BENSON E. LEE, III,
Plaintiff,
v
.
Cumberland County
No. 01 CVS 5858
FANTASY LAKE, INC.,
Defendant.
Donald C. Hudson, for plaintiff-appellant.
Brown, Crump, Vanore & Tierney, L.L.P., by O. Craig Tierney,
Jr., for defendant-appellee.
HUDSON, Judge.
Plaintiff Benson E. Lee, III was injured when he dove off a
diving platform located at defendant Fantasy Lake, Inc. Plaintiff
sued defendant, and defendant moved for summary judgment. The
trial court granted defendant's motion, and plaintiff now appeals.
For the reasons set forth below, we affirm the decision of the
trial court. This case arises out of a diving accident that
occurred on 2 August 1997 at Fantasy Lake in Hope Mills, North
Carolina. Man-made Fantasy Lake was built for swimming and diving,
and is open to the public. Defendant operates and maintains the
lake, which has a clay bottom, sloping from the shallowest depth at
the lake's edge to a depth of approximately ten feet at the lake's
center. Near the center of the lake is a diving platform whichhas two levels, one eight feet, two inches from the surface of the
water and the other sixteen feet, seven inches from the surface.
Signs are posted near the platform indicating a water depth of ten
feet.
Each year, the defendant has the lake drained, and the sand at
the bottom raked and leveled. Then, several truckloads of new sand
are added to replace sand that has washed away. The lake then fills
itself by several naturally occurring springs on the lake bottom.
Fantasy Lake's manager and president, Cecil S. Dunn, uses a
transit, a surveying and engineering instrument, to make sure the
lake is at the correct level at the beginning of each season.
On 2 August 1997, plaintiff paid admission to Fantasy Lake and
executed what he called a shallow dive off the first level of the
diving platform. He hit something and broke his left arm and
shoulder. He was not sure what he hit, but thought it could have
been the bottom of the lake, the side of an “entrenchment,” or a
stump. As a result of his accident, plaintiff underwent multiple
operations on his left arm and shoulder area, leaving him with
permanent injury. The United States Veteran Administration has
been paying plaintiff's medical expenses, which currently exceed
$85,000. The Veteran Administration has asserted claims for these
services as part of the present action.
In a recorded statement taken in February 1998, plaintiff
admitted that he had consumed alcohol on the day of the accident,
although he denied it in subsequent depositions. Michael R. Dzuba,
the emergency medical technician who had responded to the accident,said that when he examined plaintiff on the day of the accident
that plaintiff had slurred speech, an odor of alcohol, and appeared
to be intoxicated.
Plaintiff filed this suit 2 August 2001, alleging that
defendant negligently failed to maintain sufficient water depth in
the area of the diving platform. After discovery, defendant moved
for summary judgment on 22 May 2002. The trial court granted
defendant's motion, and plaintiff appeals. For the reasons below,
we affirm.
Plaintiff argues that the trial court erred because he
forecast sufficient evidence that defendant's negligence caused his
injuries. We disagree.
To establish a claim of negligence, plaintiff must show that
defendant owed him a duty, that defendant breached this duty, and
that plaintiff's damages were proximately caused by the breach.
Tise v. Yates Constr. Co., 345 N.C. 456, 460, 480 S.E.2d 677, 680
(1997). Summary judgment is appropriate where there is no genuine
issue of material fact and where the movant is entitled to judgment
as a matter of law. N.C.G.S. § 1A-1, Rule 56(c) (2001). Even
though summary judgment is seldom appropriate in a negligence
action, summary judgment may be granted where there are no genuine
issues of material fact and the plaintiff fails to show one of the
elements of negligence. Lavelle v. Schultz, 120 N.C. App. 857,
859, 463 S.E.2d 567, 569 (1995), disc. review denied, 342 N.C. 656,
467 S.E.2d 715 (1996) (citations omitted). Once the moving party
on summary judgment adequately supports its motion, the opposingparty must offer legal evidence that tends to establish beyond mere
speculation or conjecture every element of negligence. Kennedy v.
Guilford Tech. Cmty. Coll., 115 N.C. App. 581, 583, 448 S.E.2d 280,
281 (1994). Upon failure to do so, nonsuit is proper. Williamson
v. Food Lion, Inc., 131 N.C. App. 365, 366, 507 S.E.2d 313, 315
(1998), aff'd, 350 N.C. 305, 513 S.E.2d 561 (1999).
Here, plaintiff has not put forth sufficient evidence, beyond
speculation or conjecture, that defendant breached a duty owed to
him. Plaintiff produced no evidence that the ten-foot depth under
the platform violated any law, code, or statute. He has submitted
no evidence that ten feet breaches a standard of care for an eight
feet, two inches high diving platform. The evidence produced
indicated that the platform has stood at eight feet, two inches,
and the water depth at ten feet, since the lake's construction more
than thirty years ago with no injuries reported. Plaintiff does
not argue that ten feet is an unsafe condition, or specify how
defendant may have exercised less than reasonable care. He
contends that the depth of the water under the platform may have
been less than ten feet, but he offers no direct evidence to
support this assumption. Plaintiff made no measurements after the
accident, and all of the evidence before the court showed that the
depth was ten feet. Moreover, plaintiff does not contend
specifically what caused his injury. He assumed that he hit the
bottom of the lake because he came up with a hand full of grit, but
he said that he “either hit bottom, the side of a[n] entrenchment
or a stump. I don't know.” He speculates in his brief that themovement of sand might have created a shallow area or a sand bar on
the lake's bottom below the platform. Again, the record is devoid
of competent evidence to support this theory. In Miller v.
Coppage, 261 N.C. 430, 135 S.E.2d 1 (1964), plaintiff made a
similar argument based on speculation that the defendant's sand
dredging operations contributed to the decedent's death. Id. at
437, 135 S.E.2d at 6. The Supreme Court determined that although
there was evidence of dredging prior to the drowning, “there is no
evidence in the record before us to warrant a reasonable inference
that . . . excavation had anything to do with his untimely death.”
Id. The Court ruled that it was mere conjecture as to whether the
dredging operations were a proximate cause of the decedent's
drowning. The Court affirmed the trial court's entry of nonsuit,
explaining that a “resort to a choice of possibilities is
guesswork, not decision.” Id. at 437, 135 S.E.2d 6.
Because plaintiff has not forecast sufficient evidence to make
out a prima facie case of negligence, the trial court properly
granted summary judgment in defendant's favor.
The parties also dispute whether plaintiff was contributorily
negligent by diving into the lake without first ascertaining its
water depth. Because we affirm the grant of summary judgment on
the first issue, we need not consider plaintiff's second argument.
Affirmed.
Judges MARTIN and ELMORE concur.
Report per Rule 30(e).
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