Divided Court of Appeals Applies Assumption of Risk to Nine-Year-Old


On March 30, 2011, a divided Georgia Court of Appeals upheld the trial court’s grant of summary judgment to a playground equipment design company in a suit filed on behalf of a 9-year-old boy who sustained serious injuries when he fell off the “Infant Maze” in a Gwinnett County park.

Case Summary

The majority of the court believed that the young man, Steven Kane, “appreciated the obvious risk of falling that is associated with climbing to high places and voluntarily assumed that risk as he admitted he knew the dangers associated with climbing things, he did not think his mother would have wanted him to climb the Infant Maze, he knew that the structure was for younger children and not intended for climbing, the hardness of the panel onto which he fell was obvious to a child who had recently climbed atop it, and, while he testified that he did not think a fall was likely, he did not deny the truth that a fall and injuries were possible.”

Defendant Landscape Structures, Inc. designed the playground equipment from which Steven fell for children between the ages of approximately eighteen months and three years. The Infant Maze was located at Mountain Park, and Steven and his parents, sister and 13-year-old brother were attending a softball game when Steven and his brother visited the playground. Steven and his brother testified that children between the ages of nine and twelve years often climbed on top of the Infant Maze and, on the day of his injury, several children were sitting atop the structure and jumping off of it. Steven’s brother testified 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 and was “for little kids.” He also said that his mother would “probably not” approve of him climbing it. In fact his mother had warned him about the danger associated with climbing various things, including structures that are not as high as the roof of the Infant Maze. Steven’s parents testified that they would not have allowed their children to climb atop the Infant Maze if they had known that they were doing so. The expert witness who testified on behalf of Steven also 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.”

The majority of the Court found that Steven had assumed the risk of falling from the Infant Maze and that Landscape Structures had met its burden of showing 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. The Court believed Steven was aware of the specific particular risk of harm associated with the activity that proximately caused his injury, a requirement for showing assumption of risk.

Although the law does not expect children always to appreciate dangers to the same extent as adults, Georgia courts have recognized that children as old as Steven are quite capable of appreciating certain obvious dangers. For more than fifty 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, at least in the absence of evidence of a special circumstance that renders the child unable to appreciate the danger.

Two Judges dissented from this opinion, Judge Barnes and Judge Adams, relying upon an earlier decision of the Court of Appeals in which the Court affirmed a jury verdict in favor of a nine-year-child who was struck by a truck as she crossed a driveway. In that case, at trial, the court had refused to charge the jury on assumption of risk. The majority, however, found that this earlier opinion was distinguishable because the child in the prior case appreciated that running into a street or driveway sometimes poses a danger of being struck by traffic when, and only when, there is a traffic operating upon the street or driveway and the child was not aware that traffic was moving upon it when she was struck. According to the majority, gravity, unlike traffic on a quiet street or driveway, is always present, and so, unlike a quiet street or driveway that only sometimes poses a danger to pedestrians of being struck by traffic, climbing something always poses a danger of falling from it.