Rolan v. N.C. Department of Agriculture & Consumer Services

NO. COA13-601
NORTH CAROLINA COURT OF APPEALS
Filed: 1 April 2014
JEFF ROLAN1; MATTHEW COLE ROLAN,
Minor, by WILLIAM S. MILLS as
Guardian Ad Litem; MATTHEW
BALDWIN, Minor, by SIDNEY S.
EAGLES, JR., as Guardian Ad Litem
and TIMOTHY BALDWIN and KELLIE
BALDWIN; ISABEL SEVERA, Minor, by
SIDNEY S. EAGLES, JR.[,] as
Guardian Ad Litem and KATHLEEN
SEVERA; WILLIAM SHY, Minor, by
SIDNEY S. EAGLES, JR., as Guardian
Ad Litem and TODD SHY and JENNIFER
SHY; SCOTT VENABLE, Minor, by
SIDNEY S. EAGLES, JR.[,] as
Guardian Ad Litem and WILLIAM
VENABLE and SUSAN VENABLE; CARTER
CHURCH, Minor, by SIDNEY S.
EAGLES, JR.[,] as Guardian Ad
Litem and CHAD CHURCH and AMANDA
CHURCH; LUKE CHAUVIN, Minor, by
SIDNEY S. EAGLES, JR., as Guardian
Ad Litem and KEITH CHAUVIN and
JENNIFER CHAUVIN; CHAD ENNIS,
Minor, by SIDNEY S. EAGLES, JR.,
as Guardian Ad Litem and JAYSON
ENNIS and WENDY ENNIS; KATHLEEN
MANESS, Minor, by SIDNEY S.
EAGLES, JR.[,] as Guardian Ad
Litem and MICHAEL MANESS and
REBECCA MANESS; CARSON MCGEE,
Minor, by SIDNEY S. EAGLES, JR.,
as Guardian Ad Litem and MIKE
MCGEE and VICKIE MCGEE; TERRA
PERRIGO, Minor, by SIDNEY S.
1
The parties’ briefs list “Matthew Baldwin” as the named party
in this case. Pursuant to the custom and practice of this Court,
however, we use the name first listed in the caption of the
order being appealed.
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EAGLES, JR.[,] as Guardian Ad
Litem and TERRY PERRIGO and LAURA
PERRIGO; CAMERON CHAUVIN, Minor,
by SIDNEY S. EAGLES, JR.[,] as
Guardian Ad Litem and KEITH
CHAUVIN and JENNIFER CHAUVIN;
AEDIN GRAY, Minor, by WILLIAM W.
PLYLER as Guardian Ad Litem; KYLE
GRAY; ELIZABETH GRAY; and REECE C.
BUFFALOE, Minor, by WADE H.
PASCHAL, JR.[,] as Guardian Ad
Litem,
Plaintiffs,
v. North Carolina
Industrial Commission
I.C. Nos. TA-20317–18, 20327–
37, 20369–71, 20779.
N.C. DEPARTMENT OF AGRICULTURE AND
CONSUMER SERVICES,
Defendant.
Appeal by Plaintiffs from Decision and Order filed 4
January 2013 by the North Carolina Industrial Commission. Heard
in the Court of Appeals 7 November 2013.
Roberts & Stevens, P.A., by Mark C. Kurdys and Robin A.
Seelbach; Kirby & Holt, Inc., by William B. Bystrynski and
David F. Kirby; Pulley Watson King & Lischer, P.A., by
Charles F. Carpenter and Guy Crabtree; Moody, Williams &
Roper, by C. Todd Roper; and Marler Clark, LLP, PS, by
William D. Marler, for Plaintiffs.
Attorney General Roy Cooper, by Associate Attorney General
Christopher McLennan; and North Carolina Department of
Agriculture and Consumer Services, by Tina L. Hlabse, for
Defendant.
STEPHENS, Judge.
