{ "id": 8209119, "name": "TINYA CHERNEY, PLAINTIFF v. NORTH CAROLINA ZOOLOGICAL PARK, Defendant", "name_abbreviation": "Cherney v. North Carolina Zoological Park", "decision_date": "2007-08-07", "docket_number": "No. COA06-1060", "first_page": "203", "last_page": "216", "citations": [ { "type": "official", "cite": "185 N.C. App. 203" } ], "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": "633 S.E.2d 677", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12636460, 12636461, 12636462 ], "weight": 2, "year": 2006, "pin_cites": [ { "page": "677" } ], "opinion_index": 0, "case_paths": [ "/se2d/633/0677-01", "/se2d/633/0677-02", "/se2d/633/0677-03" ] }, { "cite": "613 S.E.2d 498", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12632987, 12632988 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/se2d/613/0498-01", "/se2d/613/0498-02" ] }, { "cite": "603 S.E.2d 842", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12631952 ], "year": 2004, "pin_cites": [ { "parenthetical": "Timmons-Goodson, J., dissenting" } ], "opinion_index": 0, "case_paths": [ "/se2d/603/0842-01" ] }, { "cite": "525 S.E.2d 481", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "484", "parenthetical": "emphasis supplied" } ], "opinion_index": 0 }, { "cite": "136 N.C. App. 587", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11241064 ], "year": 2000, "pin_cites": [ { "page": "591", "parenthetical": "emphasis supplied" } ], "opinion_index": 0, "case_paths": [ "/nc-app/136/0587-01" ] }, { "cite": "346 S.E.2d 137", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "parenthetical": "finding that the failure of appellant to \"except and assign error separately to each finding or conclusion that he or she contends is not supported by the evidence ... will result in waiver of the right to challenge the sufficiency of the evidence to support particular findings of fact\"" } ], "opinion_index": 0 }, { "cite": "317 N.C. 333", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4775585, 4775853, 4771860, 4771992, 4775065 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/317/0333-01", "/nc/317/0333-05", "/nc/317/0333-03", "/nc/317/0333-02", "/nc/317/0333-04" ] }, { "cite": "340 S.E.2d 755", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "759-60" } ], "opinion_index": 0 }, { "cite": "79 N.C. App. 678", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523105 ], "year": 1986, "pin_cites": [ { "page": "684" } ], "opinion_index": 0, "case_paths": [ "/nc-app/79/0678-01" ] }, { "cite": "357 S.E.2d 439", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "86 N.C. App. 299", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12128493 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc-app/86/0299-01" ] }, { "cite": "408 S.E.2d 729", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1991, "pin_cites": [ { "page": "731" }, { "page": "731" } ], "opinion_index": 0 }, { "cite": "330 N.C. 93", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2510111 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "98" }, { "page": "97" } ], "opinion_index": 0, "case_paths": [ "/nc/330/0093-01" ] }, { "cite": "570 S.E.2d 498", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "opinion_index": 0 }, { "cite": "356 N.C. 297", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511298, 1511302, 1511117, 1511568, 1511191 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/nc/356/0297-05", "/nc/356/0297-02", "/nc/356/0297-01", "/nc/356/0297-04", "/nc/356/0297-03" ] }, { "cite": "562 S.E.2d 602", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "604" } ], "opinion_index": 0 }, { "cite": "150 N.C. App. 428", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9081506 ], "year": 2002, "pin_cites": [ { "page": "430" } ], "opinion_index": 0, "case_paths": [ "/nc-app/150/0428-01" ] }, { "cite": "507 S.E.2d 882", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "892", "parenthetical": "Wynn, J." } ], "opinion_index": 0 }, { "cite": "349 N.C. 615", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571622 ], "year": 1998, "pin_cites": [ { "page": "631-32", "parenthetical": "Wynn, J." } ], "opinion_index": 0, "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", "parenthetical": "emphasis supplied" } ], "opinion_index": 0 }, { "cite": "321 N.C. 706", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2566622 ], "year": 1988, "pin_cites": [ { "page": "709", "parenthetical": "emphasis supplied" } ], "opinion_index": 0, "case_paths": [ "/nc/321/0706-01" ] }, { "cite": "361 N.C. 147", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3737940 ], "weight": 2, "year": 2006, "pin_cites": [ { "page": "147" } ], "opinion_index": 0, "case_paths": [ "/nc/361/0147-01" ] }, { "cite": "496 S.E.2d 790", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1998, "pin_cites": [ { "page": "793", "parenthetical": "emphasis supplied" }, { "page": "793" }, { "page": "793" } ], "opinion_index": 0 }, { "cite": "128 N.C. App. 402", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11654971 ], "weight": 3, "year": 1998, "pin_cites": [ { "page": "405-06", "parenthetical": "emphasis supplied" }, { "page": "405" }, { "page": "405" } ], "opinion_index": 0, "case_paths": [ "/nc-app/128/0402-01" ] }, { "cite": "359 N.C. 419", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3802899 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/nc/359/0419-01" ] }, { "cite": "166 N.C. App. 684", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8413379 ], "year": 2004, "pin_cites": [ { "parenthetical": "Timmons-Goodson, J., dissenting" } ], "opinion_index": 0, "case_paths": [ "/nc-app/166/0684-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 143-291", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "pin_cites": [ { "page": "(a)" }, { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "622 S.E.2d 710", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634563 ], "year": 2005, "pin_cites": [ { "page": "712", "parenthetical": "findings of fact may be set aside on appeal only \"when there is a complete lack of competent evidence to support them\" (quotation omitted)" } ], "opinion_index": 1, "case_paths": [ "/se2d/622/0710-01" ] }, { "cite": "633 S.E.2d 681", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12636469 ], "year": 2006, "opinion_index": 1, "case_paths": [ "/se2d/633/0681-01" ] }, { "cite": "625 S.E.2d 591", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635049 ], "year": 2006, "pin_cites": [ { "page": "593" } ], "opinion_index": 1, "case_paths": [ "/se2d/625/0591-01" ] }, { "cite": "175 N.C. App. 219", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8351270 ], "year": 2005, "pin_cites": [ { "page": "221", "parenthetical": "findings of fact may be set aside on appeal only \"when there is a complete lack of competent evidence to support them\" (quotation omitted)" } ], "opinion_index": 1, "case_paths": [ "/nc-app/175/0219-01" ] }, { "cite": "532 S.E.2d 522", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "opinion_index": 1 }, { "cite": "509 S.E.2d 411", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "414", "parenthetical": "\"[T]he findings of fact of the Industrial Commission are conclusive on appeal when supported by competent evidence, even though there be evidence that would support findings to the contrary.\" (citation and quotation omitted)" } ], "opinion_index": 1 }, { "cite": "349 N.C. 676", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571666 ], "year": 1998, "pin_cites": [ { "page": "681", "parenthetical": "\"[T]he findings of fact of the Industrial Commission are conclusive on appeal when supported by competent evidence, even though there be evidence that would support findings to the contrary.\" (citation and quotation omitted)" } ], "opinion_index": 1, "case_paths": [ "/nc/349/0676-01" ] }, { "cite": "541 S.E.2d 148", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "opinion_index": 1 }, { "cite": "351 N.C. 107", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155749, 1155941, 1155819, 1155794, 1155923 ], "year": 1999, "opinion_index": 1, "case_paths": [ "/nc/351/0107-05", "/nc/351/0107-04", "/nc/351/0107-01", "/nc/351/0107-02", "/nc/351/0107-03" ] }, { "cite": "516 S.E.2d 643", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "646" } ], "opinion_index": 1 }, { "cite": "134 N.C. App. 158", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11143479 ], "year": 1999, "pin_cites": [ { "page": "161" } ], "opinion_index": 1, "case_paths": [ "/nc-app/134/0158-01" ] }, { "cite": "360 N.C. 533", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3786851, 3789866, 3797838, 3787316, 3785941, 3790583, 3791002 ], "year": 2006, "opinion_index": 1, "case_paths": [ "/nc/360/0533-07", "/nc/360/0533-01", "/nc/360/0533-03", "/nc/360/0533-06", "/nc/360/0533-05", "/nc/360/0533-04", "/nc/360/0533-02" ] }, { "cite": "175 N.C. App. 786", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8353502 ], "year": 2006, "pin_cites": [ { "page": "788-89" } ], "opinion_index": 1, "case_paths": [ "/nc-app/175/0786-01" ] }, { "cite": "533 S.E.2d 467", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "opinion_index": 1 }, { "cite": "350 N.C. 108", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 132282, 131930, 132234, 132199 ], "weight": 2, "year": 1999, "opinion_index": 1, "case_paths": [ "/nc/350/0108-02", "/nc/350/0108-04", "/nc/350/0108-03", "/nc/350/0108-01" ] }, { "cite": "467 S.E.2d 715", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "opinion_index": 1 }, { "cite": "342 N.C. 656", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 795971, 795908, 796133, 796109, 795919 ], "year": 1996, "opinion_index": 1, "case_paths": [ "/nc/342/0656-04", "/nc/342/0656-01", "/nc/342/0656-03", "/nc/342/0656-05", "/nc/342/0656-02" ] }, { "cite": "463 S.E.2d 567", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "569", "parenthetical": "citation omitted" } ], "opinion_index": 1 }, { "cite": "120 N.C. App. 857", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11918657 ], "year": 1995, "pin_cites": [ { "page": "859-60", "parenthetical": "citation omitted" } ], "opinion_index": 1, "case_paths": [ "/nc-app/120/0857-01" ] }, { "cite": "570 S.E.2d 498", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "opinion_index": 1 }, { "cite": "356 N.C. 297", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511298, 1511302, 1511117, 1511568, 1511191 ], "year": 2002, "opinion_index": 1, "case_paths": [ "/nc/356/0297-05", "/nc/356/0297-02", "/nc/356/0297-01", "/nc/356/0297-04", "/nc/356/0297-03" ] }, { "cite": "562 S.E.2d 602", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2002, "pin_cites": [ { "page": "604" }, { "page": "604" }, { "page": "604" } ], "opinion_index": 1 }, { "cite": "150 N.C. App. 428", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9081506 ], "weight": 3, "year": 2002, "pin_cites": [ { "page": "430" }, { "page": "430" }, { "page": "430" } ], "opinion_index": 1, "case_paths": [ "/nc-app/150/0428-01" ] }, { "cite": "507 S.E.2d 882", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1998, "pin_cites": [ { "page": "892" }, { "page": "892", "parenthetical": "\"[W]e impose upon [owners and occupiers of land] only the duty to exercise reasonable care in the maintenance of their premises for the protection of lawful visitors.\"" } ], "opinion_index": 1 }, { "cite": "349 N.C. 615", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571622 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "632" }, { "page": "631" } ], "opinion_index": 1, "case_paths": [ "/nc/349/0615-01" ] }, { "cite": "365 S.E.2d 898", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1988, "pin_cites": [ { "page": "900" }, { "page": "900" } ], "opinion_index": 1 }, { "cite": "321 N.C. 706", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2566622 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "709" }, { "page": "709" } ], "opinion_index": 1, "case_paths": [ "/nc/321/0706-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 143-291", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 1 } ], "analysis": { "cardinality": 1024, "char_count": 27781, "ocr_confidence": 0.739, "pagerank": { "raw": 9.809775475898601e-08, "percentile": 0.5330154383518112 }, "sha256": "d30291c4792e570ce649f68338e7bf7061194e599f98bfacf0b9502d86000bd7", "simhash": "1:898c42cc51462cdc", "word_count": 4613 }, "last_updated": "2023-07-14T20:04:26.584781+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge CALABRIA concurs.", "Judge WYNN concurs in part and dissents in part by separate opinion." ], "parties": [ "TINYA CHERNEY, PLAINTIFF v. NORTH CAROLINA ZOOLOGICAL PARK, Defendant" ], "opinions": [ { "text": "TYSON, Judge.\nTinya Cherney (\u201cplaintiff\u2019) appeals from the North Carolina Industrial Commission\u2019s (\u201cthe Commission\u201d) decision and order entered 28 April 2006, which denied her claim for damages from the North Carolina Zoological Park (\u201cdefendant\u201d). We affirm.\nI. Background\nPlaintiff\u2019s claim for damages is before this Court for a second time. On 7 September 1999, plaintiff filed a claim to recover damages for personal injuries against defendant pursuant to the Tort Claims Act, N.C. Gen. Stat. \u00a7 143-291, et seq. Plaintiff\u2019s affidavit alleged:\nThat the injury or property damage occurred in the following manner: [Plaintiff] 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 (sic) 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 [defendant\u2019s] personnel and not subject to wind or any other natural force.\nOn 21 December 1999, defendant filed an answer denying plaintiff\u2019s allegations.\nOn 13 August 2001, Deputy Commissioner, Richard B. Ford, heard arguments and received evidence from both parties. On 30 October 2001, Deputy Commissioner Ford ordered defendant to pay plaintiff $500,000.00 in compensatory damages. Defendant appealed to the Full Commission.\nOn 29 April 2002, the matter came before the Full Commission for hearing. On 28 July 2003, a majority of the Commission reversed Deputy Commissioner Ford\u2019s recommended opinion and award and denied plaintiff s claim. Commissioner Bemadine S. Ballance dissented from the Commission\u2019s decision and order.\nPlaintiff appealed to this Court. On 14 September 2004, the matter was initially heard before this Court. On 2 November 2004, a divided panel of this Court affirmed the Commission\u2019s decision and order denying plaintiff\u2019s claim. See Cherney v. N.C. Zoological Park, 166 N.C. App. 684, 603 S.E.2d 842 (2004) (Timmons-Goodson, J., dissenting). Plaintiff appealed to our Supreme Court, and on 5 May 2005, the Court reversed for the reasons stated in Judge Hmmon-Goodson\u2019s dissenting opinion in a per curiam opinion. See Cherney v. N.C. Zoological Park, 359 N.C. 419, 613 S.E.2d 498 (2005).\nOn 12 October 2005, plaintiff filed a motion for entry of award with the Commission. On 28 November 2005, defendant filed a response to plaintiff\u2019s motion with the Commission. On 28 April 2006, the Commission entered a second decision and order denying plaintiff\u2019s claim. The Commission entered its decision and order without further hearing on the matter or action by either party. Commissioner Ballance again dissented from the Commission\u2019s decision and order. Plaintiff appeals.