge.\nTinya Cherney (\u201cplaintiff\u201d) appeals the opinion and award entered 28 July 2003 by the North Carolina Industrial Commission.\nThe facts and procedural history pertinent to the instant appeal are as follows: On 18 July 1998, plaintiff visited the North Carolina Zoological Park (\u201cthe Zoo\u201d) in Asheboro as a business invitee. While plaintiff was inside the Zoo\u2019s African Pavilion, a thirty-four-foot-tall ficus benjamina tree (\u201cficus tree\u201d) broke from its support cables and fell onto a nearby thirty-eight-foot-tall Traveler\u2019s tree, a portion of which broke off and struck plaintiff. Plaintiff sustained multiple injuries, including a fractured right femur, fractured vertebrae, and fractured ribs. She subsequently underwent surgery and incurred medical expenses exceeding $80,000.00.\nOn 7 September 1999, plaintiff filed a claim for damages against the Zoo pursuant to the Tort Claims Act, N.C. Gen. Stat. \u00a7 143-291, et seq. In the affidavit in support of her claim (\u201cthe affidavit\u201d), plaintiff alleged her injuries and damages resulted from the negligence of Zoo employees Ron Ferguson (\u201cFerguson\u201d) and Virginia Wall (\u201cWall\u201d). Ferguson served as Chief Gardener for the Zoo and Wall was the Curator of Horticulture for the Zoo. Plaintiff\u2019s affidavit contained the following allegations:\nThat the injury or property damage occurred in the following manner: Mrs. Cherney was in the enclosed African Pavilion near the center when a large ficus tree fell hitting a palm tree. Both trees then fell on her pinning her to the floor of the walkway in the African Pavilion. The impact caused vertigo, broke her right femur, cracked three ribs, caused compression fractures to three vertebra[e] and wrenched her knee. The injury occurred because the ficus tree which was indoors had been permitted to grow too large for its roots or alternatively had not been properly maintained to prevent it from becoming unsafe. The ficus tree was under the exclusive control of the Zoo personnel and not subject to wind or any natural force.\nOn 21 December 1999, defendant filed an answer denying the allegations of the affidavit. Defendant asserted that plaintiff failed to properly \u201callege a negligent act or omission on the part of the alleged employees of defendant\u201d and failed to properly \u201cstate a claim over which there is jurisdiction over the person and subject matter and . . . upon which relief may be granted.\u201d\nOn 13 August 2001, Deputy Commissioner Richard Ford (\u201cDeputy Commissioner Ford\u201d) heard arguments and received evidence from both parties. In an order filed 30 October 2001, Deputy Commission\u00e9r Ford ordered that defendant pay plaintiff $500,000.00 in compensatory damages.\nDefendant appealed Deputy Commissioner Ford\u2019s opinion and award, and on 29 April 2002, the matter came before the Full Commission for review. In an opinion and award filed 28 July 2003, a majority of the Full Commission reversed Deputy Commissioner Ford\u2019s prior opinion and award. The majority made the following pertinent findings of fact:\n3. There was no evidence that the first of the two named employees, Ron Ferguson had any involvement with the tree that fell on plaintiff.\n18. The greater weight of the evidence indicates that Ms. Wall neither knew or should have known that the ficus tree was likely to fall. There is no showing that Ms. Wall violated any applicable standard of care in her management of the horticulture department and supervision of the horticulture staff.\nBased upon these findings of fact, the majority made the following pertinent conclusions of law:\n2. Pursuant to N.C. Gen. Stat. \u00a7 143-291, plaintiff must show that the injuries sustained were the proximate result of a negligent act of a named state employee acting within the course and scope of his employment.\n4. The greater weight of the evidence shows that Ms. Wall\u2019s practices and management of her staff in the care of the ficus benjamina were reasonable and met or exceeded the standards for monitoring, record keeping, pruning, watering, fertilizing, cabling, syringing and soil mixture in her field. Plaintiff has failed to prove that either of the named employees of defendant, Ron Ferguson and Virginia Wall breached any applicable standard of care. Therefore, plaintiff has failed to prove negligence and is not entitled to recovery.