An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-966


Filed: 5 August 2003


v .                         Cumberland County
                            No. 01 CVS 5858

    Appeal by plaintiff from judgment entered 10 June 2002 by Judge Gregory A. Weeks in Cumberland County Superior Court. Heard in the Court of Appeals 16 April 2003.

    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.
    Judges MARTIN and ELMORE concur.
    Report per Rule 30(e).

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