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LEE JETER DAVIES, Guardian ad Litem for ELIZABETH H. HARDY, a
minor, and LEE JETER DAVIES, Individually, Plaintiffs, v. FORREST
RAY LEWIS, JAN LEWIS, and LUCY LEWIS, Defendants
No. COA98-701
(Filed 4 May 1999)
Negligence--contributory--diving into shallow water
The trial court correctly granted summary judgment for defendants in a negligence action
arising from an injury suffered when the minor plaintiff (Elizabeth) dove from defendants’ dock
into shallow water to join defendants’ daughter on a personal water craft.  Elizabeth knew from
her experience as a trained diver that diving into water of an unknown depth was dangerous, but
did so by her own choosing and at her own risk.  Her decision to dive without attempting to
measure the water’s depth constitutes contributory negligence.
Appeal by plaintiffs from order entered  3 March  1998 by
Judge James G. Llewellyn in New Hanover County Superior Court.
Heard in the Court of Appeals  27 January  1999.
Anderson, Daniel & Coxe, by Henry L. Anderson, Jr., for
plaintiff-appellants.
Marshall, Williams & Gorham, L.L.P., by William Robert
Cherry, Jr., and John L. Coble, for defendant-appellees.
LEWIS, Judge.
On the afternoon of  19 August  1994 and at the invitation of
defendant Lucy Lewis  ("Lucy"), age thirteen, plaintiff Elizabeth
H. Hardy  ("Elizabeth"), age fourteen, traveled on the
Intracoastal Waterway via her personal watercraft  (referred to in
both parties' briefs as a "wave runner") to visit Lucy.    Lucy was
waiting for Elizabeth on defendants' floating dock, which was
part of the pier extending from defendants' property into the
Waterway.    After Elizabeth arrived and docked her wave runner,
Lucy boarded the wave runner and started it while Elizabeth laid
down on the dock to sunbathe.
Within seconds, Lucy was approximately  10 or  15 feet into
the Intracoastal Waterway when she called for Elizabeth to "come




on."    Elizabeth, fearing that her mother would take the wave
runner from her if she found out another person was on it alone,
got up from the dock and dove in the water.    The water was
approximately  12 inches deep, and Elizabeth struck her head and
broke her neck upon diving.    When Lucy asked her what happened,
Elizabeth told her, "I dove in."    When Lucy asked why Elizabeth
did so, Elizabeth stated, "I did a shallow water dive.    I thought
I could do it."
Prior to that date, Elizabeth had been swimming and diving
from the defendants' dock approximately six times, during which
she was never able to see more than one or two inches into the
water; she had not, however, previously dove in the direction she
did that day.    All of these dives were what Elizabeth considered
"shallow dives," and she had learned how to dive in this manner
under instruction at a camp.    She also was instructed at camp not
to dive into water when she did not know its depth, and had been
told by her mother not to dive off the floating dock behind their
own home, where the water was two or three feet deep.    Based on
her experience as a diver, though, Elizabeth considered it safe
to perform a shallow dive into two feet of water.    Elizabeth knew
that the water depth changed with the tide, but assumed the tidal
conditions at defendants' floating dock would remain constant.
From this unfortunate occurrence has come a prolonged
attempt by plaintiffs to place the blame for Elizabeth's accident
on defendants.    Plaintiffs initially filed suit against
defendants Forrest Ray Lewis and Jan Lewis in federal district
court on  27 March  1995, asserting admiralty jurisdiction.    Lucy




was added as a defendant on  23 May  1995 in an amended complaint
which stated, among other things, that at the time of the
accident, Elizabeth  “was in the process of boarding a boat/vessel
pursuant to the commands and directions of the captain of said
boat,  [Lucy].  .  .                                                    .”    That court granted defendants' motion to
dismiss the case for lack of subject matter jurisdiction, noting
that it could "perceive of no serious argument and analysis which
would support a maritime nexus with the events resulting in
Elizabeth's injury."    Brock v. Lewis, No.  7:95-CV-44-F  (E.D.N.C.
1995), slip op. at  15-16.
Plaintiffs appealed this decision to the United States Court
of Appeals for the Fourth Circuit, which affirmed the district
court's decision in an unpublished opinion.    In so doing, the
Court    noted the following:
Perhaps Elizabeth and her mother wanted the
case in federal court because, under North
Carolina law, contributory negligence
provides a complete defense to a suit
claiming negligence.    The shallowness of the
water at the spot where Elizabeth dove
presented a real likelihood of a finding of
contributory negligence on her part.    In
admiralty, however, comparative negligence
rather than contributory negligence applies.
Brock v. Lewis, No.  95-2302,  86 F.3d  1148,  1996 WL  276980  (4th
Cir.  1996)(unpublished), slip op. at  2, footnote  1  (citations
omitted), cert. denied,  ___ U.S.  ___,  136 L. Ed.  2d  377  (1996).
Having exhausted their attempts to be heard in the federal
courts, plaintiffs then turned their attention homeward and filed
a complaint in New Hanover County Superior Court on  29 January
1997, alleging negligence by Lucy and her parents.    That court's
order granting defendants' motion for summary judgment was filed