\nII. Issues\nPlaintiff argues: (1) the Commission\u2019s second decision and order giving rise to this appeal should be deemed moot or improper; (2) the Commission erred by failing to apply a premises-liability legal standard to defendant\u2019s negligence; and (3) the Commission\u2019s findings of fact are not supported by the evidence.\nHI. Standard of Review\nThis Court has stated:\nPursuant to [N.C. Gen. Stat. \u00a7 143-291(a)], the Commission has exclusive jurisdiction to hear claims falling under [The Tort Claims] Act.\nDecisions of the Commission . . . under the Tort Claims Act can only be appealed to this Court for errors of law . . . 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. This is so even if there is evidence which would support findings to the contrary. Therefore, when considering an appeal from the Commission, our Court is limited to two questions: (I) whether competent evidence exists to support the Commission\u2019s findings of fact, and (2) whether the Commission\u2019s findings of fact justify its conclusions of law and decision.\nSimmons v. North Carolina DOT, 128 N.C. App. 402, 405-06, 496 S.E.2d 790, 793 (1998) (emphasis supplied) (internal citations and quotation omitted).\nIV. The Commission\u2019s Second Decision and Order\nPlaintiff argues the Commission\u2019s second decision and order is improper because our Supreme Court ruled in her favor in 2005 and allowed her Petition for Writ of Mandamus in 2006. We disagree.\nOn 8 May 2006, plaintiff filed a Petition for Writ of Mandamus with our Supreme Court seeking to end all litigation in this matter and to require defendant to pay the damages awarded to her by Deputy Commissioner Ford on 30 October 2001. At the time plaintiff submitted her brief to this Court on 20 November 2006, plaintiff\u2019s Writ of Mandamus remained pending before our Supreme Court.\nOn 14 December 2006, our Supreme Court denied plaintiff\u2019s Petition for Writ of Mandamus and stated, \u201cthe mandate of this Court\u2019s 5 May 2005 per curiam opinion was satisfied by the [Commission\u2019s] issuance of its new Decision and Order on 28 April 2006.\u201d Cherney v. N.C. Zoological Park, 361 N.C. 147, 633 S.E.2d 677 (2006). This assignment of error is overruled.\nV. Legal Standard\nPlaintiff argues the Commission erred by failing to apply a premises-liability legal standard to plaintiff\u2019s negligence claim. Plaintiff asserts the issue was not whether defendant\u2019s staff reasonably monitored or otherwise cared for the ficus, but whether defendant\u2019s staff failed to correct or warn its visitors of the known hidden hazard posed by the ficus. Plaintiff contends the Commission failed to address defendant\u2019s legal duty to warn her of the known hidden danger of the tree. We disagree.\nN.C. Gen. Stat. \u00a7 143-291(a) states:\nThe Industrial Commission shall determine whether or not each individual claim arose as a result of the negligence of any officer, employee, involuntary servant or agent of the State while acting within the scope of his office, employment, service, agency or authority, under circumstances where the State of North Carolina, if a private person, would be liable to the claimant in accordance with the laws of North Carolina.\nOur Supreme Court has stated:\nUnder the [Tort Claims] Act, negligence is determined by the same rules as those applicable to private parties.\nTo establish actionable negligence, plaintiff must show that:\n(1) defendant failed to exercise due care in the performance of some legal duty owed to plaintiff under the circumstances; and\n(2) the negligent breach of such duty was the proximate cause of the injury.\nBolkhir v. North Carolina State Univ., 321 N.C. 706, 709, 365 S.E.2d 898, 900 (1988) (emphasis supplied).\nOur Supreme Court eliminated the distinctions between licensees and invitees in premises-liability cases and stated:\n[T]his Court concludes that we should eliminate the distinction between licensees and invitees by requiring a standard of reasonable care toward all lawful visitors. Adoption of a true negligence standard eliminates the complex, confusing, and unpredictable state of premises-liability law and replaces it with a rule which focuses the jury\u2019s attention upon the pertinent issue of whether the landowner acted as a reasonable person would under the circumstances.\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 v. Freeland, 349 N.C. 615, 631-32, 507 S.E.2d 882, 892 (1998) (Wynn, J.) (emphasis supplied).\nFollowing Nelson, this Court stated the duty to exercise reasonable care \u201crequires that the landowner not unnecessarily expose a lawful visitor to danger and give warning of hidden hazards of which the landowner has express or implied knowledge.