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Factual Background and Procedural History
This case arises from an Escherichia coli O157:H7 (“E.
coli”) outbreak linked by the North Carolina Department of
Health and Human Services and the Centers for Disease Control to
a petting zoo operated during the 2004 North Carolina State Fair
(“the Fair”). E. coli is a bacterium that can cause potentially
life-threatening illness in humans. Children under five years
old are especially at risk. Exposure to the bacterium can result
from “eating contaminated meat or leafy greens, exposure to
contaminated water, or through contact” with the feces of
animals carrying the bacteria in their intestinal tract. Animals
carrying the disease “can look perfectly healthy and still be
shedding the E. coli[] bacteria in their stool,” and
transmission can occur “when people pet, touch, or are licked by
animals.” Over 800,000 people visited the Fair in October of
2004. Of those 800,000 people, an estimated 20,000 visited the
petting zoo, and approximately 108 contracted E. coli.
Among the people who contracted E. coli, a number of minor
children (“Plaintiffs”) were found to be infected. As a result,
Plaintiffs filed claims for damages against Defendant North
Carolina Department of Agriculture and Consumer Services under
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the North Carolina Tort Claims Act. Those claims were eventually
consolidated into a single action, and Plaintiffs submitted a
joint motion for partial summary judgment on the issue of
liability to the North Carolina Industrial Commission (“the
Commission”) on 5 November 2010. Plaintiffs’ motion was denied
by order filed 20 July 2011. Following a hearing on the merits,
a deputy commissioner entered a decision denying Plaintiffs’
claims. Plaintiffs appealed to the full Commission, and,
following a hearing on Plaintiffs’ appeal, the Commission
entered a Decision and Order denying all of Plaintiffs’ claims.
In its Decision and Order, the Commission found the
following pertinent facts: In preparation for the Fair,
Defendant employed a number of veterinarians and other
professionals who worked to ensure the health and safety of Fair
patrons. A pre-fair risk assessment revealed that, while “hand
washing stations were strategically positioned in or near the
petting zoo[,] . . . there was an almost complete absence of
signs warning people to wash their hands after contacting
animals . . . .” As a result, one of the veterinarians put up
additional signage and hand sanitizers before the Fair opened.
Testimony and exhibits presented before the Commission indicate
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that there were a number of signs at the petting zoo during the
Fair.
Structurally, the petting zoo
consisted of a 40 foot by 60 foot open tent
with a 10[-]foot-wide gate area at the
front. At the center of the front gate was a
4[-]foot-wide area covered by a large,
wooden sign that contained the petting zoo
rules, including rules against smoking,
eating[,] or drinking inside the petting
zoo. On either side of that sign were
3[-]foot-wide gates, with the one on the
right being the entrance to the petting zoo,
and the one on the left being where patrons
would exit from the petting zoo. Fair
patrons standing outside the petting zoo
could see inside and would know that they
were entering an area with sheep and goats
roaming about on a bed of wood shavings. At
the back of the tent there were separate
pens containing animals that were too large
to be roaming among small children. At the
entrance to the petting zoo, there were two
hand sanitizing dispensers, and immediately
outside the exit gate, there were three more
hand sanitizing dispensers. In addition, [a
building containing] 8 permanent bathrooms
with soap and water facilities[] was
immediately across the street from the
petting zoo, and there was another building
with 4 bathrooms and soap and water
facilities across from the petting
zoo . . . .
. . . In addition to the zoo rules sign
located at the entrance to the petting zoo,
there were approximately 5 signs taped to
the side of the tent above the feed machines
which said, in English and in Spanish,
“ALWAYS WASH HANDS BEFORE AND AFTER TOUCHING
ANIMALS IN ORDER TO PROTECT THEM AND YOU.”
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[The owner of the petting zoo also] posted a
sign . . . on the exit gate which read,
“REMEMBER . . . wash hands after petting
animals.” [Moreover, t]here were . . . hand
washing signs posted beneath the hand
sanitizing dispensers, which [the owner]
recalled having [an image of two hands being
washed]. The sign was laminated and done on
paper reflecting that it was issued by
[Defendant]. The sign states “Hand to Mouth
contact after touching animals or their
environment is a health risk! Always Wash
hands Before and After Touching Animals in
Order to Protect Them and You!” At the
bottom of that sign[] additional information
was provided regarding high risk
individuals, washing hands with soap and
water before eating and before and after
touching animals and their environment, and
avoiding hand[-]to[-]mouth activities in the
livestock areas, such as eating, smoking[,]
and nail biting. . . . [S]igns warning
patrons to wash their hands were posted
inside the petting zoo and at the petting
zoo exit, and . . . the more detailed
signage . . . was posted at the bottom of
the hand sanitizing stations outside the
entrance and exit to the zoo.
