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Appeal Granted in Blowing Rock Fall Suit PDF Print
Written by Steve Frank   
Monday, 18 July 2011 05:42

An appeal has been granted and a new trial ordered in connection with a 2007 lawsuit against the town of Blowing Rock, the North Carolina Court of Appeals ordering a new trial in the case of Chelsea Amanda Brooke Cobb, who was 12 at the time. The decision, handed down filed July 5th, says that on August 9th 2004, the girl and her friend went to the overlook platform at Glen Burney Falls,

but instead of staying on the designated trail, they exited the left side of the platform and attempted to cross New Years Creek just above Glen Burney Falls. Chelsea Cobb slipped in the creek, according to the suit, began sliding downstream, and went over the waterfall, suffering serious injuries. The original suit found the town not liable for the injuries, the trial court entered judgment dismissing Plaintiffs' complaint with prejudice, but plaintiffs, including the girl’s father, filed a 14-page appeal, showing alleged errors in law and in the procedure, seeking to have the case reheard.  
On 14 April 2009, Plaintiffs filed written notice of appeal from the trial court's judgment and the denial of their motion for a new trial.
On appeal, Plaintiffs contend the trial court committed three errors pertaining to the jury instructions: (1) denying their requested jury instruction on a landowner's duty of care; (2) instructing the jury on a landowner's duty of care without addressing the import of Ms. Cobb's age; and (3) failing to provide the correct instructions in response to the jury's question regarding the consideration of age and the landowner's duty of care, thus misleading the jury and altering the outcome of the case. Plaintiffs also argue the trial court erred in denying their motion for a new trial at that time.

Judge Robert Hunter wrote for the court, “This case requires us to determine whether, in a negligence case, the jury must be instructed to consider the known or reasonably foreseeable characteristics of lawful visitors when the plaintiff, who is a lawful visitor, is injured by a natural condition on the defendant's property. We hold the failure to give such an instruction is error. Therefore, we award Plaintiffs a new trial.”

 

 

  
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