February 2019 - Parks & Recreation - 34

LAW REVIEW

After Middleton stood, he
looked over at Core and realized
Core was " not standing up " and
" probably something bad " had
happened. Middleton asked if
Core was okay. Although Core did
not lose consciousness, he did not
move and was just not responsive
or getting up. Middleton assisted Core back onto the pier while
maintaining the stability of Core's
neck and spine. A fraternity member called for emergency medical
services 10 minutes later, and an
ambulance arrived within approximately 35 minutes.
Core was airlifted to a regional
medical center, where he underwent spinal surgery for a broken
cervical spine. Core subsequently
underwent physical therapy and
regained many of his physical abilities, but " continues to lack sensation on his right side and right
lower extremity and has weakness
in his left hand. " It is also expected
that Core will have some pain associated with arthritis in the future.
Core incurred medical expenses totaling $146,083.69.
In an incident report prepared
after Core's accident, a park ranger stated that he asked numerous
fraternity members three separate
times if anyone had checked the
depth of the water before Core
conducted the dive. They responded that no one had checked the
depth at the end of the pier. According to the park ranger, different members of the group had told
him they thought the depth of the
water was deeper than the actual
depth of the lake at that location.
The park ranger also noted in the
incident report that " the lake's color was dark due to the tannic acids
from the organic matter, which
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Parks & Recreation

makes judging the depth of the
water very difficult. "
Reasonable Person Standard
Core filed a claim with the Commission seeking damages from the
North Carolina Division of Parks
and Recreation (NCDPR) under
the North Carolina Tort Claims
Act, N.C. Gen. Stat. § 143-291 et
seq. ( " Tort Claims Act " ). Core alleged NCDPR and its agents were
negligent in that they " failed to
keep the park's premises reasonably safe and failed to warn of shallow water conditions " that NCDPR " knew or should have known
were dangerous to visitors of the
park. " NCDPR denied Core's allegations of negligence and further
asserted that Core's claim should
be " barred " based on his " own
contributory negligence. "
The Commission filed a decision and order on August 22,
2017, concluding the defendant
NCDRP negligently failed " to
warn Plaintiff of the hidden danger of shallow water at the end of
the pier at the park. " The Commission, however, denied Core's
claim after concluding: " Plaintiff 's
injuries on 4 October 2014 " were
" proximately caused by Plaintiff 's
own contributory negligence. "
Core appealed.
On appeal, Core claimed that
" the shallow water beneath the
pier constituted a hidden danger. "
Moreover, Core argued the Commission's conclusion that he was
" contributorily negligent " was not
supported by the evidence, regardless of " any level of knowledge " of
the hazardous condition attributable to Core.
The appeals court acknowledged " well-settled law " that " the

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Tort Claims Act does not authorize recovery, unless the claimant
is free from contributory negligence. " As noted by the appeals
court, an individual is " guilty of
contributory negligence " when
the failure to exercise ordinary
care concurs with the negligence
of the defendant and contributes
to the plaintiff 's injury.
Every person having the capacity to exercise ordinary care for his
own safety against injury is required by law to do so. Ordinary
care is such care as an ordinarily
prudent person would exercise
under the same or similar circumstances to avoid injury.... A
plaintiff 's conduct on a particular
occasion must be viewed in light of
what a reasonable person would
have done under the same or similar circumstances.
Under the circumstances of this
case, Core had argued " a person
of ordinary prudence would have
concluded that the water was deep
enough to safely perform a shallow dive without verifying the water's depth. "
What You See Is What You Get?
According to the appeals court,
" specific findings of fact " were
required before determining that
an adequate legal basis existed
to conclusively establish contributory negligence. As a result, before determining whether
Core's claim was " barred by his
own contributory negligence, "
the appeals court would require
the Commission to determine
" whether Plaintiff 's conduct on 4
October 2014 did or did not conform to an objective standard of
behavior - the care an ordinarily
prudent person would have exer-

February 2019 - Parks & Recreation

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