Opinion
I.C. TA-16246.
Filed 28 April 2006.
This matter was appealed by plaintiff from the Opinion and Award entered by the Full Commission on July 28, 2003 to the Court of Appeals. In Case Number COA03-1615, a divided panel of the North Carolina Court of Appeals affirmed the Decision and Order of the Full Commission in a decision filed on November 2, 2004. Plaintiff appealed this matter to the North Carolina Supreme Court who filed a decision on May 5, 2005 in Case Number 606A04 reversing the decision of the Court of Appeals for the reasons stated in the dissenting opinion.
Plaintiff: Pipkin, Knott, Clark Berger, Raleigh, North Carolina; Joe Thomas Knott, III, counsel of record.
Defendant: The Honorable Roy Cooper, Attorney General, Raleigh, North Carolina; William H. Borden, Associate Attorney General, counsel of record.
***********
In accordance with the directives of the North Carolina Supreme Court and upon review of the competent evidence of record, the Full Commission enters the following Opinion and Award.
***********
The Full Commission finds as facts and concludes as matters of law the following, which were entered into by the parties as:
STIPULATIONS
1. All parties have been correctly designated and there is no question as to misjoinder or non-joinder of parties.
2. The accident involving plaintiff, which is the subject of this claim, occurred on July 18, 1998 in the African Pavilion of the North Carolina Zoological Park.
3. The plaintiff's date of birth is April 1, 1940, so at the time of the accident which is the subject of this claim, plaintiff was 58 years old.
4. The mortuary tables of N.C. Gen. Stat. § 8-46 are in evidence. According to those tables, plaintiff has a life expectancy (at her present age of 61) of 20.4 years.
5. All deposition exhibits are authentic and are admissible into evidence. Plaintiff's medical record and bills, paginated from C-0001 through C-0874, are authentic and genuine and are in evidence.
6. Plaintiff's medical records and X-rays (including positives of X-rays) are in evidence and can be used for substantive and illustrative purposes, and that such items can be used by either party in lieu of medical expert testimony. The parties agreed that no medical expert testimony would be required by live appearance, deposition or video deposition.
7. The surgeries performed at UNC Hospitals by Dr. Bos, in Raleigh by Dr. Fajgenbaum, and in Ohio by Dr. Pugh and the rehabilitation treatments plaintiff received in North Carolina and Ohio were necessary, related and resulted from the injuries plaintiff suffered in the accident which is the subject of this claim. The cost of those treatments was $80,094.67
8. The report from Dr. Pugh in Ohio is admitted into evidence in lieu of deposition testimony.
***********
Based upon the evidence of record, the Full Commission finds as fact the following:
FINDINGS OF FACT
1. Plaintiff was injured at the zoo's African Pavilion on July 18, 1998 when an approximately 34-foot tall ficus benjamina, a tropical tree with multiple trunks, fell onto a nearby Traveler's tree, a portion of which broke off and hit plaintiff. Two of the four cables on the ficus tree snapped during the fall of the tree.
2. Plaintiff's primary injury was a right femur fracture, which required multiple surgeries due to a non-union of the bone and misalignment of the healed fracture. The last surgery, to correct the alignment problem, was performed on July 6, 2000 by Kevin J. Pugh, M.D., the Director of the Division of Orthopaedic Trauma in the Department of Orthopaedics at The Ohio State University Medical Center. Dr. Pugh wrote on August 9, 2001 that plaintiff is doing quite well, her leg lengths are equal, her muscle strength is essentially equal on both sides, and that she walks with a normal gait. Dr. Pugh further found that while prior to his surgery, plaintiff had an impairment of ten percent of the whole person as a result of the accident, this has been corrected by the surgery and plaintiff now does not have a significant impairment, the residual deformity is now non existent, her joint range of motion are normal and her strength are excellent. Plaintiff's claim of a continuing need to use a cane and of continuing significant disability is not accepted as credible and is not supported by the medical evidence.
3. There was no evidence that the first of the two named employees, Ron Ferguson had any involvement with the tree that fell on plaintiff.
4. The other named employee, Virginia Wall, had been defendant's Curator of Horticulture since 1987. Ms. Wall, an expert in zoological horticulture in indoor conservatory type environments and in growing tropical plants, was responsible for the management of all of the zoo's indoor and outdoor plants through the supervision of 50 staff members. The zoo is one of the largest in the United States. At the time of the hearing before the deputy commissioner, Ms. Wall had more than 23 years in the field.
