                         NO. COA13-601

                NORTH CAROLINA COURT OF APPEALS

                      Filed: 1 April 2014


JEFF ROLAN1; 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
  The parties’ briefs list “Matthew Baldwin” as the named party
in this case. Pursuant to the custom and practice of this Court,
however, we use the name first listed in the caption of the
order being appealed.
                                -2-
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.                                North Carolina
                                      Industrial Commission
                                      I.C. Nos. TA-20317–18, 20327–
                                      37, 20369–71, 20779.
N.C. DEPARTMENT OF AGRICULTURE AND
CONSUMER SERVICES,
     Defendant.


    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.


    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.
                                            -3-



               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
                                           -4-
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 sanitizers before the Fair opened.

Testimony and exhibits presented before the Commission indicate
                                -5-
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.”
                                     -6-
             [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.”
                                         -7-
    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       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. Specifically, the Commission stated that:

            5. . . . [T]hose responsible for conducting
            the 2004 . . . Fair exercised reasonable
            care to keep its premises in a reasonably
            safe condition for lawful visitors. Further,
            the evidence demonstrates that the . . .
            Fair was conducted well within the industry
            standards   at   that  time.   The   primary
            recommendations of all concerned groups and
                              -8-
         publications, i.e., hand washing or hand
         sanitizing stations, separation of food and
         beverages from contact areas, and signage
         advising that a health risk exists and that
         hand washing is recommended, were fulfilled
         at the . . . Fair[] in accordance with then-
         existing   nationwide  industry   standards,
         which did not require that handouts and
         signage include information regarding the
         potential severity of the health risk.
         Moreover, the practices in place at the
         . . . Fair were identical to or better than
         those that had been utilized at prior [state
         fairs in North Carolina], none of which had
         produced documented cases of E. coli[]
         infection resulting from human[-]to[-]animal
         contact.

         6.   In   the   absence    of   evidence   that
         [Defendant’s] employees knew or had reason
         to know that the animals in the [petting
         zoo] were actively shedding E. coli[] during
         the 2004 . . . Fair (as contrasted with
         their knowledge that ruminants have the
         potential to shed E. coli[]), the . . .
         Commission    concludes   that    [Defendant’s]
         employees were not negligent in failing to
         warn fair patrons of a hidden hazard. Given
         the    presence    of    pathogens    in    our
         environment, the inability to completely
         eliminate   enteric    pathogens   if   human[-
         to-]animal contact is going to be permitted,
         and the precautions they had in place to
         reduce and minimize the risk, [Defendant’s]
         employees were not negligent with respect to
         their duty to warn or their duty to exercise
         reasonable care to keep the premises safe
         for lawful visitors.

(Citations and internal quotation marks omitted; italics added).

In coming to that conclusion, the Commission focused on the fact

that — in 2004 — the danger of E. coli infection at state fairs
                                      -9-
was “still an emerging issue” throughout the country. According

to reports published in the months before the Fair, few states

had written guidelines on zoonotic disease or the connection

between zoonotic diseases and animal exhibits. With the goal of

reducing     the   risks    of   disease    transmission,     certain   reports

recommended the use of informational signage; hand sanitizer or

hand washing stations with running water, soap, and disposable

towels; human-to-animal contact supervision; regular removal of

animal   feces;    and     the   prevention   of    eating   and    drinking   in

human-to-animal-contact areas.2

       Given its conclusions, the Commission denied Plaintiffs’

claims for damages. Commissioner Bernadine S. Ballance dissented

from   the    Commission’s       decision   on     grounds   that   Defendant’s

pertinent employees — “all [d]octors of [v]eterinary [m]edicine”

— “knew or reasonably should have known that E. coli[] was a

hidden danger and posed a substantial risk of serious illness

and death [to the young children who visited the petting zoo]”




2
  One report noted that “the only way to eliminate the risk of
zoonotic transmissions is to completely prevent interaction
between animals and humans at animal exhibits.” Recognizing that
such an option “might not be feasible or desirable,” however,
the report suggested the above strategies for minimizing
exposure.
                                        -10-
and failed to adequately warn the Fair’s patrons of that danger.

Plaintiffs appealed the Decision and Order of the Commission.

                                Standard of Review

       “The   standard     of    review    for   an    appeal    from   the    . . .