(Italics added). There were also a number of people working at
the petting zoo who monitored the people entering and exiting,
removed feces, and “replace[d] the soiled wood shavings with
clean wood shavings.” Some parents recalled seeing the signs and
others did not. “Many parents testified that it was very crowded
inside the petting zoo and that their children were knocked down
by goats and sheep trying to get food.” At oral argument,
Plaintiffs’ counsel referred to the zoo as a “free for all.”
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Field veterinarian Dr. Carol Woodlief, Defendant’s main
point of contact on the ground, testified that she and the other
field veterinarians were aware of and took steps to protect
against a number of diseases, including salmonella,
campylobacter, coccidiosis, sore mouth, ringworm, and E. coli.
Dr. Woodlief noted, however, that “E. coli[] was not ‘any bigger
on her mind’ than any of the other potential diseases” in 2004.
The field veterinarians “made sure that every animal arriving at
the Fair had the requisite health certificate . . . .” They also
“observed the animals to make sure there were no obvious signs
of illness” and “physically handled animals to check for lumps
or anything that would suggest sore mouth or ringworm . . . .”
Animals showing signs of disease were pulled. Field
veterinarians also “continued to observe all of the animals
throughout the duration of the . . . Fair.”
Given the above facts, the Commission concluded that the
precautions taken by Defendant were sufficient to meet its duty
of care. Specifically, the Commission stated that:
5. . . . [T]hose responsible for conducting
the 2004 . . . Fair exercised reasonable
care to keep its premises in a reasonably
safe condition for lawful visitors. Further,
the evidence demonstrates that the . . .
Fair was conducted well within the industry
standards at that time. The primary
recommendations of all concerned groups and
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publications, i.e., hand washing or hand
sanitizing stations, separation of food and
beverages from contact areas, and signage
advising that a health risk exists and that
hand washing is recommended, were fulfilled
at the . . . Fair[] in accordance with then-
existing nationwide industry standards,
which did not require that handouts and
signage include information regarding the
potential severity of the health risk.
Moreover, the practices in place at the
. . . Fair were identical to or better than
those that had been utilized at prior [state
fairs in North Carolina], none of which had
produced documented cases of E. coli[]
infection resulting from human[-]to[-]animal
contact.
6. In the absence of evidence that
[Defendant’s] employees knew or had reason
to know that the animals in the [petting
zoo] were actively shedding E. coli[] during
the 2004 . . . Fair (as contrasted with
their knowledge that ruminants have the
potential to shed E. coli[]), the . . .
Commission concludes that [Defendant’s]
employees were not negligent in failing to
warn fair patrons of a hidden hazard. Given
the presence of pathogens in our
environment, the inability to completely
eliminate enteric pathogens if human[-
to-]animal contact is going to be permitted,
and the precautions they had in place to
reduce and minimize the risk, [Defendant’s]
employees were not negligent with respect to
their duty to warn or their duty to exercise
reasonable care to keep the premises safe
for lawful visitors.
(Citations and internal quotation marks omitted; italics added).
In coming to that conclusion, the Commission focused on the fact
that — in 2004 — the danger of E. coli infection at state fairs
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was “still an emerging issue” throughout the country. According
to reports published in the months before the Fair, few states
had written guidelines on zoonotic disease or the connection
between zoonotic diseases and animal exhibits. With the goal of
reducing the risks of disease transmission, certain reports
recommended the use of informational signage; hand sanitizer or
hand washing stations with running water, soap, and disposable
towels; human-to-animal contact supervision; regular removal of
animal feces; and the prevention of eating and drinking in
human-to-animal-contact areas.2
Given its conclusions, the Commission denied Plaintiffs’
claims for damages. Commissioner Bernadine S. Ballance dissented
from the Commission’s decision on grounds that Defendant’s
pertinent employees — “all [d]octors of [v]eterinary [m]edicine”
— “knew or reasonably should have known that E. coli[] was a
hidden danger and posed a substantial risk of serious illness
and death [to the young children who visited the petting zoo]”
2
One report noted that “the only way to eliminate the risk of
zoonotic transmissions is to completely prevent interaction
between animals and humans at animal exhibits.” Recognizing that
such an option “might not be feasible or desirable,” however,
the report suggested the above strategies for minimizing
exposure.
