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Rolan v. N.C. Dep't of Agriculture and Consumer Services

Court of Appeals of North Carolina

April 1, 2014

JEFF ROLAN 1; MATTHEW COLE ROLAN, Minor, by WILLIAM S. MILLS as Guardian Ad Litem; MATTHEW BALDWIN, Minor, by SIDNEY S. EAGLES, JR., as Guardian Ad Litem and TIMOTHY BALDWIN and KELLIE BALDWIN; ISABEL SEVERA, Minor, by SIDNEY S. EAGLES, JR.[,] as Guardian Ad Litem and KATHLEEN SEVERA; WILLIAM SHY, Minor, by SIDNEY S. EAGLES, JR., as Guardian Ad Litem and TODD SHY and JENNIFER SHY; SCOTT VENABLE, Minor, by SIDNEY S. EAGLES, JR.[,] as Guardian Ad Litem and WILLIAM VENABLE and SUSAN VENABLE; CARTER CHURCH, Minor, by SIDNEY S. EAGLES, JR.[,] as Guardian Ad Litem and CHAD CHURCH and AMANDA CHURCH; LUKE CHAUVIN, Minor, by SIDNEY S. EAGLES, JR., as Guardian Ad Litem and KEITH CHAUVIN and JENNIFER CHAUVIN; CHAD ENNIS, Minor, by SIDNEY S. EAGLES, JR., as Guardian Ad Litem and JAYSON ENNIS and WENDY ENNIS; KATHLEEN MANESS, Minor, by SIDNEY S. EAGLES, JR.[,] as Guardian Ad Litem and MICHAEL MANESS and REBECCA MANESS; CARSON MCGEE, Minor, by SIDNEY S. EAGLES, JR., as Guardian Ad Litem and MIKE MCGEE and VICKIE MCGEE; TERRA PERRIGO, Minor, by SIDNEY S. [1] EAGLES, JR.[,] as Guardian Ad Litem and TERRY PERRIGO and LAURA PERRIGO; CAMERON CHAUVIN, Minor, by SIDNEY S. EAGLES, JR.[,] as Guardian Ad Litem and KEITH CHAUVIN and JENNIFER CHAUVIN; AEDIN GRAY, Minor, by WILLIAM W. PLYLER as Guardian Ad Litem; KYLE GRAY; ELIZABETH GRAY; and REECE C. BUFFALOE, Minor, by WADE H. PASCHAL, JR.[,] as Guardian Ad Litem, Plaintiffs,
v.
N.C. DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES, Defendant

Heard in the Court of Appeals November 7, 2013.

Page 789

North Carolina Industrial Commission. I.C. Nos. TA-20317-18, 20327-37, 20369-71, 20779.

Roberts & Stevens, P.A., by Mark C. Kurdys and Robin A. Seelbach; Kirby & Holt, Inc., by William B. Bystrynski and David F. Kirby; Pulley Watson King & Lischer, P.A., by Charles F. Carpenter and Guy Crabtree; Moody, Williams & Roper, by C. Todd Roper; and Marler Clark, LLP, PS, by William D. Marler, for Plaintiffs.

Attorney General Roy Cooper, by Associate Attorney General Christopher McLennan; and North Carolina Department of Agriculture and Consumer Services, by Tina L. Hlabse, for Defendant.

STEPHENS, Judge. Judges ERVIN and DILLON concur.

OPINION

Page 790

STEPHENS, Judge.

Appeal by Plaintiffs from Decision and Order filed 4 January 2013 by the North Carolina Industrial Commission. Heard in the Court of Appeals 7 November 2013.

Factual Background and Procedural History

This case arises from an Escherichia coli O157:H7 (" E. coli " ) outbreak linked by the North Carolina Department of Health and Human Services and the Centers for Disease Control to a petting zoo operated during the 2004 North Carolina State Fair (" the Fair" ). E. coli is a bacterium that can cause potentially life-threatening illness in humans. Children under five years old are especially at risk. Exposure to the bacterium can result from " eating contaminated meat or leafy greens, exposure to contaminated water, or through contact" with the feces of animals carrying the bacteria in their intestinal tract. Animals carrying the disease " can look perfectly healthy and still be shedding the E. coli [] bacteria in their stool," and transmission can occur " when people pet, touch, or are licked by animals." Over 800,000 people visited the Fair in October of 2004. Of those 800,000 people, an estimated 20,000 visited the petting zoo, and approximately 108 contracted E. coli .

