Kane v. Landscape Structures, Inc.

709 S.E.2d 876, 309 Ga. App. 14, 2011 Fulton County D. Rep. 1167, 2011 Ga. App. LEXIS 321

Opinions

Blackwell, Judge.

Steven Kane, who was nine years of age at the time, was injured when he fell from playground equipment that he was attempting to climb in a Gwinnett County park. Like most children nine years of age, Steven appreciated the obvious risk of falling that is associated with climbing to high places, and he voluntarily chose to assume the risk. Consequently, we affirm the grant of summary judgment to the manufacturer of the playground equipment, Landscape Structures, Inc.

Landscape Structures designed the playground equipment from which Steven fell — known as the “Infant Maze” — for children between the ages of approximately eighteen months and three years. The structure consists of several vertical panels, each of which is approximately 31 inches in height, has cutouts of various shapes and sizes for the entertainment of toddlers, and has handholds to help toddlers maintain their balance as they play. The structure also features a pitched roof — which is, at its peak, approximately seven feet in height — that is mounted atop four posts and covers some of the panels. This photograph depicts the structure as it appeared in Mountain Park on the day that Steven fell while standing atop one of the panels:

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Steven and his family visited Mountain Park on March 30, 2006. While his parents and sister attended a softball game, Steven and his brother, who was 13 years of age at the time, went to a nearby playground, which had play equipment for children of all ages, including the “Infant Maze” for toddlers and swings, slides, and other structures for older children. Steven had visited the playground on many occasions, and his father said that Steven and his brother could visit the playground so long as they remained within his sight, although the father acknowledged that he “really never paid attention to [the children] once they were in the playground.”

After playing a game of tag with some older children, Steven noticed that several of them had climbed atop the “Infant Maze.” According to his brother, children between the ages of nine and twelve years often climbed the structure, and his parents testified that they too had seen other children climb atop the “Infant Maze” and that, on the day Steven fell, they saw some children sitting atop the structure and jumping from it. Steven denied that he had tried to climb the structure before the day he fell, but his brother said that Steven had tried unsuccessfully to climb it on two prior occasions.

In any event, Steven knew that the “Infant Maze” was not designed for children of his age, admitting that it obviously is intended for “little kids.” Steven also knew that his mother would “probably not” approve of him climbing it. Indeed, his mother had warned him before about the danger associated with climbing various things, including structures that are not as high as the roof of the “Infant Maze.” And his parents testified that, as Steven suspected, they would not allow their children to climb atop the “Infant Maze.” Even their own expert witness in this case admitted that Steven “had some awareness of the fact that [climbing to the roof of the “Infant Maze”] was something that wasn’t intended by the manufacturer.”

Encouraged by the older children atop the structure, Steven attempted to climb to its roof. Steven acknowledged that it is “fair to say” that the roof of the structure is not something onto which one ought to climb, but he explained that the “Infant Maze” did not bear any warnings about the danger of climbing it, that “everyone else was climbing on it,” and that he “wasn’t really thinking because [he was] a kid.” The older children told him to use the horizontal handholds to climb atop a panel, and he did so. He then was able to stand upright atop the panel — which is approximately one inch in width — and while standing with his left foot on the panel, he swung his right foot upward, toward the roof, and simultaneously reached with his right hand toward the older children atop the roof, so that they could pull him up. Steven says that he did not think at the time that he was likely to fall as he attempted to climb from the panel onto the roof, but his left foot slipped, and he fell onto a panel below. As a result, Steven sustained serious injuries.

The Kanes filed a lawsuit against Landscape Structures and others, seeking to recover damages for the losses that the family sustained as a result of Steven’s fall. The Kanes asserted claims against Landscape Structures for negligent design of the “Infant Maze” and for failure to warn of the dangers associated with climbing it. Following discovery, Landscape Structures moved for summary judgment, arguing, among other things, that Steven assumed the risk of falling from the structure when he attempted to climb it. The trial court held a hearing on the motion and ultimately granted summary judgment to Landscape Structures. Based on the undisputed facts in the record, the trial court did not err in doing so.

When a motion for summary judgment is premised on the existence of an affirmative defense — such as assumption of the risk — the defendant must come forward with proof sufficient to establish each element of the affirmative defense. Fedeli v. UAP/Ga. Ag. Chem., 237 Ga. App. 337, 337 (514 SE2d 684) (1999). If the defendant does so, the plaintiff then must come forward with some evidence that shows a genuine, disputed issue of fact as to some element of the affirmative defense. Id. See also Lau’s Corp. v. Haskins, 261 Ga. 491, 491 (405 SE2d 474) (1991). “[I]f the plaintiff is unable to meet this burden of production, the defendant is entitled to summary judgment as a matter of law.” Fedeli, 237 Ga. App. at 337 (citation and punctuation omitted). Although assumption of the risk often presents a question for the jury, the issue should be decided by the court as a matter of law “where the evidence shows clearly and palpably that the jury could reasonably draw but one conclusion.” Tennison v. Lowndes-Echols Assn. &c., 209 Ga. App. 343, 344 (433 SE2d 344) (1993).