-10-
and failed to adequately warn the Fair’s patrons of that danger.
Plaintiffs appealed the Decision and Order of the Commission.
Standard of Review
“The standard of review for an appeal from the . . .
Commission’s decision under the Tort Claims Act shall be for
errors of law only 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.” Simmons v. Columbus Cnty. Bd. of
Educ., 171 N.C. App. 725, 727, 615 S.E.2d 69, 72 (2005)
(citation and internal quotation marks omitted). “Moreover,
findings of fact which are left unchallenged by the parties on
appeal are presumed to be supported by competent evidence and
are, thus[,] conclusively established on appeal.” Kee v.
Caromont Health, Inc., 209 N.C. App. 193, 195, 706 S.E.2d 781,
782–83 (2011) (citation and internal quotation marks omitted).
“The Commission is the sole judge of the credibility of the
witnesses and the weight to be given their testimony.” Anderson
v. Lincoln Constr. Co., 265 N.C. 431, 433–34, 144 S.E.2d 272,
274 (1965).
Discussion
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On appeal, Plaintiffs assert that the Commission’s decision
should be reversed because its conclusions of law are not
supported by its findings of fact. More specifically, Plaintiffs
contend that: (1) the Commission’s findings of fact 32 and 33
are, in part, conclusions of law and, therefore, should not be
analyzed under our deferential competent evidence standard3; (2)
the Commission applied an incorrect standard of care, which “led
the Commission . . . to the erroneous conclusion that
[Defendant] was not negligent in this case”; and (3) the
Commission erred in concluding that Plaintiff’s injuries were
not proximately caused by Defendant’s negligence because the
parties had already stipulated to this fact. We affirm the
Commission’s Decision and Order.
I. Findings of Fact 32 and 33
In pertinent part, findings of fact 32 and 33 read as
follows:
32. [T]he operators of the 2004 . . . Fair
. . . exercised reasonable care in [their]
respective duties to keep the [fairgrounds,
including the petting zoo], in a safe
condition for its lawful visitors.
3
Plaintiffs do not dispute the validity of the Commission’s
other findings of fact. Therefore, those findings are presumed
to be supported by competent evidence and conclusively
established on appeal. Kee, 209 N.C. App. at 195, 706 S.E.2d at782–83.
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Regardless of whether the measures [taken]
were done in response to the [reports
published prior to the Fair], and regardless
of whether there was strict compliance with
all recommendations [made therein], the
. . . Commission finds that the evidence of
record establishes that [Defendant] carried
out [its] respective duties with reasonable
care to minimize and hopefully eliminate the
risk that fair patrons who attended the
[petting zoo] would contract E. coli[]. The
signage [Defendant] used and the hand
washing protocols [it] relied upon, in
conjunction with [its] observation and
monitoring of activities inside the petting
zoo, including constant removal of fecal
material by employees of the petting zoo,
were in keeping with the usual and customary
conduct and practices of other state fairs
in 2004 under similar circumstances. The
specific training that plaintiffs suggest
should have been given . . . had not been
developed or implemented by other state
fairs in 2004, when E. coli[] was an
emerging public health issue. The failure of
any of [Defendant’s] employees to give . . .
specific zoonotic disease training, as
opposed to . . . general discussions
regarding the need to protect the public
from the spread of disease from animals to
humans, did not . . . constitute a failure
to exercise reasonable care for the safety
of the fair patrons [in 2004]. The . . .
Commission finds that it was reasonable on
the part of [Defendant’s] employees to
believe that the practices that were in
place at the 2004 . . . Fair were sufficient
to provide adequate protection for [f]air
patrons against the transmission of zoonotic
diseases. Plaintiffs have failed to prove
that they contracted E. coli[] as a result
of failure on the part of [Defendant’s]
employees to exercise due care for their
safety.
