Kane v. Landscape Structures, Inc.
309 Ga. App. 14, 709 S.E.2d 876, 2011 Fulton County D. Rep. 1167 (2011)
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Rule of Law:
A child of sufficient age and intelligence can be found, as a matter of law, to have assumed the risk of an open and obvious danger, such as falling from a height, thereby barring recovery for negligence against a manufacturer.
Facts:
- Landscape Structures, Inc. designed and manufactured playground equipment called the 'Infant Maze' for children between eighteen months and three years old.
- The structure had panels approximately 31 inches high and a roof that peaked at about seven feet.
- Nine-year-old Steven Kane visited a public park and observed older children, aged nine to twelve, climbing on top of the Infant Maze.
- Kane knew the equipment was intended for 'little kids,' that his mother would not approve of him climbing it, and that he had been previously warned about the dangers of climbing.
- Encouraged by the other children, Kane used horizontal handholds on a panel to climb.
- While standing on a one-inch-wide vertical panel and reaching for the roof, Kane's foot slipped.
- Kane fell onto another panel below, sustaining serious injuries.
Procedural Posture:
- The Kane family sued Landscape Structures, Inc. in a Georgia trial court for negligent design and failure to warn.
- Landscape Structures moved for summary judgment, arguing Steven Kane assumed the risk of his injuries.
- The trial court granted summary judgment in favor of Landscape Structures.
- The Kanes, as appellants, appealed the trial court's decision to the Georgia Court of Appeals, where Landscape Structures is the appellee.
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Issue:
Does a nine-year-old child assume the risk of injury as a matter of law when he attempts to climb playground equipment in a manner for which it was not intended, despite knowing the general danger of falling from a height?
Opinions:
Majority - Blackwell, Judge.
Yes. A nine-year-old child assumes the risk of injury as a matter of law when he voluntarily exposes himself to the open and obvious danger of falling from an elevated place. To establish assumption of the risk, a defendant must prove the plaintiff (1) had actual knowledge of the danger, (2) understood and appreciated the risks, and (3) voluntarily exposed himself to the danger. Georgia courts have consistently held for over 50 years that the danger of falling is so obvious that even a young child can be found to appreciate it as a matter of law. Steven Kane was a child of sufficient intelligence to appreciate this risk; he admitted knowing the structure was for toddlers and that his parents would disapprove of him climbing it. The fact that he did not think a fall was likely does not negate his appreciation of the possibility of a fall and resulting injury. Unlike cases involving intermittent dangers like traffic, the danger of gravity is constant and always present when climbing.
Dissenting - Barnes, Presiding Judge
No. Whether a child had the required subjective and particularized awareness of the specific risk of climbing this particular piece of equipment is a question of fact for a jury, not a matter of law. The doctrine of assumption of risk requires that the plaintiff has full, subjective appreciation of the specific danger confronted. The issue is not the general risk of falling, but the specific risk of climbing this piece of equipment, which appeared innocuous and was regularly and successfully climbed by other children. Because other children frequently climbed it without incident and Steven himself had previously attempted it without injury, it is not 'plain and palpable' that he subjectively understood the specific risk involved in this climb. This determination of a child's subjective knowledge is a question peculiarly suited for a jury.
Analysis:
This decision reinforces the strength of the assumption of risk defense in Georgia, particularly in cases involving minors and 'obvious' dangers like falling, fire, or water. It distinguishes between constant, inherent dangers (like gravity) and variable dangers (like traffic), making it more difficult for plaintiffs to argue they lacked subjective knowledge of a constant danger. The ruling empowers courts to grant summary judgment in such cases, preventing them from reaching a jury, and places a significant burden on plaintiffs to show a special circumstance that prevented a child of reasonable intelligence from appreciating an obvious risk.