To establish that Steven assumed the risk of falling from the “Infant Maze,” Landscape Structures was required to come forward with evidence establishing that “(1) [Steven] had some actual knowledge of the danger; (2) he understood and appreciated the risks associated with the danger; and (3) he voluntarily exposed himself to the danger.” Sayed v. Azizullah, 238 Ga. App. 642, 644 (519 SE2d 732) (1999). The specific danger of which a plaintiff must be actually aware for purposes of assumption of the risk is “the specific, particular risk of harm associated with the activity or condition that proximately causes injury,” Sones v. Real Estate Dev. Group, 270 Ga. App. 507, 509 (1) (606 SE2d 687) (2004), which, in this case, is the danger of falling from an elevated place onto some object below. The Kanes contend on appeal that the evidence does not show that Steven had actual knowledge of, and appreciated, the danger of falling from the “Infant Maze” onto a panel beneath him, and the dissent agrees, concluding that, while Steven may have understood the general risk of falling, the evidence is less than “plain and palpable” that he had a particularized and subjective awareness of the risk involved in climbing the structure, particularly given its “seemingly innocuous” appearance and that he had not observed any other children fall from the structure. In other words, the Kanes assert that the evidence is insufficient to prove that Steven knew that standing atop a narrow, vertical panel on one foot while trying to climb onto the roof of the playground structure several feet above — a roof that, as Steven admitted, is not meant for climbing — involves a risk of falling onto a visible panel beneath the roof. In the light of the undisputed evidence in the record, the relevant law, and the dictates of common sense, we find that the trial court properly rejected these contentions and awarded summary judgment to Landscape Structures.

Although the law does not expect children always to appreciate dangers to the same extent as adults, the Georgia courts have recognized that children as old as Steven are quite capable of appreciating certain obvious dangers. See, e.g., Abee v. Stone Mountain Mem. Assn., 252 Ga. 465, 465 (314 SE2d 444) (1984); O’Neal v. Sikes, 271 Ga. App. 391, 392 (609 SE2d 734) (2005); Spooner v. City of Camilla, 256 Ga. App. 179, 182 (2) (a) (568 SE2d 109) (2002); Stewart v. Harvard, 239 Ga. App. 388, 397 (4) (b) (520 SE2d 752) (1999); Riley v. Brasunas, 210 Ga. App. 865, 867 (1) (438 SE2d 113) (1993). And for more than 50 years, the Georgia courts consistently have held that the danger associated with climbing, or jumping from, an elevated place is so obvious that a young child can be found as a matter of law to sufficiently appreciate the danger,¹ at least in the absence of evidence of a special circumstance — whether a special circumstance of the child or the place from which the child falls — that renders the child unable to appreciate the danger. As this Court explained in 1956:

No danger is more commonly realized or risk appreciated, even by children, than that of falling; consciousness of the force of gravity results almost from animal instinct. Certainly a normal child nearly [seven] years of age — indeed any child old enough to be allowed at large — knows that if it steps or slips from a tree, a fence, or other elevated structure, it will fall to the ground and be hurt. It may be that some children, while realizing the danger, will disregard it out of a spirit of bravado, or because, to use the language of the Restatement of Torts, § 339, clause (c), of their “immature recklessness,” but [a defendánt] is not to be visited with responsibility for accidents due to this trait of children of the more venturesome type.

Augusta Amusements v. Powell, 93 Ga. App. 752, 757 (92 SE2d 720) (1956) (punctuation omitted). See also O’Neal, 271 Ga. App. at 392 (concluding that nine-year-old child assumed the risk of falling from a tree, which the child climbed to use a rope swing after watching other children do the same); Nunn v. Page, 265 Ga. App. 484, 485 (1) (594 SE2d 701) (2004) (concluding that four-year-old child assumed the risk of falling from a trampoline while playing a game of chase on the trampoline); Riley, 210 Ga. App. at 867 (1) (concluding that seven-year-old assumed the risk of falling when he participated in a game that involved jumping from a mini-trampoline to a chin bar attached to a door frame).