\u201d Bolick v. Bon Worth, Inc., 150 N.C. App. 428, 430, 562 S.E.2d 602, 604, disc. rev. denied, 356 N.C. 297, 570 S.E.2d 498 (2002).\nUpon remand, the Commission concluded as a matter of law:\n5. The greater weight of the evidence shows that Ms. Wall\u2019s practices and management of her staff in the care of the ficus ben-jamina 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 or the staff at the North Carolina Zoo breached any applicable standard of care. The greater weight of the evidence shows that the actions of the staff at the North Carolina Zoo in following the standards and practices of Ms. Wall in the care of the ficus benjamina were reasonable and met or exceeded the standards of the field, including the monitoring, record keeping, pruning, watering, fertilizing, cabling, syringing and mixing of the soil. Therefore, plaintiff has failed to prove negligence and is not entitled to recovery.\n(Emphasis supplied).\nThe Commission also found as fact:\n18. The greater weight of the evidence indicates that neither Ms. Wall nor her staff 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. There is no showing that any member of Ms. Wall\u2019s staff violated any applicable standard of care in the completion of their duties regarding the care of the ficus.\n(Emphasis supplied).\nPlaintiff admits \u201cdefendant\u2019s personnel at all times adequately cared for, monitored and managed the Ficus, and met the applicable \u2018standard of care\u2019 for doing so.\u201d Plaintiff only argues the Commission applied the wrong legal standard because it failed to address defendant\u2019s legal duty to warn her of the known hidden danger of the ficus. Finding of fact numbered 18 is unchallenged, binding, and clearly shows the Commission properly applied the legal standards from both Nelson \u00e1nd Bolick. Id. This assignment of error is overruled.\nVI. Findings of Fact\nPlaintiff argues the Commission\u2019s findings of fact are not supported and must be set aside because all of the evidence leads to the conclusion defendant\u2019s negligence was the proximate cause of her injuries. Plaintiff asserts the unequivocal and uncontroverted evidence is that defendant had notice of a potentially dangerous condition on its premises and failed to correct or warn its visitors. We disagree.\n\u201c[T]he scope of review on appeal is limited to those issues presented by assignment of error in the record on appeal.\u201d Koufman v. Koufman, 330 N.C. 93, 98, 408 S.E.2d 729, 731 (1991). This Court has stated:\nWhere findings of fact are challenged on appeal, each contested finding of fact must be separately assigned as error, and the failure to do so results in a waiver of the right to challenge the sufficiency of the evidence to support the finding. Taylor v. N.C. Dept. of Transportation, 86 N.C. App. 299, 357 S.E.2d 439 (1987); Concrete Service Corp. v. Investors Group, Inc., 79 N.C. App. 678, 684, 340 S.E.2d 755, 759-60, cert, denied, 317 N.C. 333, 346 S.E.2d 137 (1986) (finding that the failure of appellant to \u201cexcept and assign error separately to each finding or conclusion that he or she contends is not supported by the evidence ... will result in waiver of the right to challenge the sufficiency of the evidence to support particular findings of fact\u201d).\nOkwara v. Dillard Dep\u2019t Stores, Inc., 136 N.C. App. 587, 591, 525 S.E.2d 481, 484 (2000) (emphasis supplied). \u201cWhere no exception is taken to a finding of fact..., the finding is presumed to be supported by competent evidence and is- binding on appeal.\u201d Koufman v. Koufman, 330 N.C. at 97, 408 S.E.2d at 731.\nAs noted, \u201c[T]he findings of fact of the Commission shall be conclusive if there is any competent evidence to support them. This is so even if there is evidence which would support findings to the contrary.\u201d Simmons, 128 N.C. App. at 405, 496 S.E.2d at 793.\nHere, plaintiff has separately and specifically assigned error to only two of the Commission\u2019s findings of fact and argues they are not supported by any competent evidence:\n7. The last recorded check on cables on the ficus tree were made by experienced staff members on Friday, July 17, 1998. No problems were recorded. Ms. Wall learned from a staff member after the incident involving plaintiff that one of the cables was a little bit loose, but the degree of looseness was so minor as to not warrant recordation, therefore there was not sufficient notice to the staff that the ficus benjamina could present a hazard to the public and it was not unreasonable to wait until Monday for the pruning given the circumstances.\n11. On July 18, 1998, the multiple stemmed ficus tree appeared healthy and free from decay. There were no indications that the tree was diseased or under stress. It did not appear to be hazardous and had stood for more than ten years under the protocols then in effect.