Davis v. Cumberland County Board of Education. (Lawyers Weekly No. 11-07-1277, 14 pp.) (Martha A. Geer, J.) Appealed from Cumberland County Superior Court. (E. Lynn Johnson, J.) N.C. App. Click here for the full-text opinion.
Holding: Because the plaintiff-guardian only presented evidence of the child’s fall and his injuries and did not present any admissible evidence that a reasonable school board would have, under the circumstances, done anything differently than the defendant-board did, summary judgment was properly granted to the board.
On Oct. 20, 2006, the child attended a football game with his father at a high school. He sat with his father near the top of the school’s aluminum bleachers. The bleachers were damp with condensation, and the child, while walking down them, slipped and fell through the 18-inch to 24-inch gap between the bleacher seat and the floorboard. The child 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.
The child’s guardian filed suit against the board on Oct. 7, 2009, 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 or to take any other measures to protect invitees from the danger presented by the openings. Plaintiff further alleged that the board breached its duty to warn of the risk and danger associated with the bleachers.
Defendant denied plaintiff’s claim and asserted the defenses of contributory negligence and sovereign immunity. After conducting discovery, defendant moved for summary judgment on May 28, 2010. The board presented an affidavit from an engineer attesting that the bleacher seatboards and floorboards met building code requirements and standards at the time they were originally constructed and installed and when they were modified in 1985 to replace the wooden seatboards and footboards with aluminum seatboards and footboards. Further, at the time the child 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. Mr. Stoker had been the athletic director for six years and said there had never been any problems with the bleachers.
Plaintiff submitted the affidavit of the child’s father, Tyrone Davis. Mr. Davis described the bleachers, what occurred on Oct. 20, 2006, how his son came to fall to the concrete under the bleachers, and the fact that a number of children of his son’s age were present in the bleachers.
The trial court granted summary judgment for the board on June 30, 2010. Plaintiff timely appealed to this court.
The question presented by this case is 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. In support of its motion for summary judgment, the board presented evidence that its bleachers complied with the Building Code and that its athletic director was unaware of anyone having ever fallen through the bleachers or of any other problems with the bleachers. Consequently, the fact that the bleachers complied with the Building Code was evidence that the board kept the bleachers in a reasonably safe condition.
Even though the board’s evidence of compliance with the Building Code does not conclusively establish due care, that evidence, when combined with the evidence of a lack of notice of any prior problems with its bleachers, was sufficient to shift the burden on summary judgment to plaintiff. 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.
Plaintiff argues on appeal that the board should either have warned of the gap in the bleachers or restricted the use of the bleachers based upon age or size. Although plaintiff includes no cite to the record regarding her contention that the board was required to warn of the gap or restrict the use of its bleachers, she relies upon the board’s interrogatory answers in support of the contention that the board was required to install riser plates to minimize the gap.
Plaintiff’s interrogatory asked the board to describe all actions “that were taken in response to the accident.” The board objected that this interrogatory called for evidence of a subsequent remedial measure contrary to N.C. R. Evid. 407 but nonetheless responded. Plaintiff also cites to a table setting out the changes made by the board to bleachers following the accident. Plaintiff makes no attempt on appeal to address the admissibility of this evidence under Rule 407. The board’s interrogatory answer falls squarely within Rule 407— plaintiff is relying upon the subsequent measures to prove the board’s negligence. Since the evidence is inadmissible, it cannot support reversal of the summary judgment order.
Plaintiff points to no other evidence regarding what a reasonable school board would have done under the circumstances. She has presented no expert affidavits or other evidence regarding whether the Building Code provided inadequate protection or whether a reasonable owner in the board’s circumstances would have known that it needed to take further steps to make the bleachers safe. 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.
The affidavit of the child’s father, Tyrone Davis, is not sufficient to defeat summary judgment. The fact that the child slipped through a gap and was severely injured does not, without more, provide evidence of negligence.
Because plaintiff presented only evidence of the child’s fall and his injuries and did not present any admissible evidence that a reasonable school board would have, under the circumstances, done anything differently than the Board did, she failed to meet her burden in opposing the board’s motion for summary judgment. She did not present a forecast of evidence sufficient to establish a prima facie case of negligence against the board. Accordingly, we affirm the order granting the board summary judgment.