Commission’s decision under the Tort Claims Act shall be for

errors of law only under the same terms and conditions as govern

appeals in ordinary civil actions, and the findings of fact of

the Commission shall be conclusive if there is any competent

evidence to support them.”              Simmons v. Columbus Cnty. Bd. of

Educ.,    171    N.C.    App.    725,     727,   615   S.E.2d     69,   72    (2005)

(citation       and   internal    quotation      marks   omitted).      “Moreover,

findings of fact which are left unchallenged by the parties on

appeal are presumed to be supported by competent evidence and

are,     thus[,]      conclusively      established      on     appeal.”     Kee   v.

Caromont Health, Inc., 209 N.C. App. 193, 195, 706 S.E.2d 781,

782–83 (2011) (citation and internal quotation marks omitted).

“The Commission is the sole judge of the credibility of the

witnesses and the weight to be given their testimony.” Anderson

v. Lincoln Constr. Co., 265 N.C. 431, 433–34, 144 S.E.2d 272,

274 (1965).

                                   Discussion
                                         -11-
      On appeal, Plaintiffs assert that the Commission’s decision

should     be    reversed     because    its    conclusions        of      law    are    not

supported by its findings of fact. More specifically, Plaintiffs

contend that: (1) the Commission’s findings of fact 32 and 33

are, in part, conclusions of law and, therefore, should not be

analyzed under our deferential competent evidence standard3; (2)

the Commission applied an incorrect standard of care, which “led

the    Commission        . . .    to     the        erroneous      conclusion           that

[Defendant]       was   not    negligent       in    this    case”;        and    (3)    the

Commission erred in concluding that Plaintiff’s injuries were

not   proximately       caused   by     Defendant’s      negligence          because     the

parties    had     already    stipulated       to    this    fact.      We   affirm      the

Commission’s Decision and Order.

      I. Findings of Fact 32 and 33

      In   pertinent     part,    findings      of    fact    32     and     33   read   as

follows:

                32. [T]he operators of the 2004 . . . Fair
                . . . exercised reasonable care in [their]
                respective duties to keep the [fairgrounds,
                including the petting zoo], in a safe
                condition   for    its   lawful   visitors.

3
   Plaintiffs do not dispute the validity of the Commission’s
other findings of fact. Therefore, those findings are presumed
to   be   supported by   competent  evidence  and  conclusively
established on appeal. Kee, 209 N.C. App. at 195, 706 S.E.2d at
782–83.
                      -12-
Regardless of whether the measures [taken]
were done in response to the [reports
published prior to the Fair], and regardless
of whether there was strict compliance with
all recommendations       [made therein], the
. . . Commission finds that the evidence of
record establishes that [Defendant] carried
out [its] respective duties with reasonable
care to minimize and hopefully eliminate the
risk that fair patrons who attended the
[petting zoo] would contract E. coli[]. The
signage   [Defendant]     used    and  the   hand
washing protocols [it] relied upon, in
conjunction    with    [its]    observation   and
monitoring of activities inside the petting
zoo, including constant removal of fecal
material by employees of the petting zoo,
were in keeping with the usual and customary
conduct and practices of other state fairs
in 2004 under similar circumstances. The
specific training that plaintiffs suggest
should have been given . . . had not been
developed or implemented by other state
fairs in 2004, when E. coli[] was an
emerging public health issue. The failure of
any of [Defendant’s] employees to give . . .
specific    zoonotic    disease    training,   as
opposed    to    . . .     general    discussions
regarding the need to protect the public
from the spread of disease from animals to
humans, did not . . . constitute a failure
to exercise reasonable care for the safety
of the fair patrons [in 2004]. The . . .
Commission finds that it was reasonable on
the part of [Defendant’s] employees to
believe that the practices that were in
place at the 2004 . . . Fair were sufficient
to provide adequate protection for [f]air
patrons against the transmission of zoonotic
diseases. Plaintiffs have failed to prove
that they contracted E. coli[] as a result
of failure on the part of [Defendant’s]
employees to exercise due care for their
safety.
                                 -13-


          33. With regard to [Defendant’s] duty to
          warn fair patrons of unsafe conditions, the
          . . .    Commission     finds     . . .    that
          [Defendant] exercised reasonable care to
          provide warnings at the [petting zoo] that
          contact with the animals posed a health
          risk. The . . . Commission finds that [the]
          signage used by [Defendant’s] employees in
          2004 was sufficient to warn petting zoo
          patrons of a possible health risk and
          sufficient   to    advise     them    of   what
          precautions     they       should      observe,
          particularly given the fact that none of the
          . . .   employees    knew    or    could   have
          determined in the exercise of due diligence
          that any of the animals in the petting zoo
          were actively shedding E. coli[] during the
          . . . Fair. The . . . Commission finds that
          a reasonable person exercising due care for
          the safety of fair patrons in 2004 was not
          required to provide handouts or signage
          describing the potential severity of the
          health risk, which had never surfaced before
          at the . . . Fair, given the precautions
          that were in place at the time to prevent
          the spread of zoonotic disease.