\nPlaintiff was injured when a ficus tree fell on 18 July 1998 in defendant\u2019s indoor African Pavilion. Virginia Wall (\u201cWall\u201d), defendant\u2019s curator of horticulture, testified six \u201cthree-eighths-inch aircraft cable[s] . . . bolt[ed] into the concrete\u201d were used to aid the tree in staying upright. It was \u201cprotocol\u201d for staff to inspect the cables monthly for slack, tension, deterioration, and rust. The cables were replaced and repaired at times. The monthly checks on the cables were not routinely recorded, unless staff members discovered what appeared to be a problem.\nWall testified she expected to be notified by staff if there \u201cwas a large scale problem\u201d or \u201ca problem they perceived as being dangerous.\u201d The cables were checked on 17 July 1998, the day before the accident. No problems were noted by defendant\u2019s staff. Defendant\u2019s records stated, \u201c7/17/98 all cables checked. No problems noted.\u201d Wall was informed by a staff member after the accident one of the cables was \u201ca little bit loose.\u201d Wall testified:\nI have no record of loose cables other than the incident report, and that was after the fact. In my opinion, reading old logs \u2014 if [the staff] felt it was a slack cable, they would have noted that in the daily logs, and they did not. So it didn\u2019t even come up on their radar that it was a problem.\n(Emphasis supplied).\nThe tree was scheduled for regular \u201csummer pruning\u201d on 20 July 1998. The tree had previously been pruned in January 1998. Wall testified: (1) the top growth on the tree was not an abnormal amount; (2) the amount of top growth \u201cwas typical for right before pruning\u201d; and (3) she had no reason to think the tree was going to fall at this particular time.\nCompetent evidence in the record also shows: (1) on 18 July 1998, the tree appeared healthy and free from decay; (2) the tree did not appear to be a problem and had stood for more than ten years with the maintenance protocols in effect; (3) the cause of the tree\u2019s fall is unknown; and (4) the tree falling was \u201cunforeseeable, unpreventable, and extremely rare.\u201d\nThe Commission\u2019s findings of fact are supported by competent evidence in the record and are \u201cconclusive\u201d on appeal. Simmons, 128 N.C. App. at 405, 496 S.E.2d at 793. These findings of fact support the Commission\u2019s conclusions of law denying plaintiff\u2019s claims for damages. This assignment of error is overruled.\nVIL Conclusion\nThe Commission\u2019s decision and order entered 28 April 2006 is properly before us. Our Supreme Court denied plaintiff\u2019s Petition for Writ of Mandamus and stated, \u201cthe mandate of this Court\u2019s 5 May 2005 per curiam opinion was satisfied by the [Commission\u2019s] issuance of its new Decision and Order on 28 April 2006.\u201d Cherney, 361 N.C. at 147, 633 S.E.2d at 677.\nThe Commission applied the proper premises-liability legal standard to plaintiff\u2019s negligence claim, as shown in finding of fact numbered 18 and conclusion of law numbered 5. The findings of fact to which plaintiff assigned error and argued are supported by competent evidence. These findings of fact support the Commission\u2019s conclusion of law denying plaintiff\u2019s claim for damages. The Commission\u2019s decision and order is affirmed.\nAffirmed.\nJudge CALABRIA concurs.\nJudge WYNN concurs in part and dissents in part by separate opinion.", "type": "majority", "author": "TYSON, Judge." }, { "text": "WYNN, Judge,\nconcurring in part and dissenting in part.\nI concur with that portion of the majority\u2019s opinion that finds that the Full Commission\u2019s second Opinion and Award in this case is not moot, and that this appeal is therefore proper. However, because I find that the Full Commission erred as a matter of law in its application of premises liability to the facts at hand, I would reverse and remand the Opinion and Award for further consideration. I therefore respectfully dissent.\nThe majority points to the Full Commission\u2019s finding that \u201c[t]he greater weight of the evidence indicates that neither Ms. Wall nor her staff knew or should have known that the ficus tree was likely to fall[,]\u201d and the conclusion that the North Carolina Zoo staff met or exceeded the standards of the field in monitoring and tending to the ficus tree, to conclude that the Full Commission properly applied the standard for premises liability. I disagree.\nAs recognized by the majority, the Tort Claims Act waives governmental immunity for certain acts of negligence by state employees, with \u201csuch negligence . . . determined by the same rules as those applicable to private parties.\u201d Bolkhir v. North Carolina State Univ., 321 N.C. 706, 709, 365 S.E.2d 898, 900 (1988); see also N.C. Gen. Stat. \u00a7 143-291 (2005). Negligence must be shown by proving that a defendant state employee or agency \u201cfailed to exercise due care in the performance of some legal duty owed to plaintiff under the circumstances,\u201d as well as that the breach of duty was the proximate cause of the injury. Bolkhir, 321 N.C. at 709, 365 S.E.2d at 900.