\nCommissioner Bemadine S. Ballance (\u201cCommissioner Ballance\u201d) dissented from the Full Commission\u2019s decision and order. Plaintiff appeals.\nThe issues on appeal are: (I) whether the Full Commission applied the correct legal standards in its decision; and (II) whether the Full Commission\u2019s findings of fact support its conclusions of law.\nUnder the Tort Claims Act, \u201cjurisdiction is vested in the Industrial Commission to hear claims against the State of North Carolina for personal injuries sustained by any person as a result of the negligence of a State employee while acting within the scope of his employment.\u201d Guthrie v. State Ports Authority, 307 N.C. 522, 536, 299 S.E.2d 618, 626 (1983). On appeal from a decision by the Full Commission, this Court reviews the decision for errors of law \u201conly under the same terms and conditions as govern appeals in ordinary civil actions, and the findings of fact of the Commission shall be conclusive if there is any competent evidence to support them.\u201d N.C. Gen. Stat. \u00a7 143-293 (2003).\nN.C. Gen. Stat. \u00a7 143-297(2) (2003) requires that a plaintiff filing suit against a state agency provide by affidavit \u201c[t]he name of the department, institution or agency of the State against which the claim is asserted, and the name of the State employee upon whose alleged negligence the claim is basedf.]\u201d This Court has previously noted that \u201c[t]he purpose of requiring a claimant to name the negligent employee of the State agency is to enable the agency to investigate the employee involved and not all employees.\u201d Davis v. N.C. Dept. of Human Resources, 121 N.C. App. 105, 111, 465 S.E.2d 2, 6 (1995), disc. review denied, 343 N.C. 750, 473 S.E.2d 612 (1996).\nHere, plaintiff alleged that Ferguson and Wall were negligent.both individually and in their supervision of staff maintaining the ficus tree which fell on plaintiff.\nIn the case sub judice, a review of the record shows that the Commission examined Ms. Wall\u2019s supervision of her department and all its personnel in the performance of their duties. During her deposition, Ms. Wall identified the staff members who performed the various tasks associated with this ficus tree. The plaintiff never moved to amend her complaint to identify any other employee as negligent even though the failure to do so may be fatal to her case. Laughinghouse v. State ex rel. Ports Railway Comm., 101 N.C. App. 375, 376-77, 399 S.E.2d 587, 589, disc. review denied, 328 N.C. 732, 404 S.E.2d 871 (1991), cert. denied, 502 U.S. 1029, 116 L. Ed. 2d 772 (1992).\nHere plaintiff had to establish that the State- as a landowner breached its duty to exercise reasonable care in the maintenance of its premises, the Zoo. Nelson v. Freeland, 349 N.C. 615, 632, 507 S.E.2d 882, 892 (1998), reh\u2019g denied, 350 N.C. 108, 533 S.E.2d 467 (1999).\nThe duty of care depended upon the procedures for monitoring the ficus tree in question. There is no evidence that any of the staff members deviated from the guidelines Ms. Wall set to accomplish these goals.\nThe Commission made the following finding of fact:\n18. The greater weight of the evidence indicates that Ms. Wall neither knew or should have known that the ficus tree was likely to fall. There is no showing that Ms. Wall violated any applicable standard of care in her management of the horticulture department and supervision of the horticulture staff.\n(Emphasis added.)\nIt then made the following conclusion of law:\n4. The greater weight of the evidence shows that Ms. Wall\u2019s practices and management of her staff in the care of the ficus benjamina were reasonable and met or exceeded the standards for monitoring, record keeping, pruning, watering, fertilizing, cabling, syringing and soil mixture in her field. Plaintiff has failed to prove that either of the named employees of defendant, Ron Ferguson and Virginia Wall breached any applicable standard of care. Therefore, plaintiff has failed to prove negligence and is not entitled to recovery. Bolkhir, 321 N.C. at 709, 365 S.E.2d at 900, N.C. Gen. Stat. \u00a7 143-291.