    On   appeal,   Plaintiffs   contend   that   these   “findings”   are

more properly labeled mixed findings of fact and conclusions of

law because they find facts and make legal determinations based

on those findings. Therefore, Plaintiffs assert, we must not

accord findings 32 and 33 “the same deference as true findings

of fact on appeal.” Defendant does not contest this point in its

brief, merely noting that mixed findings of fact and conclusions

of law are nonetheless reviewable by this Court and pointing out
                                     -14-
that    “the   factual    portion   of    these   mixed   [findings]”   should

still    be    reviewed    under    the    competent      evidence   standard.

(Emphasis added). We agree.

       With regard to mixed questions of law and fact, the factual

findings of the Commission are conclusive on appeal if supported

by any competent evidence. Davis v. Columbus Cnty. Schs., 175

N.C. App. 95, 100, 622 S.E.2d 671, 675 (2005). As with separate

findings of fact and conclusions of law, the factual elements of

a mixed finding must be supported by competent evidence, and the

legal elements must, in turn, be supported by the facts. See

Horn v. Sandhill Furniture Co., 245 N.C. 173, 177, 95 S.E.2d

521, 524 (1956) (reviewing the Commission’s mixed finding and

concluding that “[t]he specific facts found are insufficient to

sustain the conclusion that the injury resulting in death arose

out of and in the course of the employment”); see also Beach v.

McLean, 219 N.C. 521, 525, 14 S.E.2d 515, 518 (1941) (“If [a

finding of fact] is a mixed question of fact and law, it is

likewise conclusive, provided there is sufficient evidence to

sustain the element of fact involved.”).

       Therefore, findings of fact 32 and 33 are conclusive as to

their factual elements if supported by competent evidence and

reviewable de novo        as to their legal elements.           Here, though
                                         -15-
Plaintiffs have elected to remind us of the distinction between

a   finding    of    fact   and   a     conclusion     of   law,   they     fail    to

challenge either the factual or legal elements of findings 32

and 33 as not based on competent evidence or not supporting the

conclusions. Instead, they merely note in their second argument,

discussed infra, that the Commission committed reversible error

by employing an incorrect statement of the law. Therefore, we

need not review the specific elements of findings 32 and 33 or

engage in an analysis of whether those elements are “factual” or

“legal.”      See    generally    Helfrich       v.   Coca-Cola    Bottling        Co.

Consol.,   __       N.C.   App.   __,    __,    741   S.E.2d   408,   412    (2013)

(“Findings of fact which are left unchallenged by the parties on

appeal are presumed to be supported by competent evidence and

are, thus[,] conclusively established on appeal.”) (citations,

internal quotation marks, and brackets omitted); N.C.R. App. P.

28(a) (“Issues not presented and discussed in a party’s brief

are deemed abandoned.”). Plaintiffs must contest these findings

in order to take advantage of the relevant standards of review

and has not done so here. Accordingly, we proceed to Plaintiffs’

premises liability argument.

      II. Premises Liability

              1. Appellate Review
                                              -16-
      In their second argument on appeal, Plaintiffs contest the

validity of the Commission’s conclusion that Defendant did not

breach its duty of care on grounds that the conclusion is based

on an incorrect standard of care. Plaintiffs go on to argue that

Defendant        failed    to     act       with     due     care    under    the    correct

standard. In response, Defendant contends that Plaintiffs are

barred from        challenging        the standard of care                  applied by the

Commission because          they did not raise                 this issue       before the

Commission. We disagree.

      As a general rule, a party may not make one argument on an

issue at the trial level and then make a new and different

argument as to that same issue on appeal. Weil v. Herring, 207

N.C. 6, 10, 175 S.E. 836, 838 (1934) (“An examination of the

record discloses that the cause was not tried upon that theory,

and   the    law    does    not    permit         parties     to    swap    horses   between

courts      in   order     to   get     a    better        mount    [on    appeal].”).    The

rationale        behind    this   rule       is    twofold.        First,    principles   of

fairness to both parties do not permit one party to use the

appellate system to advance a new or different argument than it

employed at trial simply because that party did not properly

prepare or was unable to think of the argument below. See id.