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33. With regard to [Defendant’s] duty to
warn fair patrons of unsafe conditions, the
. . . Commission finds . . . that
[Defendant] exercised reasonable care to
provide warnings at the [petting zoo] that
contact with the animals posed a health
risk. The . . . Commission finds that [the]
signage used by [Defendant’s] employees in
2004 was sufficient to warn petting zoo
patrons of a possible health risk and
sufficient to advise them of what
precautions they should observe,
particularly given the fact that none of the
. . . employees knew or could have
determined in the exercise of due diligence
that any of the animals in the petting zoo
were actively shedding E. coli[] during the
. . . Fair. The . . . Commission finds that
a reasonable person exercising due care for
the safety of fair patrons in 2004 was not
required to provide handouts or signage
describing the potential severity of the
health risk, which had never surfaced before
at the . . . Fair, given the precautions
that were in place at the time to prevent
the spread of zoonotic disease.
On appeal, Plaintiffs contend that these “findings” are
more properly labeled mixed findings of fact and conclusions of
law because they find facts and make legal determinations based
on those findings. Therefore, Plaintiffs assert, we must not
accord findings 32 and 33 “the same deference as true findings
of fact on appeal.” Defendant does not contest this point in its
brief, merely noting that mixed findings of fact and conclusions
of law are nonetheless reviewable by this Court and pointing out
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that “the factual portion of these mixed [findings]” should
still be reviewed under the competent evidence standard.
(Emphasis added). We agree.
With regard to mixed questions of law and fact, the factual
findings of the Commission are conclusive on appeal if supported
by any competent evidence. Davis v. Columbus Cnty. Schs., 175
N.C. App. 95, 100, 622 S.E.2d 671, 675 (2005). As with separate
findings of fact and conclusions of law, the factual elements of
a mixed finding must be supported by competent evidence, and the
legal elements must, in turn, be supported by the facts. See
Horn v. Sandhill Furniture Co., 245 N.C. 173, 177, 95 S.E.2d
521, 524 (1956) (reviewing the Commission’s mixed finding and
concluding that “[t]he specific facts found are insufficient to
sustain the conclusion that the injury resulting in death arose
out of and in the course of the employment”); see also Beach v.
McLean, 219 N.C. 521, 525, 14 S.E.2d 515, 518 (1941) (“If [a
finding of fact] is a mixed question of fact and law, it is
likewise conclusive, provided there is sufficient evidence to
sustain the element of fact involved.”).
Therefore, findings of fact 32 and 33 are conclusive as to
their factual elements if supported by competent evidence and
reviewable de novo as to their legal elements. Here, though
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Plaintiffs have elected to remind us of the distinction between
a finding of fact and a conclusion of law, they fail to
challenge either the factual or legal elements of findings 32
and 33 as not based on competent evidence or not supporting the
conclusions. Instead, they merely note in their second argument,
discussed infra, that the Commission committed reversible error
by employing an incorrect statement of the law. Therefore, we
need not review the specific elements of findings 32 and 33 or
engage in an analysis of whether those elements are “factual” or
“legal.” See generally Helfrich v. Coca-Cola Bottling Co.
Consol., __ N.C. App. __, __, 741 S.E.2d 408, 412 (2013)
(“Findings of fact which are left unchallenged by the parties on
appeal are presumed to be supported by competent evidence and
are, thus[,] conclusively established on appeal.”) (citations,
internal quotation marks, and brackets omitted); N.C.R. App. P.
28(a) (“Issues not presented and discussed in a party’s brief
are deemed abandoned.”). Plaintiffs must contest these findings
in order to take advantage of the relevant standards of review
and has not done so here. Accordingly, we proceed to Plaintiffs’
premises liability argument.
II. Premises Liability
1. Appellate Review
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In their second argument on appeal, Plaintiffs contest the
validity of the Commission’s conclusion that Defendant did not
breach its duty of care on grounds that the conclusion is based
on an incorrect standard of care. Plaintiffs go on to argue that
Defendant failed to act with due care under the correct
standard. In response, Defendant contends that Plaintiffs are
barred from challenging the standard of care applied by the
Commission because they did not raise this issue before the
Commission. We disagree.