3 March  1998, and plaintiffs appeal to this Court from that
order.    We affirm.
To establish a valid claim of negligence, plaintiffs must
show that defendants owed them a duty, that defendants breached
this duty, and that damages were proximately caused by the
breach.    See Tise v. Yates Construction Co., Inc.,  345 N.C.  456,
460,  480 S.E.2d  677,  680  (1997).    If defendants, as the party
moving for summary judgment, "prov[e] that an essential element
of the opposing party's claim is nonexistent, or  .  .  . show[]
through discovery that the opposing party cannot produce evidence
to support an essential element of his claim," summary judgment
is appropriate.    Collingwood v. G.E. Real Estate Equities,  324
N.C.  63,  66,  376 S.E.2d  425,  427  (1989).    "While issues of
negligence and contributory negligence are rarely appropriate for
summary judgment, the trial court will grant summary judgment in
such matters where the evidence is uncontroverted that a party
failed to use ordinary care and that want of ordinary care was at
least one of the proximate causes of the injury."    Diorio v.
Penny,  103 N.C. App.  407,  408,  405 S.E.2d  789,  790  (1991)
(citations omitted), aff’d,  331 N.C.  726,  417 S.E.2d  457  (1992).
We need not engage in an extensive analysis of defendants'
duty to Elizabeth or any potential breach of that duty, even in
light of our Supreme Court's recent decision in Nelson v.
Freeland,  349 N.C.  615,  507 S.E.2d  882  (1998), to retroactively
abolish the common law distinctions between invitees and
licensees, because even if defendants were negligent, Elizabeth




was contributorily negligent as a matter of law.    "[T]he law
imposes upon a person the duty to exercise ordinary care to
protect himself from injury and to avoid a known danger; and
.  .  . where there is such knowledge and there is an opportunity
to avoid such a known danger, failure to take such opportunity is
contributory negligence."    Lenz v. Ridgewood Associates,  55 N.C.
App.  115,  122,  284 S.E.2d  702,  706-07  (1981), disc. review
denied,  305 N.C.  300,  290 S.E.2d  702  (1982).    Because she was
nearly fifteen years old, Elizabeth was capable of contributory
negligence.    See, e.g., Welch v. Jenkins,  271 N.C.  138,  144,  155
S.E.2d  763,  768  (1967)(“At  .  .  . age  [fourteen], there is a
rebuttable presumption that  [a minor] possessed the capacity of
an adult to protect himself and he is, therefore, presumptively
chargeable with the same standard of care for his own safety as
if he were an adult.”); Bell v. Page,  271 N.C.  396,  400,  156
S.E.2d  711,  715  (1967)(“[A] person between the ages of seven and
fourteen may not be held guilty of contributory negligence as a
matter of law.”)(emphasis added).
Elizabeth failed to use ordinary care before diving into the
water on the date in question.    She knew from her experience as a
trained diver that diving into water of an unknown depth was
dangerous, but did so by her own choosing and at her own risk.
There was a reasonable opportunity for her to avoid this danger
by jumping instead of diving into the water, and her decision to
dive without attempting to measure the water’s depth constitutes
contributory negligence.    See Lenz at  122-23,  284 S.E.2d at  707
(“[C]ontributory negligence per se may arise where a plaintiff




knowingly exposes himself to a known danger when he had a
reasonable choice or option to avoid that danger, or when a
plaintiff heedlessly or carelessly exposes himself to a danger or
risk of which he knew or should have known.”)(citations omitted).
Lucy's call to "come on" did not force Elizabeth to dive, and the
argument in plaintiffs' briefs that Elizabeth did so "pursuant to
[Lucy's] command" insults Elizabeth's considerable intelligence.
Here, just as was the case with an eighteen-year-old we deemed
contributorily negligent as a matter of law when he was injured
after making a shallow dive from a sliding board into a lake,
"[t]he danger of striking the bottom of the swimming area when
diving head first into shallow water was obvious to plaintiff."
Jenkins v. Lake Montonia Club,  125 N.C. App.  102,  107-08,  479
S.E.2d  259,  263  (1997).
Plaintiffs' own aquatics and diving expert, Dr. M. Alexander
Gabrielsen, testified in a deposition that the ultimate decision
to dive was made by Elizabeth.    He went on to state, "If you want
the thing  -- what caused this accident, it was the depth of the
water and nothing else."    Although Dr. Gabrielsen later attempted
to qualify his remarks by claiming that Lucy's presence was
"important," it is clear that Elizabeth's "want of ordinary care
was at least one of the proximate causes of the injury."    Diorio
at  408,  405 S.E.2d at  790.    As noted above, Elizabeth explained
her decision to Lucy after the dive by stating, "I thought I
could do it."    Regretfully, she could not, but that is through no
fault of defendants.
The demonstration of Elizabeth's contributory negligence




defeated the essential proximate cause element of plaintiffs'
claim.    As such, defendants were entitled to a grant of summary
judgment.    See Collingwood at  66,  376 S.E.2d at  427.
Affirmed.
Judges WALKER and TIMMONS-GOODSON concur.

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