Second, as required by the process of preserving an issue for
                                           -17-
appellate review, the contention argued on appeal must have been

raised, argued, and ruled on in the trial court. See Wood v.

Weldon,   160    N.C.    App.    697,      699,    586   S.E.2d       801,    803   (2003)

(citing   the    “swap    horses”          rule    and   the    rule    requiring      the

preservation of issues for appellate review for the same point),

disc.   review    denied,       358    N.C.       550,   600    S.E.2d       469    (2004).

Therefore, it is implicit within the rule that a party must have

actually been able to raise an argument before the trial court

in order for it to be barred as impermissible “horse swapping.”

See Weil, 207 N.C. at 10, 175 S.E. at 838; see also Wood, 160

N.C. App. at 699, 586 S.E.2d at 803.                       Accordingly, arguments

limited to alleged errors of law made for the first time in the

trial court’s written opinion cannot be deemed improper simply

because those arguments were never made before the trial court.

Cf. Carden v. Owle Constr., LLC, __ N.C. App. __, __, 720 S.E.2d

825, 827 (2012) (“A trial court’s conclusions of law are fully

reviewable on appeal.”) (citation, internal quotation marks, and

ellipsis omitted). That is to say, the appealing party cannot be

charged with impermissibly swapping horses when it never mounted

one in the first place.

    Here, as discussed above, Plaintiffs are not contesting a

statement   or    application         of    the    law   made    by    the    Commission
                                       -18-
during the hearing. Rather, Plaintiffs contest the Commission’s

articulation and application of the law                  in its Decision            and

Order. As it would be impossible for Plaintiffs to challenge the

legal    principle    articulated      by   the   Commission      before       it   was

actually    stated,      Plaintiffs      cannot   be    barred     by    the    “swap

horses” doctrine in this case. To hold otherwise would be to

require a party to anticipate a court’s opinion before it is

written,     and    we   decline    to      require    such    foresight        here.

Accordingly, Defendant’s preliminary argument is overruled, and

we proceed to Plaintiffs’ second argument on appeal.

            2. Standard of Care

    Plaintiffs’ second argument contains two elements. First,

Plaintiffs    contend     that   the     Commission     applied     an    incorrect

legal standard in reaching its conclusions of law on the duty of

care owed by Defendant to the Fair patrons. Second, Plaintiffs

contend that the Commission erred in concluding that Defendant

did not violate its duty of care. We are unpersuaded on both

counts.

    In order to prove a defendant’s negligence in a premises

liability case, the plaintiff must first show that the defendant

either     “(1)    negligently     created     the     condition    causing         the

injury, or (2) negligently failed to correct the condition after
                                          -19-
actual or constructive notice of its existence.” Roumillat v.

Simplistic Enters., Inc., 331 N.C. 57, 64, 414 S.E.2d 339, 342–

43     (1992).    “The       ultimate   issue      which     must   be    decided   in

evaluating the merits of a premises liability claim[, however,]

is . . . whether [the defendant] breached the duty to exercise

reasonable care in the maintenance of [its] premises for the

protection of lawful visitors.” Burnham v. S&L Sawmill, Inc., __

N.C.    App.     __,   __,    749   S.E.2d   75,    80     (citation     and   internal

quotation marks omitted), disc. review denied, __ N.C. __, 752

S.E.2d 474 (2013).

               Reasonable care requires that the landowner
               not unnecessarily expose a lawful visitor to
               danger and give warning of hidden hazards of
               which the landowner has express or implied
               knowledge. This duty includes an obligation
               to exercise reasonable care with regards to
               reasonably foreseeable injury by an animal.
               However, premises liability and failure to
               warn of hidden dangers are claims based on a
               true negligence standard which focuses . . .
               attention   upon  the   pertinent  issue  of
               whether the landowner acted as a reasonable
               person would under the circumstances.

Thomas v. Weddle, 167 N.C. App. 283, 290, 605 S.E.2d 244, 248–49

(2004)     (citations,         internal      quotation       marks,      and   certain

ellipses omitted). Reasonable care does not require “owners and

occupiers of land to undergo unwarranted burdens in maintaining

their premises.” Royal v. Armstrong, 136 N.C. App. 465, 469, 524
                                            -20-
S.E.2d 600, 602, disc. review denied, 351 N.C. 474, 543 S.E.2d

495 (2000).

