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Brown, Moore & Associates Wins New Trial for Child Victim

Jul 12, 2011 - Premises Liability by

Brown, Moore & Associates, PLLC, recently won a North Carolina Court of Appeals decision which granted a new trial to one of their injured clients. The case, which concerned a premises liability issue, will give injured children a greater opportunity to be fairly evaluated by a jury in negligence actions occurring on another’s premises.

The twelve-year old client was injured after sliding over a waterfall on New Years Creek in Blowing Rock, NC. The town knew of two young adult males who had suffered injury in the same manner only two weeks before. The town of Blowing Rock had set up trails leading to the three waterfalls in the area, and also installed viewing platforms for visitors. No signs were posted warning visitors of the potential dangers they may be facing if they left the platform.

When the observation area was first built, there was a blockade between the platform and a tree that restricted access to the creek, however, this had disappeared over time. The child and her friend were trying to cross New Years Creek when she slipped, causing her to be carried downstream and over the waterfall, resulting in serious injuries.

The jury heard significant evidence from both sides concerning the child’s age and experience, yet the trial judge gave no instruction as to whether or how to consider the child’s age and experience in the area. Rather, the judge instructed the jury to apply a “reasonable person” standard. During deliberations the jury even inquired of the judge how the child’s age was to be considered when evaluating the reasonableness of the landowner’s precautions. The trial judge refused to further instruct the jury. Ultimately, the jury ruled in favor of the defendants, stating that the defendant’s failure to warn was not the cause of the child’s injuries. Brown, Moore & Associates appealed the lower court’s ruling, alleging that the trial court erred when it failed to give proper instructions to the jury.

On appeal, Brown Moore & Associates raised three main points in regard to the instructions: first, the trial court did not include information regarding a landowner’s duty of care to children; second, the court failed to discuss the landowner’s duty of care addressing the age of the victim; and finally that the court did not give a proper response to the jury’s question regarding the landowner’s duty of care applicable to children and known users of the trail.

The Court of Appeals agreed the judge’s instruction was erroneous, and ordered a new trial, sending the case back for a re-trial. The Appeals Court found the trial court did not properly instruct the jury to consider the duty of care a landowner owed to a young victim, which may have led to the jury being confused on the proper law to apply. The appellate court felt that the improper instructions misled the jury, leading to its decision to grant a new trial.

The holding is important to all children injured on the property of others where the landowner knows children are on the premises, and there has been insufficient warning of known risks that may not be appreciated by children due to their age and/or inexperience.

To read the opinion online, please click here.