\n(Emphasis added.) In each, the actions of the staff are necessarily encompassed in the applicable finding and conclusion. The Commission concluded that Ms. Wall\u2019s actions were not negligent and that plaintiff failed to prove that her procedures, policies or staff management breached any standard of care. There is no evidence that any of her staff failed to follow any of her procedures. Thus it is clear that the Commission considered the actions of the unnamed staff in concluding that Ms. Wall was not negligent and properly applied the standard of review required by Davis.\nThe Nelson case properly sets forth the duty of care owed to members of the public by landowners where our Supreme Court stated:\nIn so holding, we note that we do not hold that owners and occupiers of land are now insurers of their premises. Moreover, we do not intend for owners and occupiers of land to undergo unwarranted burdens in maintaining their premises. Rather, we impose upon them only the duty to exercise reasonable care in the maintenance of their premises for the protection of lawful visitors.\nNelson, 349 N.C. at 632, 507 S.E.2d at 892. The Bolkhir case cited by the Commission, although it predates Nelson, is consistent with the standard set forth therein.\nWe thus hold that the Commission utilized the proper legal standards in its review of the Deputy Commissioner\u2019s award.\nWe must next consider whether the findings of fact are supported by competent evidence and whether the Commission\u2019s findings of fact justify its conclusions of law. Simmons v. N.C. Dept. of Transportation, 128 N.C. App. 402, 405, 496 S.E.2d 790, 793 (1998).\nCompetent evidence in the record shows that the ficus tree had been monitored under the existing protocol for over 10 years without incident, that the tree appeared healthy, that the number of cables supporting the tree was double the recommended minimum, and that the care provided exceeded industry standards for monitoring, record keeping, pruning, watering, cabling and the like.\nGiven the evidence as briefly summarized above, these facts do support the Commission\u2019s conclusion of law that Ms. Wall was not negligent as stated in Conclusion of Law No. 4, although there was evidence to the contrary.\nAs Bolkhir v. N.C. State Univ., 321 N.C. 706, 710, 365 S.E.2d 898, 900-01 (1988), cited by the Commission states:\nWith regard to the second element, this Court has defined proximate cause as\n\u201ca cause which in natural and continuous sequence, unbroken by any new and independent cause, produced the plaintiff\u2019s injuries, and without which the injuries would not have occurred, and one from which a person of ordinary prudence could have reasonably foreseen that such a result, or consequences of a generally injurious nature, was probable under all the facts as they existed.\u201d\nHairston v. Alexander Tank & Equipment Co., 310 N.C. at 233, 311 S.E.2d at 565 (citations omitted). Foreseeability is thus a requisite of proximate cause. Id. To establish foreseeability, the plaintiff must prove that defendant, in the exercise of reasonable care, might have foreseen that its actions would cause some injury. Id. at 234, 311 S.E.2d at 565. The defendant must exercise \u201creasonable prevision\u201d in order to avoid liability. Id. The law does not require a defendant to anticipate events which are merely possible but only those which are reasonably foreseeable. Id.\nHaving concluded that plaintiff failed to prove that Ms. Wall\u2019s procedures or staff management was negligent in any manner and it was unforeseeable that this ficus tree would fall, the Commission denied recovery. Based on the evidence supporting this determination, we cannot substitute a different judgment. Therefore, the decision of the Commission is affirmed.\nAffirmed.\nJudge HUNTER concurs.\nJudge TIMMONS-GOODSON dissents.", "type": "majority", "author": "McCullough, Judge." }, { "text": "TIMMONS-GOODSON, Judge,\ndissenting.\nBecause I conclude that the Industrial Commission erred in its opinion and award, I respectfully dissent.\n\u201cUnder the Tort Claims Act, jurisdiction is vested in the Industrial Commission to hear claims against the State of North Carolina for personal injuries sustained by any person as a result of the negligence of a State employee while acting within the scope of his employment.\u201d Guthrie v. State Ports Authority, 307 N.C. 522, 536, 299 S.E.2d 618, 626 (1983). On appeal from a decision by the Full Commission, this Court reviews the decision for errors of law \u201conly under the same terms and conditions as govern appeals in ordinary civil actions, and the findings of fact of the Commission shall be conclusive if there is any competent evidence to support them.