\nIn a premises liability case, the duty to exercise reasonable care \u201crequires that the landowner not necessarily expose a lawful visitor to danger and give warning of hidden hazards of which the landowner has express or implied knowledge.\u201d Bolick v. Bon Worth, Inc., 150 N.C. App. 428, 430, 562 S.E.2d 602, 604, disc. review denied, 356 N.C. 297, 570 S.E.2d 498 (2002). Thus, where in a negligence action a plaintiff must show that the defendant had a duty to the plaintiff and that the defendant breached that duty, thereby causing the plaintiff\u2019s injuries, see Lavelle v. Schultz, 120 N.C. App. 857, 859-60, 463 S.E.2d 567, 569 (1995) (citation omitted), disc. review denied, 342 N.C. 656, 467 S.E.2d 715 (1996), a plaintiff in a premises liability action must show that the defendant owed her a duty, and that the defendant breached that duty by unnecessarily exposing her to danger and failing to warn her of \u201chidden hazards of which the landowner has express or implied knowledge!,]\u201d thereby causing her injuries. Bolick, 150 N.C. App. at 430, 562 S.E.2d at 604; see also 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); Grayson v. High Point Development Ltd. Partnership, 175 N.C. App. 786, 788-89, 625 S.E.2d 591, 593, disc. review denied, 360 N.C. 533, 633 S.E.2d 681 (2006). The reasonableness of a defendant\u2019s exercise of care \u201cmust be judged against the conduct of a reasonably prudent person under the circumstances.\u201d Lorinovich v. K-Mart Corp., 134 N.C. App. 158, 161, 516 S.E.2d 643, 646, cert. denied, 351 N.C. 107, 541 S.E.2d 148 (1999).\nHere, there is no dispute that the North Carolina Zoo owed Ms. Cherney a duty of reasonable care, see Nelson, 349 N.C. at 631, 507 S.E.2d at 892 (\u201c[W]e impose upon [owners and occupiers of land] only the duty to exercise reasonable care in the maintenance of their premises for the protection of lawful visitors.\u201d), nor that the falling of a ficus tree in the exclusive control of the Zoo caused her injuries. The question of liability in this case instead turns on whether the Zoo breached its duty of reasonable care to Ms. Cherney by exposing her to danger unnecessarily and failing to warn of the hidden hazard of the ficus tree \u2014 provided that the Zoo and its employees had either express or implied knowledge that the tree was, in fact, in danger of falling. See Bolick, 150 N.C. App. at 430, 562 S.E.2d at 604.\nAlthough the Full Commission found that \u201c[t]he greater weight of the evidence indicates that neither Ms. Wall nor her staff knew or should have known that the ficus tree was likely to fall[,]\u201d the record contains evidence not only to the contrary, but indeed, I believe such a finding is completely inconsistent with the evidence presented to the Full Commission. See Adams v. AVX Corp., 349 N.C. 676, 681, 509 S.E.2d 411, 414 (1998) (\u201c[T]he findings of fact of the Industrial Commission are conclusive on appeal when supported by competent evidence, even though there be evidence that would support findings to the contrary.\u201d (citation and quotation omitted)), reh\u2019g denied, 350 N.C. 108, 532 S.E.2d 522 (1999); Rhodes v. Price Bros., Inc., 175 N.C. App. 219, 221, 622 S.E.2d 710, 712 (2005) (findings of fact may be set aside on appeal only \u201cwhen there is a complete lack of competent evidence to support them\u201d (quotation omitted)).\nAt the time the ficus tree fell the first time, in 1988, it was between eighteen and twenty feet tall, with a more compact root ball; when it fell on Ms. Cherney, it was approximately thirty-four feet tall. As found by the Full Commission, after it fell the first time, the tree was \u201creplanted, and six, seven-strand 3/8\" cables going in four directions were looped around the tree and attached to the planter walls.\u201d The purpose of the cables was \u201cto aid the tree in keeping it upright and to assist in monitoring the tree.\u201d Additionally, the Full Commission found as fact that the \u201ccables on the tree were thereafter checked monthly for slack, tension and deterioration\u201d by the Zoo staff, as well as \u201cgiven a daily visual inspection for general health, appearance, and special problems[.]\u201d Two of the four cables had snapped when the tree fell on Ms. Chemey.\nThe very fact that the tree was cabled to the planter walls illustrates that the Zoo and its employees had \u201cexpress or implied knowledge\u201d that the tree might fall; if there had been no danger, then the tree would not have needed to be cabled in such a fashion, nor would the Zoo employees have needed to monitor it so closely. Moreover, the Full Commission itself stated that the cables were \u201cused to aid the tree in keeping it upright,\u201d suggesting that there was an implied recognition that the tree might again fall. In light of these actions, as well as the fact that the tree was in a shallow concrete planter, growing bigger by the year, and had previously fallen, the testimony by the Zoo employees that they had no knowledge that the tree might fall is simply not competent evidence. The question is not whether the tree was likely to fall, as addressed by the Full Commission in the finding of fact quoted by the majority opinion. Rather, the issue is whether a Zoo visitor such as Ms. Cherney \u2014 or one of the tens of thousands of schoolchildren who pass through the African Pavilion each year \u2014 was unnecessarily exposed to danger and was not warned of a hidden hazard.