                    A. Created Harm

     Plaintiffs         first      contend    that        the    Commission         erred    by

relying    solely       on   the    rule    that    landowners       “have      a    duty    to

exercise       reasonable       care   so    as     not    to    unnecessarily         expose

lawful visitors to danger and to warn them of hidden hazards of

which     the     landowner         has     express       or     implied        knowledge.”

Plaintiffs assert that the standard used by the Commission is

incorrect       because      Plaintiffs      were    not       required    to    show    that

Defendant knew or should have known about the danger of E. coli

where, as here, Defendant “created the condition causing [the]

injury.”    (Emphasis in original).                 Therefore, Plaintiffs assert

that we must remand to the Commission for proper application of

the correct standard of care. This argument is misplaced.

     Plaintiffs’ argument assumes that the Commission’s decision

turns     on     whether        Plaintiffs         adequately       established             that

Defendant knew or should have known about the risk of E. coli.

This is incorrect. Defendant admittedly knew there was some risk

of an E. coli infection by operating a petting zoo at the Fair.

Indeed, Dr. Woodlief testified during the hearing that she was

concerned       about     the      possibility       of    a    number     of       diseases,
                                               -21-
including       E.   coli.    The        fact     that       the    Commission       did     not

acknowledge      that    negligence           could     be    proven       by    showing    that

Defendant either created the harm or had express or implied

knowledge of the harm has no effect on the resolution of this

case. The relevant question is whether Defendant exercised due

care in October of 2004 to protect Fair patrons against E. coli

infection and, in doing so, adequately fulfilled its duty to

warn    those    patrons      of    the        risk     of    harm.    Accordingly,          the

omission described above cannot constitute reversible error, and

Plaintiffs’ argument is overruled. See Vaughn v. N.C. Dep’t of

Human Res., 37 N.C. App. 86, 90, 245 S.E.2d 892, 894 (1978) (“We

will not reverse the order of the Commission for harmless error.

To     warrant       reversal,          the     error        must     be        material    and

prejudicial.”) (citation omitted).

                     B. Reasonable Care Under the Circumstances

       Second, Plaintiffs contend that Defendant failed to meet

its duty of care because the petting zoo unreasonably exposed

lawful    visitors       to        “a     significantly             increased        risk     of

contracting a potentially deadly bacteria . . . .” In order to

satisfactorily        minimize          that    risk,        Plaintiffs         suggest     that

Defendant should have done all or some of the following: provide

better supervision, put up a fence between the children and the
                                                    -22-
animals,       require          parents       to    carry       or    hold       hands    with     small

children in order to reduce the likelihood of falling, refrain

from allowing or offering food in the zoo, and provide more

detailed information to Fair patrons about the specific danger

of     E.     coli     infection.         Plaintiffs             contend         that     Defendant’s

failure to take such precautions was a deviation from its duty

of     care      because           Defendant             (1)     was       “charged        with      the

responsibility             to    minimize          and     prevent         the    transmission        of

diseases       from        animals       to        humans       at    the    . . .        Fair,”     (2)

“conducted           its     own       assessments          of       the    risks        for     disease

transmission          at     the       . . .       [f]airs       in     2002      and     2004,”     (3)

“developed and issued its own recommendations toward reducing

that        risk,”     and       (4)     had       “the        latest      and     best        available

information and recommendations” regarding zoonotic diseases. We

do not find Plaintiffs’ position persuasive.

       As Defendant notes in its brief, the precautions taken by

Fair officials must be viewed in light of what a reasonable

person would have done in October of 2004 to protect against the

danger of E. coli. See Thomas, 167 N.C. App. at 290, 605 S.E.2d

at 248–49. In 2004, E. coli was considered to be an “emerging

public health issue.” Only one state had legislation addressing

the disease in the context of petting zoos, and “there were no
                                          -23-
federal    laws    or    regulations       in    2004    prohibiting       petting    zoo

exhibits or preventing people from intermingling directly with

animals at petting zoo exhibits.” No evidence was presented at

the hearing that an E. coli outbreak had occurred at the Fair

prior to 2004, and the petting zoo had been an exhibit at the

Fair for the past three years                   —   in 2001, 2002, and 2003             —

without an illness-related incident.

