A North Carolina state appeals court has affirmed a summary judgment ruling for a local school board in a case where it was sued by the family of a 6-year-old boy, who fell through the space between the bleachers and suffered a severe head injury.
In ruling for the County Board of Education, the court found that plaintiff Betty Gholston, who sued on her own behalf and as guardian for Tyson Davis, failed to show that a reasonable board would have acted differently with respect to bleachers for a high school athletic field.
The incident occurred on October 20, 2006. Davis, along with his father, was attending a football game at Seventy-First High School in Fayetteville, North Carolina. Together, they sat near the top of the school’s aluminum bleachers, which were damp with condensation. When they walked down the bleachers, Davis slipped and fell through the 18-inch to 24-inch gap between the bleacher seat and the floorboard. The boy fell approximately 10 feet and struck his head on the concrete, fracturing his skull. He underwent surgery to have permanent metal plates and screws inserted into his head.
Almost three years later, the boy and his family sued, alleging that the Board breached its duty to ensure that the bleachers and its premises were reasonably safe for all invitees by failing to cover the openings between the seats of the bleachers and by failing to take any other measures to protect invitees from the danger presented by the openings. They further alleged that the Board breached its duty to warn of the risk and danger associated with the bleachers.
The defendant moved to dismiss the claim in May of 2010. Among its arguments was an affidavit from an engineer, which attested that the bleacher seat-boards and floorboards met the Building Code requirements and standards at the time they were originally constructed and installed, and met the standards when they were modified in 1985 to replace the wooden seat-boards and footboards with aluminum seat-boards and footboards. Further, at the time Tyson fell in 2006, “the bleachers were compliant with the appropriate North Carolina Building Code given the date(s) of installation and modification.”
Additionally, Mickey Stoker, the school’s athletic director in 2006, submitted an affidavit stating that he inspected the bleachers twice a year for safety and maintenance. According to Stoker, the bleachers were in a safe condition and did not require any repairs at the time of the accident. Furthermore, Stoker had been the athletic director for six years, and during this period, there had never been any problems with the bleachers and he was unaware of anyone falling through the bleachers and injuring themselves prior to the date of the accident.
The plaintiff’s response addressed none of the defendant’s arguments.
Not surprisingly, the trial court granted summary judgment. The plaintiff appealed.
The appeals court noted that in premises liability cases, Martishius v. Carolco Studios, Inc., 355 N.C. 465, 473, 562 S.E.2d 887, 892 (2002) is applicable. In its opinion, the state’s Supreme Court wrote that in a premises liability case, “actionable negligence occurs when a defendant owing a duty fails to exercise the degree of care that a reasonable and prudent person would exercise under similar conditions, or where such a defendant of ordinary prudence would have foreseen that the plaintiff’s injury was probable under the circumstances.”
Under this standard, a premises’ owner “‘must use the care a reasonable man similarly situated would use to keep his premises in a condition safe for the foreseeable use by a lawful visitor — but the standard varies from one type of establishment to another because different types of businesses and different types of activities involve different risks to the lawful visitor and require different conditions and surroundings for their normal and proper conduct.’” Id. at 474, 562 S.E.2d at 893 (quoting Hedrick v. Tigniere, 267 N.C. 62, 67, 147 S.E.2d 550, 554 (1966)).
“The question presented by this case is, therefore, whether the Board exercised the care that a reasonable school board would have exercised with respect to bleachers at an athletic field under similar circumstances. See id. at 475, 562 S.E.2d at 893-94 (holding that ‘defendant landowner had a duty to exercise such reasonable care as a landowning proprietor, running a motion-picture studio while maintaining a significant degree of control over the daily operations of its licensees, would exercise under the circumstances’).”
The court noted that the Board met its burden.
“Even though the Board’s evidence of compliance with the Building Code does not conclusively establish due care, that evidence, when combined with the Board’s evidence of a lack of notice of any prior problems with its bleachers, was sufficient to shift the burden of summary judgment to the plaintiff,” wrote the court.
“For plaintiff to meet her burden, she was required to come forward with evidence suggesting that a reasonable school board would have acted differently with respect to bleachers for a high school athletic field. See McLaurin v. East Jordan Iron Works, Inc., 666 F. Supp. 2d 590, 600 (E.D.N.C. 2009).”
Among the plaintiff’s other legal shortcomings was the fact that she presented no evidence that other schools or boards of education “did anything differently than the Board here.” See Lorinovich v. K Mart Corp., 134 N.C. App. 158, 162, 516 S.E.2d 643, 646 (1999) “Further, plaintiff has made no attempt to counter the Board’s evidence of no notice of any problem — she has pointed to no evidence of any similar occurrence with the Board’s bleachers or with any other school’s bleachers.” See Williams v. Walnut Creek Amphitheater P’ship, 121 N.C. App. 649, 652, 468 S.E.2d 501, 503 (1996).
Tyson Davis v. Cumberland County Board of Education; Ct. App. N.C.; NO. COA10-1559, 2011 N.C. App. LEXIS 2589; 12/20/11.
Attorneys of Record: (for plaintiffs-appellants) Shanahan Law Group, PLLC, by Kieran J. Shanahan and Melissa L. Pulliam. (for defendant-appellee) McAngus, Goudelock & Courie, PLLC, by Mary M. Webb and Webster G. Harrison.