\u201d N.C. Gen. Stat. \u00a7 143-293 (2003). Nevertheless, \u201c[i]f the [F]ull Commission applied an incorrect standard of review to the deputy commissioner\u2019s findings, this Court could reject the [F]ull Commission\u2019s findings and conclusions as errors of law.\u201d Hummel v. University of N.C., 156 N.C. App. 108, 112-13, 576 S.E.2d 124, 127, disc. review granted, 357 N.C. 459, 585 S.E.2d 757 (2003), disc. review improvidently granted, 358 N.C. 130, 591 S.E.2d 518 (2004).\nThis Court has previously noted that \u201c[t]he purpose of requiring a claimant to name the negligent employee of the State agency is to enable the agency to investigate the employee involved and not all employees.\u201d Davis v. North Carolina Dept. of Human Resources, 121 N.C. App. 105, 111, 465 S.E.2d 2, 6 (1995), disc. review denied, 343 N.C. 750, 473 S.E.2d 612 (1996). However, \u201calthough the Tort Claims Act is strictly construed, the rule of strict construction should not be replaced by one of \u2018technical stringency.\u2019 \u201d Id. (quoting Distributors, Inc. v. Dept. of Transp., 41 N.C. App. 548, 550, 255 S.E.2d 203, 205, cert. denied, 298 N.C. 567, 261 S.E.2d 123 (1979)).\nIn Davis, this Court concluded that the plaintiffs affidavit \u201cgave sufficient notice to defendant to allow it to narrow its investigation to those involvedf,]\u201d in that the affidavit \u201cnamed the correct state agency, as required by section 143-297, the specific division of that agency, as well as the [location] where the alleged negligence took place.\u201d 121 N.C. App. at 111, 465 S.E.2d at 6. Despite the affidavit\u2019s failure to name the specific employee found negligent by the Full Commission, we affirmed the Full Commission\u2019s ruling, noting that \u201cthe objective of section 143-297 was achieved.\u201d Id.\nOur decision in Davis was consistent with previous determinations by this Court, including Distributors, Inc. In Distributors, Inc., plaintiff\u2019s affidavit named only one of the two employees whose \u201cnegligence combined and concurred\u201d to injure plaintiff. 41 N.C. App. at 552, 255 S.E.2d at 206. However, we determined that \u201c[t]he name of Joe Bill Moxley, the driver of the truck, and other information in plaintiff\u2019s affidavit gave to defendant sufficient notice of which employee or employees were involved so that defendant could properly confine its investigation.\u201d Id. Similarly, in Smith v. N.C. Dep\u2019t of Transp., 156 N.C. App. 92, 576 S.E.2d 345 (2003), the plaintiff named the Secretary of Transportation, two division managers, and \u201cunknown employees\u201d as the individuals directly responsible for the safety of a particular railroad crossing. This Court determined that the \u201cnames and information [provided in plaintiff\u2019s affidavit] gave defendant sufficient information to \u2018enable the agency to investigate the employee actually involved rather than all employees.\u2019 \u201d Id. at 100, 576 S.E.2d at 351 (quoting Distributors, Inc., 41 N.C. App. at 551, 255 S.E.2d at 206). We thus concluded that the plaintiff was not required to name the specific employee responsible for placing a sign at the railroad crossing.\nIn the instant case, the Full Commission\u2019s decision reversed the opinion and award of Deputy Commissioner Ford, who had previously found that defendant\u2019s employees had been negligent in their duties with respect to plaintiff\u2019s injuries. Deputy Commissioner Ford had concluded that both Wall and the personnel under her supervision were negligent in their care and maintenance of the tree. However, on appeal, the Full Commission based its denial of plaintiff\u2019s claim upon its determination that plaintiff had failed to demonstrate that either of the two employees named in the affidavit were negligent. Specifically, the Full Commission found that \u201c[t]here was no evidence that.. . Ron Ferguson had any involvement with the tree that fell on plaintiff,\u201d and that \u201c[t]here is no showing that Ms. Wall violated any applicable standard of care in her management of the horticulture department and supervision of the horticulture staff.