5. The ficus tree in question had been purchased and planted in 1984 when it was 18-20 feet tall. It was in a planter containing soil that was four feet deep and irregularly shaped with a radius varying from 7.5 feet to 11 feet. The tree was in the center of the planter, 7-10 feet from the walkways. The tree fell over on June 27, 1988. At the time of that fall, the tree was not cabled, it was smaller, and the tree's root ball was more compact. The tree and its roots appeared healthy so it was replanted and six, seven-strand, 3/8" cables going in four directions were looped around the tree and attached to the planter walls. The cables were used to aid the tree in keeping it upright and to assist in monitoring the tree.
6. The cables on the tree were thereafter checked monthly for slack, tension and deterioration by Virginia Wall's staff. These monthly checks on the cable were not routinely recorded in the logs unless the staff members found a change in the cables that would merit further monitoring. All plants were also given a daily visual inspection for general health, appearance, and special problems by the staff.
7. 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.
8. The tree had been pruned regularly. Pruning had been done twice a year since 1988 in the winter and summer. This was a heavy pruning to remove the weight of new foliage, to balance the tree and its root system, curtailing any shifting or change in position, removing any disease and decay, and to allow for aesthetics and more light transmission. This tree was scheduled as the first tree to be pruned during the summer pruning to begin on July 20, 1998 due to its heavy canopy. The priority and pruning had been planned by a knowledgeable and experienced team from Ms. Wall's staff that included certified tree climbers and an arborist. This was the regularly scheduled summer pruning of the tree.
9. The tree was watered every four weeks and was checked two weeks after with a soil moisture probe by members of Ms. Wall's staff. The last regular watering was on June 23, 1998 and the last moisture probe record was on July 7, 1998 which called for some spot watering in the area. There was also a regular fertilization schedule based on annual soil sample reports, and observed light levels and rate of growth in the building. A detailed record was kept of the fertilizer applied. Various biological controls and sprays were applied on other vegetation in the area of the tree.
10. Each week before the facility was opened to the public, the foliage of the plants was syringed with a hose to add humidity to the air, to wash foliage, and to control insect infestations. The tree had last been syringed by members of Ms. Wall's staff at 9:00 a.m. on July 18, 1998, some six hours before the accident.
11. 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.
12. The accident involving the plaintiff and the care of the ficus tree by Ms. Wall and her staff, and the testimony and evidence at the hearing was reviewed by Robert R. Halpern, an expert in zoological horticulture including the maintenance of tropical trees indoor in large conservatories and exhibits. Mr. Halpern had served for more than 17 years as Curator of Horticulture at the Bronx Zoo. His duties were similar to those of Ms. Wall, managing horticultural maintenance as he served for five and one half years managing horticultural maintenance at the Cincinnati Zoo. He had been involved in planning a number of major exhibits at other locations. He had been responsible for ficus trees that were 40-50 feet tall. He had visited the site and was very familiar with the program and staff at the North Carolina Zoo. Mr. Halpern found that the care of the tree in question met all industry standards including the pruning, watering, fertilizing, cabling, syringing, soil mixture, etc. The care of the tree showed incredible care and attention. The data available was insufficient to say why the tree fell and plaintiff's witnesses went too far and engaged in speculating about the mechanism of the fall and second-guessed the decisions of the staff at the scene. The fact that the tree had fallen ten years before was not relevant. The tree did not appear to be hazardous.
13. Ms. Wall is a leader in the field of zoological horticulture, a standard setter, and had an experienced staff on which to rely.
14. According to Ms. Wall and Mr. Halpern, the care and management of the ficus tree met the standards of care in the field of zoological horticulture.
15. Kenneth Twombly maintained trees and shrubs in landscapes in the Connecticut area, rather than in a conservatory environment. He did not grow ficus trees. He had no experience in growing large tropical trees and no experience in designing or managing indoor conservatory environments. He had never cabled or stabilized a tropical plant, much less a ficus benjamina, had never been to the North Carolina Zoo, and admitted that he could not see enough of the tree in the photos to say exactly what happened. He was not familiar with the standard of practice in North Carolina in the field of zoological horticulture and speculated freely about the circumstances surrounding the accident that injured plaintiff.