       In addition, a doctor hired in 2005 by the International

Association of Fairs and Expositions4 to train fair officials to

prepare for the danger of E. coli in human-to-animal contact

settings     testified          that   “most        fairs     allowed       people     to

intermingle       with    animals,        despite       the   risk    of    E.    coli[]

transmission.” Having visited fifteen to twenty fairs each year,

the doctor observed that signs used by other fairs in 2004 did

not list “specific zoonotic factors or describ[e] the specific

zoonotic    risk,        or    severity     of      risk.”    Rather,       the     signs

“primarily focused on suggesting that patrons wash their hands.”

Regarding     enteric         pathogens    like     E.    coli,      the   doctor    had

previously commented that:

            We   do   not   live   in    a   pathogen-free
            environment. . . .   [T]here   is   no   known
            process or system to completely eliminate

4
    The Fair is associated with this organization.
                                        -24-
           the risk associated with enteric pathogens.
           Pathogens are part of our world[,] and we
           must continue to manage our environment such
           that risk is reduced and consumers are
           protected as effectively as possible.

The doctor testified that, even by August of 2011, he did not

see fairs listing specific zoonotic risks on signs.

      Despite   the     inherent      difficulty    in    eliminating   the   risk

that comes from enteric pathogens, officials at the 2004 Fair

participated in a “pre-fair risk assessment.” This assessment

was designed to “identify and correct any deficiencies prior to

the   opening   of     the   Fair.”    According    to    the   Commission,   the

“concerns raised in the . . . [pre-fair risk assessment report]

regarding signage and hand washing stations were adequately and

appropriately addressed prior to the opening of the 2004 . . .

Fair.”    In    addressing         those    concerns,       officials    erected

additional signage and hand sanitizing stations at and near the

petting zoo. The signs indicated that individuals visiting the

zoo   should    wash    their   hands      before   and    after   touching   the

animals. Though the signs did not specifically mention E. coli,

this omission was not atypical for fairs at that time.

      While it was certainly possible for Defendant to take the

additional precautions suggested by Plaintiffs, we agree with

the Commission’s conclusion that Defendant did not fail to act
                                       -25-
with    due    care    in   October   of   2004    to   minimize   the    risk   of

exposure to E. coli. Sources cited by the Commission note that

it is impossible to eliminate the risk of enteric pathogens,

like    E.     coli,   in    human-to-animal       contact     settings    without

eliminating petting zoos altogether. While sparing the children

and animals from this “free for all” would have been the safer

option by all accounts, Defendant’s decision not to do so was

not a breach of its duty of care. Petting zoos were lawful in

2004,    and     the    Commission’s       findings     make   clear     that    the

precautions taken by Defendant were well within the range of

acceptable care for such zoos.

       Our premises liability law does not require landowners to

eliminate the risk of harm to lawful visitors on their property

or undergo unwarranted burdens in maintaining their premises. We

conclude that the Commission correctly determined that Defendant

took    reasonable      steps   in    2004    to   appropriately       reduce    the

inherent risks         of operating a        petting zoo. While such steps

might not be sufficient to do so today, especially given the

2004 outbreak, Plaintiffs’ suggested precautions go beyond the

reasonable standard of care required of a landowner in October

of 2004. To hold otherwise would be to engage in the type of

Monday-morning quarterbacking that the law of negligence should
                                  -26-
avoid, and we decline to do so here. Accordingly, Plaintiffs’

second argument is overruled.




            3. Proximate Cause

      Lastly,   Plaintiffs   argue    that   the   Commission   erred   in

finding of fact 32 by stating that Plaintiffs’ injuries were not

proximately caused by Defendant’s negligence, in contravention

to    the   parties’   stipulations    and   the   undisputed   evidence

presented at the hearing. This argument is based on a misreading

of finding of fact 32.

      As discussed above, finding of fact 32 states in pertinent

part that “Plaintiffs have failed to prove that they contracted

E. coli[] as a result of failure on the part of [Defendant’s]

employees to exercise due care for their safety.” This finding

is not relevant to the issue of proximate cause. Rather, it

addresses whether Defendant acted with “due care.” Plaintiffs’

interpretation of the Commission’s use of the words “as a result

of”   transmogrifies   the   Commission’s    statement   into   something

other than what it is. Accordingly, Plaintiffs’ third argument

is overruled, and the Commission’s Decision and Order is

      AFFIRMED.
                         -27-
Judges ERVIN and DILLON concur.