We have no reason in this case to doubt that Steven is a child of sufficient intelligence to appreciate the obvious danger of falling. He admitted that his mother had warned him before about the dangers associated with climbing things and that he did not think his mother would have wanted him to climb the “Infant Maze.” And nothing about the “Infant Maze” would have led Steven to conclude that he could not fall from the structure or that, if he did, he could not be hurt. He testified that he knew the structure was not intended for climbing and that it was designed, instead, for younger children.² And the panel onto which he fell was open and visible, and its hardness would have been obvious to a child that had climbed atop such a panel,³ which the Kanes do not dispute. Although he said that he did not think he would fall from the “Infant Maze,” this testimony merely reflects his assessment that a fall was unlikely, not a denial of the self-evident truth that a fall from a high place — and the injuries that might be sustained as a result — are possible.⁴ Accordingly, we must conclude that Steven sufficiently appreciated the danger that he might fall from the “Infant Maze” and be injured and, consequently, that summary judgment for Landscape Structures was appropriate.

In concluding otherwise, the dissent relies on our decision in Atlanta Affordable Housing Fund Ltd. Partnership v. Brown, 253 Ga. App. 286 (558 SE2d 827) (2002), but that case is quite distinguishable. In Brown, we affirmed a jury verdict in favor of a nine-year-old child, who was struck by a truck as she ran across a driveway. We rejected the contention in that case that the trial court had erred when it refused to instruct the jury on assumption of the risk, explaining:

While the defendants proved that the nine-year-old plaintiff was generally aware of the risk of crossing streets or driveways and being hit by moving vehicles and the need to stop and look, there existed no evidence that the child saw or was aware of the approach of the specific truck that hit her when she darted out across the driveway, because a van parked in a no-parking area of the [apartment] complex blocked her view of the approaching truck, and she had seen her friend just ahead of her safely race across the driveway without incident. Plaintiff knew generally that there was a danger in crossing without looking where vehicles drove. However, the presence or absence of moving vehicles in the driveway was a constantly changing situation so that specific knowledge of the condition could not pre-exist without specific subjective observation at any given time to determine the presence or absence of danger. Thus, the child had no subjective knowledge of the danger from the approaching truck that hit her; therefore, the first element of the defense of assumption of the risk was not proved.

253 Ga. App. at 287-288 (1) (emphasis supplied). In other words, although the child in Brown appreciated that running into a street or driveway sometimes poses a danger of being struck by traffic — when, and only when, there is traffic operating upon the street or driveway — the driveway on which the child was struck did not always have traffic, and the child was not aware that traffic was moving upon it when she was struck.⁵ Gravity, unlike traffic on a quiet street or driveway, is always present, and so, unlike a quiet street or driveway that only sometimes poses á danger to pedestrians of being struck by traffic, climbing something always poses a danger of falling from it.

Because the record in this case shows as a matter of law that Steven assumed the risk associated with climbing the “Infant Maze,” we affirm the entry of summary judgment for Landscape Structures.⁶

Judgment affirmed.

Smith, P. J., Andrews, Mikell and Dillard, JJ., concur. Barnes, P. J., and Adams, J., dissent.

Footnotes

1

A child also can be held as a matter of law to have knowledge of the dangers associated with fire and bodies of water, such as swimming pools and lakes. See Riley, 210 Ga. App. at 867 (1). See also Spooner, 256 Ga. App. at 182 (2); Stewart, 239 Ga. App. at 396-397 (4) (b).

2

The dissent refers to the seemingly innocuous nature of the equipment. Playground equipment, of course, need not look like a deathtrap to suggest to a nine-year-old child that climbing it is a bad idea. And Steven admitted that he knew that the “Infant Maze” was not meant for climbing.

3

The record is not clear about whether Steven fell onto the panel on which he had been standing or another, adjacent panel.

4

The fact that Steven had seen older children successfully ascend the “Infant Maze” is no reason to doubt that he appreciated the danger involved. That a child sees other children swim in a lake without drowning, play around fire without being burned, and climb to high places without falling does not make the obvious risk involved in such activities any less apparent, even if it causes the child to think that his probability of suffering injury as a result of such activities is less than it actually is. But assumption of the risk does not require an accurate assessment of the precise probability that a danger will be realized and an injury sustained, only an appreciation that the danger exists.

5

About the dissent’s accusation that we would have children cross streets without stopping to look both ways, we simply note that it brings to mind the words of Justice Jackson: “The technique of the dissenter often is to exaggerate the holding of the Court beyond the meaning of the majority and then to blast away at the excess. So the poor lawyer with a similar case does not know whether the majority opinion meant what it seemed to say or what the minority said it meant.” Robert H. Jackson, The Supreme Court in the American System of Government, pp. 18-19 (1995).

6

Given that assumption of risk is an absolute defense to liability under any theory of negligence, we need not consider the Kanes’ claims that Landscape Structures negligently designed the “Infant Maze” or that it failed to properly warn of the dangers associated with the use of the “Infant Maze.” See Sones, 270 Ga. App. at 509 (2).