As a general rule, a party may not make one argument on an
issue at the trial level and then make a new and different
argument as to that same issue on appeal. Weil v. Herring, 207
N.C. 6, 10, 175 S.E. 836, 838 (1934) (“An examination of the
record discloses that the cause was not tried upon that theory,
and the law does not permit parties to swap horses between
courts in order to get a better mount [on appeal].”). The
rationale behind this rule is twofold. First, principles of
fairness to both parties do not permit one party to use the
appellate system to advance a new or different argument than it
employed at trial simply because that party did not properly
prepare or was unable to think of the argument below. See id.Second, as required by the process of preserving an issue for
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appellate review, the contention argued on appeal must have been
raised, argued, and ruled on in the trial court. See Wood v.
Weldon, 160 N.C. App. 697, 699, 586 S.E.2d 801, 803 (2003)
(citing the “swap horses” rule and the rule requiring the
preservation of issues for appellate review for the same point),
disc. review denied, 358 N.C. 550, 600 S.E.2d 469 (2004).
Therefore, it is implicit within the rule that a party must have
actually been able to raise an argument before the trial court
in order for it to be barred as impermissible “horse swapping.”
See Weil, 207 N.C. at 10, 175 S.E. at 838; see also Wood, 160
N.C. App. at 699, 586 S.E.2d at 803. Accordingly, arguments
limited to alleged errors of law made for the first time in the
trial court’s written opinion cannot be deemed improper simply
because those arguments were never made before the trial court.
Cf. Carden v. Owle Constr., LLC, __ N.C. App. __, __, 720 S.E.2d
825, 827 (2012) (“A trial court’s conclusions of law are fully
reviewable on appeal.”) (citation, internal quotation marks, and
ellipsis omitted). That is to say, the appealing party cannot be
charged with impermissibly swapping horses when it never mounted
one in the first place.
Here, as discussed above, Plaintiffs are not contesting a
statement or application of the law made by the Commission
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during the hearing. Rather, Plaintiffs contest the Commission’s
articulation and application of the law in its Decision and
Order. As it would be impossible for Plaintiffs to challenge the
legal principle articulated by the Commission before it was
actually stated, Plaintiffs cannot be barred by the “swap
horses” doctrine in this case. To hold otherwise would be to
require a party to anticipate a court’s opinion before it is
written, and we decline to require such foresight here.
Accordingly, Defendant’s preliminary argument is overruled, and
we proceed to Plaintiffs’ second argument on appeal.
2. Standard of Care
Plaintiffs’ second argument contains two elements. First,
Plaintiffs contend that the Commission applied an incorrect
legal standard in reaching its conclusions of law on the duty of
care owed by Defendant to the Fair patrons. Second, Plaintiffs
contend that the Commission erred in concluding that Defendant
did not violate its duty of care. We are unpersuaded on both
counts.
In order to prove a defendant’s negligence in a premises
liability case, the plaintiff must first show that the defendant
either “(1) negligently created the condition causing the
injury, or (2) negligently failed to correct the condition after
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actual or constructive notice of its existence.” Roumillat v.
Simplistic Enters., Inc., 331 N.C. 57, 64, 414 S.E.2d 339, 342–
43 (1992). “The ultimate issue which must be decided in
evaluating the merits of a premises liability claim[, however,]
is . . . whether [the defendant] breached the duty to exercise
reasonable care in the maintenance of [its] premises for the
protection of lawful visitors.” Burnham v. S&L Sawmill, Inc., __
N.C. App. __, __, 749 S.E.2d 75, 80 (citation and internal
quotation marks omitted), disc. review denied, __ N.C. __, 752
S.E.2d 474 (2013).
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. This duty includes an obligation
to exercise reasonable care with regards to
reasonably foreseeable injury by an animal.
However, premises liability and failure to
warn of hidden dangers are claims based on a
true negligence standard which focuses . . .
attention upon the pertinent issue of
whether the landowner acted as a reasonable
person would under the circumstances.