\nGiven that the Zoo staff was aware of the danger of the tree falling, both through the previous incident and its ongoing monitoring and cabling of the tree, I would conclude that the Zoo had a duty to warn Ms. Chemey and other Zoo visitors of the possibility that the tree might fall. The Full Commission made no finding as to any warning sign posted by the Zoo or other indication that the tree was a hidden hazard, and the record contains no reference to such a warning. The Zoo staff could also have moved the tree to a different location, where it would not have injured visitors even if it fell, or could have pruned it back even further to ensure that it was not outgrowing its planter.\nHundreds of thousands of people visit the North Carolina Zoo each year; it is one of our State\u2019s most popular and well-maintained attractions. However, in light of the knowledge of Zoo staff as to the possible danger posed to the public of the ficus tree in question, I believe the Zoo employees failed to exercise the care of a reasonably pmdent person under the circumstances by failing to warn of the hidden hazard here.\nBecause the Full Commission made findings contrary to logic and unsupported by competent evidence, I believe the Full Commission erred as a matter of law in its application of the premises liability negligence standard. I would therefore reverse and remand for additional consideration.", "type": "concurring-in-part-and-dissenting-in-part", "author": "WYNN, Judge," } ], "attorneys": [ "Knott, Clark & Berger, L.L.P., by Michael W. Clark, Kenneth R. Murphy, III, and Joe Thomas Knott, III, 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. COA06-1060\n(Filed 7 August 2007)\n1. Tort Claims Act\u2014 second opinion \u2014 writ of mandamus\nThe Industrial Commission\u2019s second decision and order denying plaintiff\u2019s claim for personal injuries under the Tort Claims Act was not improper even though plaintiff contends our Supreme Court ruled in her favor in 2005 and allowed her petition for writ of mandamus in 2006, because: (1) at the time plaintiff submitted her brief to the Court of Appeals on 20 November 2006, plaintiff\u2019s writ of mandamus remained pending before our Supreme Court; and (2) on 14 December 2006, our Supreme Court denied plaintiff\u2019s petition for writ of mandamus and stated the mandate of its 5 May 2005 per curiam opinion was satisfied by the Commission\u2019s issuance of its new decision and order on 28 April 2006.\n2. Premises Liability\u2014 duty of care \u2014 warning of hidden dangers\nThe Industrial Commission did not fail to apply a premises liability legal standard in an action seeking to recover damages for personal injuries under the Tort Claims Act based upon defendant State Zoo\u2019s alleged negligence in monitoring a ficus tree, because: (1) the duty to exercise reasonable care requires that the landowner not unnecessarily expose a lawful visitor to danger and give warning of hidden hazards of which the landowner has express or implied knowledge; and (2) plaintiff admits defendant\u2019s personnel at all times adequately cared for, monitored and managed the ficus, and met the applicable standard of care for doing so.\n3. Tort Claims Act\u2014 premises liability \u2014 findings of fact \u2014 sufficiency of evidence\nIn a case under the Tort Claims Act in which the Industrial Commission denied plaintiff\u2019s claim for injuries received from a falling ficus tree at the State Zoo, the evidence supported findings by the Commission that cables supporting the tree were checked the day before the accident and no problems were recorded; the Zoo staff lacked sufficient notice that the ficus tree could present a hazard to the public; on the day of the accident the tree looked healthy and free from decay; there were no indications that the tree was diseased or under stress; and the tree had stood for more than ten years under the protocols then in effect.\nJudge WYNN concurring in part and dissenting in part.\nAppeal by plaintiff from decision and order entered 28 April 2006 by Commissioner Dianne C. Sellers for the North Carolina Industrial Commission. Heard in the Court of Appeals 22 May 2007.\nKnott, Clark & Berger, L.L.P., by Michael W. Clark, Kenneth R. Murphy, III, and Joe Thomas Knott, III, for plaintiff-appellant.\nAttorney General Roy Cooper, by Special Deputy Attorney General William H. Borden, for defendant-appellee." }, "file_name": "0203-01", "first_page_order": 235, "last_page_order": 248 }