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Tort/Negligence — STCA – Contributory Negligence — Lake Waccamaw – Water Depth

Tort/Negligence — STCA – Contributory Negligence — Lake Waccamaw – Water Depth

 

Where (1) the high botanic acid content of Lake Waccamaw makes it very difficult to determine the depth of the water by looking at it, (2) the visitor information center at Lake Waccamaw advertises its picnic area pier as “the perfect place for swimming and sunbathing,” and (3) the pier has no warning signs against diving into shallow water, plaintiff had no reason to know the dark water off the pier was only about 18 inches deep.

We reverse the Industrial Commission’s ruling that plaintiff was contributorily negligent for diving off the pier. Remanded for further proceedings.

Plaintiff, a competitive swimmer, performed a shallow dive off the pier. His spine was broken in three places when he immediately struck the lake bottom.

On a prior appeal, we determined that the record did not support the Commission’s conclusion that plaintiff had been contributorily negligent. We remanded to allow the Commission to make further findings.

On remand, the Commission relied on photographs that showed grass growing out of the water around part of the pier. However, uncontroverted testimony established that this grass grew near the shoreline, not near the pier.

There was substantial testimony describing the 375-foot length of the pier, which led plaintiff to believe the water at the end of the pier was deep enough for swimming. We reject the Commission’s finding that the absence of a diving board or boat docks should have indicated that the water surrounding the pier was too shallow for diving.

Although a warning sign advises of specific dangers from aquatic wildlife and mussel shells, it does not inform visitors that the “perfect place for swimming” is only 18 inches deep.

We also reject the Commission’s finding that the darkness of the water would indicate to a reasonable person the need for further investigation. A reasonably prudent person would just as soon regard the inability to see the bottom of the lake as an indicator that the lakebed lay more than 18 inches beneath the surface of the water, since visibility tends to decrease as depth increases in most natural bodies of water in North Carolina.

The park superintendent noted that under certain conditions, even he would be unable to distinguish the shallow depth of the water at the pier from the much deeper water at the Big Creek boat ramp. Indeed, the superintendent admitted that the depth and visibility of the water could fluctuate from day to day, or even hour to hour.

The evidence established plaintiff did not know and had no reason to know that the water was much shallower than it appeared. Plaintiff was not required to shape his behavior by circumstances of which he was justifiably ignorant.” Plaintiff looked for warning signs, noted that the pier was the “perfect place for swimming,” and saw the presence of boats throughout the park and swim ladders on the pier’s swim platform before entering the water. Therefore, his actions could not be said to be unreasonable, and there is no evidence to support a finding that plaintiff should have known about Lake Waccamaw’s botanic acid level.

Reversed and remanded.

Core v. North Carolina Division of Parks & Recreation (Lawyers Weekly No. 012-091-21, 20 pp.) (April Wood, J.) Appealed from the Industrial Commission. Philip Miller and Lauren McAndrew for plaintiff; Alexander Walton for defendant. 2021-NCCOA-153

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