Thomas v. Weddle, 167 N.C. App. 283, 290, 605 S.E.2d 244, 248–49
(2004) (citations, internal quotation marks, and certain
ellipses omitted). Reasonable care does not require “owners and
occupiers of land to undergo unwarranted burdens in maintaining
their premises.” Royal v. Armstrong, 136 N.C. App. 465, 469, 524
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S.E.2d 600, 602, disc. review denied, 351 N.C. 474, 543 S.E.2d
495 (2000).
A. Created Harm
Plaintiffs first contend that the Commission erred by
relying solely on the rule that landowners “have a duty to
exercise reasonable care so as not to unnecessarily expose
lawful visitors to danger and to warn them of hidden hazards of
which the landowner has express or implied knowledge.”
Plaintiffs assert that the standard used by the Commission is
incorrect because Plaintiffs were not required to show that
Defendant knew or should have known about the danger of E. coli
where, as here, Defendant “created the condition causing [the]
injury.” (Emphasis in original). Therefore, Plaintiffs assert
that we must remand to the Commission for proper application of
the correct standard of care. This argument is misplaced.
Plaintiffs’ argument assumes that the Commission’s decision
turns on whether Plaintiffs adequately established that
Defendant knew or should have known about the risk of E. coli.
This is incorrect. Defendant admittedly knew there was some risk
of an E. coli infection by operating a petting zoo at the Fair.
Indeed, Dr. Woodlief testified during the hearing that she was
concerned about the possibility of a number of diseases,
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including E. coli. The fact that the Commission did not
acknowledge that negligence could be proven by showing that
Defendant either created the harm or had express or implied
knowledge of the harm has no effect on the resolution of this
case. The relevant question is whether Defendant exercised due
care in October of 2004 to protect Fair patrons against E. coli
infection and, in doing so, adequately fulfilled its duty to
warn those patrons of the risk of harm. Accordingly, the
omission described above cannot constitute reversible error, and
Plaintiffs’ argument is overruled. See Vaughn v. N.C. Dep’t of
Human Res., 37 N.C. App. 86, 90, 245 S.E.2d 892, 894 (1978) (“We
will not reverse the order of the Commission for harmless error.
To warrant reversal, the error must be material and
prejudicial.”) (citation omitted).
B. Reasonable Care Under the Circumstances
Second, Plaintiffs contend that Defendant failed to meet
its duty of care because the petting zoo unreasonably exposed
lawful visitors to “a significantly increased risk of
contracting a potentially deadly bacteria . . . .” In order to
satisfactorily minimize that risk, Plaintiffs suggest that
Defendant should have done all or some of the following: provide
better supervision, put up a fence between the children and the
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animals, require parents to carry or hold hands with small
children in order to reduce the likelihood of falling, refrain
from allowing or offering food in the zoo, and provide more
detailed information to Fair patrons about the specific danger
of E. coli infection. Plaintiffs contend that Defendant’s
failure to take such precautions was a deviation from its duty
of care because Defendant (1) was “charged with the
responsibility to minimize and prevent the transmission of
diseases from animals to humans at the . . . Fair,” (2)
“conducted its own assessments of the risks for disease
transmission at the . . . [f]airs in 2002 and 2004,” (3)
“developed and issued its own recommendations toward reducing
that risk,” and (4) had “the latest and best available
information and recommendations” regarding zoonotic diseases. We
do not find Plaintiffs’ position persuasive.
As Defendant notes in its brief, the precautions taken by
Fair officials must be viewed in light of what a reasonable
person would have done in October of 2004 to protect against the
danger of E. coli. See Thomas, 167 N.C. App. at 290, 605 S.E.2d
at 248–49. In 2004, E. coli was considered to be an “emerging
public health issue.” Only one state had legislation addressing
the disease in the context of petting zoos, and “there were no
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federal laws or regulations in 2004 prohibiting petting zoo
exhibits or preventing people from intermingling directly with
animals at petting zoo exhibits.” No evidence was presented at
the hearing that an E. coli outbreak had occurred at the Fair
prior to 2004, and the petting zoo had been an exhibit at the
Fair for the past three years — in 2001, 2002, and 2003 —
without an illness-related incident.