Among the people who contracted E. coli, a number of minor children (" Plaintiffs" ) were found to be infected. As a result, Plaintiffs filed claims for damages against Defendant North Carolina Department of Agriculture and Consumer Services under the North Carolina Tort Claims Act. Those claims were eventually consolidated into a single action, and Plaintiffs submitted a joint motion for partial summary judgment on the issue of liability to the North Carolina Industrial Commission (" the Commission" ) on 5 November 2010. Plaintiffs' motion was denied by order filed 20 July 2011. Following a hearing on the merits, a deputy commissioner entered a decision denying Plaintiffs' claims. Plaintiffs appealed to the full Commission, and, following a hearing on Plaintiffs' appeal, the Commission entered a Decision and Order denying all of Plaintiffs' claims.

In its Decision and Order, the Commission found the following pertinent facts: In preparation for the Fair, Defendant employed a number of veterinarians and other professionals who worked to ensure the health and safety of Fair patrons. A pre-fair risk assessment revealed that, while " hand washing stations were strategically positioned in or near the petting zoo[,] . . . there was an almost complete absence of signs warning people to wash their hands after contacting animals . . . ." As a result, one of the veterinarians put up additional signage and hand

Page 791

sanitizers before the Fair opened. Testimony and exhibits presented before the Commission indicate that there were a number of signs at the petting zoo during the Fair.

Structurally, the petting zoo

consisted of a 40 foot by 60 foot open tent with a 10[-]foot-wide gate area at the front. At the center of the front gate was a 4[-]foot-wide area covered by a large, wooden sign that contained the petting zoo rules, including rules against smoking, eating[,] or drinking inside the petting zoo. On either side of that sign were 3[-]foot-wide gates, with the one on the right being the entrance to the petting zoo, and the one on the left being where patrons would exit from the petting zoo. Fair patrons standing outside the petting zoo could see inside and would know that they were entering an area with sheep and goats roaming about on a bed of wood shavings. At the back of the tent there were separate pens containing animals that were too large to be roaming among small children. At the entrance to the petting zoo, there were two hand sanitizing dispensers, and immediately outside the exit gate, there were three more hand sanitizing dispensers. In addition, [a building containing] 8 permanent bathrooms with soap and water facilities[] was immediately across the street from the petting zoo, and there was another building with 4 bathrooms and soap and water facilities across from the petting zoo . . . .
. . . In addition to the zoo rules sign located at the entrance to the petting zoo, there were approximately 5 signs taped to the side of the tent above the feed machines which said, in English and in Spanish, " ALWAYS WASH HANDS BEFORE AND AFTER TOUCHING ANIMALS IN ORDER TO PROTECT THEM AND YOU." [The owner of the petting zoo also] posted a sign . . . on the exit gate which read, " REMEMBER . . . wash hands after petting animals." [Moreover, t]here were . . . hand washing signs posted beneath the hand sanitizing dispensers, which [the owner] recalled having [an image of two hands being washed]. The sign was laminated and done on paper reflecting that it was issued by [Defendant]. The sign states " Hand to Mouth contact after touching animals or their environment is a health risk! Always Wash hands Before and After Touching Animals in Order to Protect Them and You!" At the bottom of that sign[] additional information was provided regarding high risk individuals, washing hands with soap and water before eating and before and after touching animals and their environment, and avoiding hand[-]to[-]mouth activities in the livestock areas, such as eating, smoking[,] and nail biting. . . . [S]igns warning patrons to wash their hands were posted inside the petting zoo and at the petting zoo exit, and . . . the more detailed signage . . . was posted at the bottom of the hand sanitizing stations outside the entrance and exit to the zoo.

(Italics added). There were also a number of people working at the petting zoo who monitored the people entering and exiting, removed feces, and " replace[d] the soiled wood shavings with clean wood shavings." Some parents recalled seeing the signs and others did not. " Many parents testified that it was very crowded inside the petting zoo and that their children were knocked down by goats and sheep trying to get food." At oral argument, Plaintiffs' counsel referred to the zoo as a " free for all."

Field veterinarian Dr. Carol Woodlief, Defendant's main point of contact on the ground, testified that she and the other field veterinarians were aware of and took steps to protect against a number of diseases, including salmonella, campylobacter, coccidiosis, sore mouth, ringworm, and E. coli . Dr. Woodlief noted, however, that " E. coli [] was not 'any bigger on her mind' than any of the other potential diseases" in 2004. The field veterinarians " made sure that every animal arriving at the Fair had the requisite health certificate . . . ." They also " observed the animals to make sure there were no obvious signs of illness" and " physically handled animals to check for lumps or anything that would suggest sore mouth or ringworm . . . ." Animals showing signs of disease were pulled. Field veterinarians also " continued

Page 792

to observe all of the animals throughout the duration of the . . . Fair."

Given the above facts, the Commission concluded that the precautions taken by Defendant were sufficient to meet its duty of care. ...


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