\u201d Thus, because the Full Commission determined that \u201c[plaintiff] failed to prove that either of the named employees of defendant, Ron Ferguson and Virginia Wall[,] breached any applicable standard of care,\u201d the Full Commission concluded that \u201cplaintiff has failed to prove negligence and is not entitled to recovery.\u201d I conclude that the Full Commission erred.\nPlaintiff\u2019s affidavit contains a detailed depiction of how her injuries occurred and specifically states that the injuries occurred inside the African Pavilion. The affidavit names Ferguson and Wall as negligent employees and contains reference to their supervisory titles. The affidavit alleges that \u201c[t]he injury occurred because the ficus tree which was indoors had been permitted to grow too large for its roots or alternatively had not been properly maintained to prevent it from becoming unsafe[,]\u201d and it states that \u201c[t]he ficus tree was under the exclusive control of the Zoo personnel.\u201d I conclude that plaintiff\u2019s affidavit provides \u201csufficient notice to defendant to allow it to narrow its investigation to those involved\u201d in the maintenance of the ficus tree, including the personnel supervised by Wall. Davis, 121 N.C. App. at 111, 465 S.E.2d at 6.\nHowever, there is no indication that the Full Commission considered whether any of Wall\u2019s personnel were negligent in their duties. The Full Commission\u2019s own findings of fact and conclusions of law indicate that it confined its review to the two employees named in the affidavit. By placing emphasis on the words \u201cmanagement\u201d and \u201csupervision\u201d contained within the Full Commission\u2019s finding of fact number eighteen and conclusion of law number four, the majority concludes that the Full Commission considered the actions of Wall\u2019s staff in its opinion and award. I would not make such a leap. Although I recognize that the Full Commission serves as an appellate committee and is given the authority to reverse the decision of a Deputy Commissioner, I conclude that the Full Commission\u2019s decision in the instant case involved the application of a \u201ctechnical stringency,\u201d and thus runs counter to the legislative purpose of the Tort Claims Act. I would therefore hold that the Full Commission erred in failing to consider the negligence of the personnel supervised by Wall, and, accordingly, I would reverse and remand the case.", "type": "dissent", "author": "TIMMONS-GOODSON, Judge," } ], "attorneys": [ "Knott, Clark, Berger & Whitehurst, L.L.P., by Joe Thomas Knott, III, Michael W. Clark, and Bruce W. Berger, for plaintiff appellant.", "Attorney General Roy Cooper, by Special Deputy Attorney General William H. Borden, for defendant appellee." ], "corrections": "", "head_matter": "TINYA CHERNEY, Plaintiff v. NORTH CAROLINA ZOOLOGICAL PARK, Defendant\nNo. COA03-1615\n(Filed 2 November 2004)\n1. Tort Claims Act\u2014 tree falling on state property \u2014 standard applied \u2014 reasonable care\nThe Industrial Commission utilized the proper legal standard in its review of a deputy commissioner\u2019s award in a Tort Claims case that began when a tree fell on a patron of the State Zoo. Although the case cited by the Commission for its standard as to the duty owed members of the public by landowners predated Nelson v. Freeland, 349 N.C. 615, it is consistent with the Nelson standard (reasonable care).\n2. Tort Claims Act; Premises Liability\u2014 care of tree at zoo\u2014 findings supported by evidence\nThe findings of the Industrial Commission in a Tort Claims case were supported by the evidence, and the findings supported its conclusion that plaintiff had not proven negligence, where plaintiff was injured by a falling tree at the state Zoo, the tree had been monitored for over 10 years and appeared healthy, the care provided the tree exceeded industry standards, and the tree was supported by double the recommended number of cables.\nJudge Timmons-Goodson dissenting\nAppeal by plaintiff from opinion and award entered 28 July 2003 by the North Carolina Industrial Commission. Heard in the Court of Appeals 14 September 2004.\nKnott, Clark, Berger & Whitehurst, L.L.P., by Joe Thomas Knott, III, Michael W. Clark, and Bruce W. Berger, for plaintiff appellant.\nAttorney General Roy Cooper, by Special Deputy Attorney General William H. Borden, for defendant appellee." }, "file_name": "0684-01", "first_page_order": 714, "last_page_order": 723 }