In addition, a doctor hired in 2005 by the International
Association of Fairs and Expositions4 to train fair officials to
prepare for the danger of E. coli in human-to-animal contact
settings testified that “most fairs allowed people to
intermingle with animals, despite the risk of E. coli[]
transmission.” Having visited fifteen to twenty fairs each year,
the doctor observed that signs used by other fairs in 2004 did
not list “specific zoonotic factors or describ[e] the specific
zoonotic risk, or severity of risk.” Rather, the signs
“primarily focused on suggesting that patrons wash their hands.”
Regarding enteric pathogens like E. coli, the doctor had
previously commented that:
We do not live in a pathogen-free
environment. . . . [T]here is no known
process or system to completely eliminate
4
The Fair is associated with this organization.
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the risk associated with enteric pathogens.
Pathogens are part of our world[,] and we
must continue to manage our environment such
that risk is reduced and consumers are
protected as effectively as possible.
The doctor testified that, even by August of 2011, he did not
see fairs listing specific zoonotic risks on signs.
Despite the inherent difficulty in eliminating the risk
that comes from enteric pathogens, officials at the 2004 Fair
participated in a “pre-fair risk assessment.” This assessment
was designed to “identify and correct any deficiencies prior to
the opening of the Fair.” According to the Commission, the
“concerns raised in the . . . [pre-fair risk assessment report]
regarding signage and hand washing stations were adequately and
appropriately addressed prior to the opening of the 2004 . . .
Fair.” In addressing those concerns, officials erected
additional signage and hand sanitizing stations at and near the
petting zoo. The signs indicated that individuals visiting the
zoo should wash their hands before and after touching the
animals. Though the signs did not specifically mention E. coli,
this omission was not atypical for fairs at that time.
While it was certainly possible for Defendant to take the
additional precautions suggested by Plaintiffs, we agree with
the Commission’s conclusion that Defendant did not fail to act
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with due care in October of 2004 to minimize the risk of
exposure to E. coli. Sources cited by the Commission note that
it is impossible to eliminate the risk of enteric pathogens,
like E. coli, in human-to-animal contact settings without
eliminating petting zoos altogether. While sparing the children
and animals from this “free for all” would have been the safer
option by all accounts, Defendant’s decision not to do so was
not a breach of its duty of care. Petting zoos were lawful in
2004, and the Commission’s findings make clear that the
precautions taken by Defendant were well within the range of
acceptable care for such zoos.
Our premises liability law does not require landowners to
eliminate the risk of harm to lawful visitors on their property
or undergo unwarranted burdens in maintaining their premises. We
conclude that the Commission correctly determined that Defendant
took reasonable steps in 2004 to appropriately reduce the
inherent risks of operating a petting zoo. While such steps
might not be sufficient to do so today, especially given the
2004 outbreak, Plaintiffs’ suggested precautions go beyond the
reasonable standard of care required of a landowner in October
of 2004. To hold otherwise would be to engage in the type of
Monday-morning quarterbacking that the law of negligence should
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avoid, and we decline to do so here. Accordingly, Plaintiffs’
second argument is overruled.
3. Proximate Cause
Lastly, Plaintiffs argue that the Commission erred in
finding of fact 32 by stating that Plaintiffs’ injuries were not
proximately caused by Defendant’s negligence, in contravention
to the parties’ stipulations and the undisputed evidence
presented at the hearing. This argument is based on a misreading
of finding of fact 32.
As discussed above, finding of fact 32 states in pertinent
part that “Plaintiffs have failed to prove that they contracted
E. coli[] as a result of failure on the part of [Defendant’s]
employees to exercise due care for their safety.” This finding
is not relevant to the issue of proximate cause. Rather, it
addresses whether Defendant acted with “due care.” Plaintiffs’
interpretation of the Commission’s use of the words “as a result
of” transmogrifies the Commission’s statement into something
other than what it is. Accordingly, Plaintiffs’ third argument
is overruled, and the Commission’s Decision and Order is
AFFIRMED.
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Judges ERVIN and DILLON concur.