16. Mr. Whitley's expertise as an arborist and forester is not helpful. His experience is primarily as a Christmas tree grower and in running a tree service climbing and cutting large outdoor trees. His experience with tropical trees is extremely limited in scale and time. All he testified to was maintaining a small 14-foot tall ficus tree in a small 3 ½ feet diameter planter along with some other indoor tropical plants one day a month for some unspecified period of time. He attempted to cable the tree by attaching a cable with a lag bolt, apparently unsuccessfully, because shortly thereafter the tree was removed, thus ending his experience with this genus and species with the exception for a very small specimen in a pot at his house. Both Mr. Twombly and Mr. Whitley showed their lack of knowledge of ficus trees in contending that one could attach cables to the tree with lag bolts. However, lag bolts cannot be used to attach cables to a ficus tree because the wood is too soft and brittle. Like Mr. Twombley, Whitley had no experience in designing or managing indoor conservatory environments, had never inspected the site of the tree involved and showed no familiarity with the standard of practice in North Carolina in the field of zoological horticulture. Further, he engaged in speculation about the cause of the accident and the facts without supporting factual information.
17. The testimony of Kenneth Twombly and Cullen Whitley is given little weight as it does not supply any special expertise.
18. 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's staff violated any applicable standard of care in the completion of their duties regarding the care of the ficus.
***********
Based on the following stipulations and findings of fact, the Full Commission makes the following
CONCLUSIONS OF LAW
1. Plaintiff filed her action pursuant to the Tort Claims Act, N.C. Gen. Stat. § 143-291 et seq. (1993). This Act allows persons to sue state departments or agencies for injuries caused by negligence of state employees.
2. Pursuant to N.C. Gen. Stat. § 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. To establish actionable negligence, plaintiff must show that: "(1) defendant failed to exercise due care in the performance of some legal duty owed to plaintiff under the circumstances; and (2) the negligent breach of such duty was the proximate cause of the injury." Bolkhir v. N.C. State University, 321 N.C. 706, 709, 365 S.E.2d 898, 900 (1988).
3. Under the provisions of the Tort Claims Act, negligence is determined by the same rules applicable to private parties. Bolkhir v. N.C. State University, 321 N.C. 706, 709, 365 S.E.2d 898, 900 (1988).
4. The Tort Claims Act must be strictly construed. Northwestern Distributors, Inc. v. DOT, 41 N.C. App. 548, 255 S.E.2d 203, cert. denied, 298 N.C. 567, 261 S.E.2d 123 (1979).
5. The greater weight of the evidence shows that Ms. Wall's 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 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. Bolkhir, 321 N.C. at 709, 365 S.E.2d at 900, N.C. Gen. Stat. § 143-291.
***********
Based on the foregoing stipulations, findings of fact, and conclusions of law, the undersigned enters the following
O R D E R
1. Plaintiff's claim is hereby denied.
2. Each side shall pay its own costs.
This the 13th day of October 2005.
S/_____________________ DIANNE C. SELLERS COMMISSIONER
CONCURRING:
S/______________ BUCK LATTIMORE CHAIRMAN
DISSENTING:
S/___________________ BERNADINE S. BALLANCE COMMISSIONER
I once again dissent from the majority decision in this case. In a per curiam decision of the North Carolina Supreme Court, the Supreme Court adopted the dissenting opinion and reversed the majority decision of the North Carolina Court of Appeals, which affirmed the majority decision of the Full Commission in the instant case. Cherney v. North Carolina Zoological Park, 166 N. C. App. 684, 603 S.E.2d 842 (2004), rev'd by 359 N.C. 419, 613 S.E.2d 498 (2005).
In response to the decision of the Supreme Court, the majority merely added language to its prior Decision and Order to include the "staff" of the Curator of Horticulture, Ms. Wall. The inserting of language to the prior Decision and Order to name staff as well as Ms. Wall does not cure the errors discussed in the dissenting opinion of the Court of Appeals Judge which was adopted by the Supreme Court. Now, without further analysis of the evidence, the majority has found and concluded that plaintiff failed to prove that neither Ms. Wall nor her staff breached any applicable standard of care; therefore, plaintiff failed to prove negligence and is not entitled to recovery under the Tort Claims Act. I disagree.
In Nelson v. Freeland, 349 N.C. 615, 507 S.E.2d 882 (1998), the Supreme Court abolished any distinction between a licensee and an invitee and the different duties of care owed to each by the proprietor of the premises where the injury occurred. In Nelson, it was determined that regardless of the status of the injured person (with the exception of trespassers), the proprietor of the property in a claim for negligence owes a "duty to exercise reasonable care in the maintenance of their premises for the protection of lawful visitors." Id. On 18 July 1998, plaintiff was a lawful visitor of the North Carolina Zoological Park in Asheboro, North Carolina. Plaintiff was inside the African Pavilion when she was struck by a tree (Traveler's Tree), which broke off and fell after being hit by a falling ficus benjamina tree. Plaintiff sustained multiple injuries including a severely broken hip and dislocated femur, several broken ribs, and compression fractures to three vertebrae in her spine.
As the Curator of Horticulture, Ms. Wall was responsible for "any plant-related thing at the zoo," including deciding what plants would be planted in the African Pavilion, selecting the plants and determining how large they would be permitted to grow, the care of and inspection of the roots of the ficus tree that fell, pruning the ficus tree or bracing it from falling, and determining any special safety precautions for large trees like the ficus in an indoor environment such as the African Pavilion. In those instances where Ms. Wall did not personally attend to the specific jobs mentioned, she was responsible for overseeing the work and the supervision of those actually performing the tasks.
The ficus tree which fell on 18 July 1998 had been transplanted to the African Pavilion, an artificial environment, by the employees at the North Carolina Zoological Park in 1984, and it had been in the park's care, custody and control continuously since that time. The ficus tree had previously fallen down on 27 June 1988. At all relevant times the North Carolina Zoological Park through its agent, Ms. Wall, and her staff knew it had fallen. At the time of the first fall, the ficus tree was between 16 and 20 feet tall.
After the ficus tree fell on 27 June 1988, it was set back up and cabled by the employees of North Carolina Zoological Park. There were six, seven-strand cables, 3/8" thick, going in four directions. The cables were placed to assist the tree in standing upright and to monitor it to see if it was moving or shifting. The cables were checked for slack/tension and deterioration on a monthly basis, and were last checked on 17 July 1998. According to an incident report that was prepared following the 18 July 1998 accident, at the time of the 17 July 1998 inspection it was noted that one of the cables supporting the ficus tree was "a bit looser than normal." Ms. Wall's staff did not record any information concerning the looseness of the cable to place Ms. Wall or other staff members on notice. The staff member's failure to record his findings that one of the cables was "a bit looser than normal" constituted a negligent act because the cables were installed to help the tree remain upright and to monitor any shifting or movement of the tree.
Any movement of the tree would have been significant enough to record due to the potential for harm to visitors at the zoo from a falling tree. Since Ms. Wall's staff failed to record that a cable was looser than normal, nothing was done immediately regarding the loose cable. Defendant testified that nothing was done because the tree was scheduled for its semi-annual pruning and maintenance the following Monday, 20 July 1998; however, since Ms. Wall did not know about the loose cable until after the tree fell, she had no opportunity to determine whether safety precautions should be taken due to the loose cable. When the ficus tree fell on 18 July 1998, it was found that two of the cables had snapped. On 18 July 1998, the ficus tree had grown to approximately 34 feet tall and had a larger and heavier trunk and a larger and heavier foliage canopy than it had when it fell down the first time.
Defendant's personnel under Ms. Wall's supervision negligently breached the duty owed to plaintiff in that: (1) they were aware that the ficus tree that fell causing plaintiff's injuries had fallen in the past; (2) they were aware that one of the cables supporting the tree was loose, indicating that the tree had moved; (3) they were aware that the canopy of foliage had reached the point where the tree was so "top-heavy" that it was given a number one priority for pruning; (4) they were aware that because the base of the planter housing the tree was concrete, the roots of the tree were limited in their ability to support the height of the tree and the weight of the canopy; and (5) they were aware of the likely harm to visitors at the zoo if the tree fell during the hours of operation. In spite of defendant's awareness of the condition of the tree, the warning signs indicating an increased danger of falling, defendant sprayed the canopy of foliage on the tree with water on the morning of 18 July 1998, further adding to the weight of the canopy. The immediate danger imposed by the top heavy ficus tree was known or discoverable by defendant, and by allowing plaintiff and other patrons to enter the African Pavilion where the tree was located without taking adequate steps to ensure their safety, defendant breached its duty to exercise reasonable care in the maintenance of their premises for the protection of lawful visitors.
In order for a claimant to recover under the Act, it must be shown that the negligence of an employee of a State agency was a proximate cause of the injuries sustained by the claimant. Register v. Administrative Office of the Courts, 70 N.C. App. 763, 321 S.E.2d 24 (1984). Plaintiff has met her burden in this case, and has adequately demonstrated that the negligence of Ms. Wall and/or her staff was a proximate cause of plaintiff's injuries. For this reason, I vote to affirm the Decision and Order of the Deputy Commissioner and pay damages to plaintiff.
S/_____________________ BERNADINE S. BALLANCE COMMISSIONER