Goodman v. City of Smyrna

• Decision Date: 04 February 1998
• Docket Number: No. A97A2067,A97A2067
• Citation: 497 S.E.2d 372,230 Ga.App. 630
• Parties: , 98 FCDR 587 GOODMAN et al. v. CITY OF SMYRNA.
• Court: Georgia Court of Appeals

Page 372

497 S.E.2d 372

230 Ga.App. 630, 98 FCDR 587

GOODMAN et al. v. CITY OF SMYRNA.

No. A97A2067.

Court of Appeals of Georgia.

Feb. 4, 1998.

Reconsideration Denied Feb. 18, 1998.

Certiorari Denied May 29, 1998.

King & Croft, F. Carlton King, Jr., Thomas A. Croft, Atlanta, for appellants.

Freeman, Mathis & Gary, Theodore Freeman, Drew, Eckl & Farnham, William T. Mitchell, Shivers & Associates, Wayne C. Wilson, Atlanta, Dan. J. Colley, for appellee.

ANDREWS, Chief Judge.

Dennis Goodman sued the City of Smyrna claiming the City wrongfully caused the death of his 11-year-old child, Deanette Goodman. ¹ This tragic death resulted from injuries the child sustained when she roller-skated down the incline of a City street, lost control, and skated off the street into the drop-off of an adjacent rocky creek bed. Goodman alleged that the street and the creek were negligently constructed and maintained by the City or constituted a nuisance. The trial court granted the City's motion for summary judgment concluding that the child was aware of the creek bed, appreciated the danger of being injured by falling into it, and assumed the risk by skating down the slope of the street at a high rate of speed in the vicinity of the drop-off.

The record shows that the street at issue sloped down a hill to a sharp curve and that at the curve, a creek ran adjacent to the street with about a six-foot drop-off from the street level to the bottom of the creek bed. Although a small amount of vegetation was growing in an area a few feet wide between the edge of the street and the drop-off, a photograph of the area taken the day after Deanette fell shows that the vegetation did not obscure the drop-off. The City police detective who investigated the incident the day after it happened and took the photograph stated by affidavit that the drop-off was visible coming down the hill from a distance of at least 40 feet. There was no evidence that anyone had previously fallen into the creek or that the City had ever received any report that the street or the creek posed a hazard to pedestrians.

Goodman deposed that he allowed his daughter to skate on the street because it was located in the quiet neighborhood in which they resided. He testified that Deanette was an accomplished skater who frequently skated down the sloped street, that she was intelligent and mature for her age, and that she was aware of the danger of being injured by falling from a height. A friend with whom Deanette played and skated in the neighborhood stated by affidavit that prior to the incident at issue, she and Deanette had on two occasions looked at the creek and the drop-off in the area where Deanette later fell. She stated that she and Deanette talked about the fact that there was a drop-off down to the creek, that they could be hurt by falling into the creek from the street, and that they should be careful in that area. She stated that on the day Deanette fell into the creek, they were skating together down the incline of the street being chased by Deanette's brothers. She said that Deanette was ahead of her skating "very fast" down the street and that as Deanette approached the area of the street where the creek ran adjacent, Deanette looked back at her and yelled, "hurry up." She stated that before Deanette could turn back around, she skated off the street and into the creek.

Although assumption of the risk is ordinarily a jury question, in plain, palpable and indisputable cases, it may be decided as a matter of law. Young v. Brandt, 225 Ga.App. 889, 891, 485 S.E.2d 519 (1997). In order to establish the defense of assumption of the risk, the City was required to show that Deanette Goodman "(1) had actual knowledge of the danger; (2) understood and appreciated the risks associated with such danger; and (3) voluntarily exposed [herself] to those risks." (Footnote omitted.) Vaughn v. Pleasent, 266 Ga. 862, 864(1), 471 S.E.2d 866 (1996). As to a child between the ages of seven and fourteen, "there is no presumption that the child did or did not exercise due care or does or does not have sufficient capacity to recognize danger or to observe due care." (Citations and punctuation omitted.) Jackson v. Young, 125 Ga.App. 342, 343-344, 187 S.E.2d 564 (1972). For children between these ages, these issues hinge on the circumstances of the case and the capacity of the particular child. Id. at 344, 187 S.E.2d 564. Nevertheless, there is no bar to applying assumption of the risk, as a matter of law, to the conduct of a child between these ages when the evidence shows that the danger was obvious, that the child knew of the danger and was able to appreciate the risks associated with it, and the child voluntarily chose to run the risk. Abee v. Stone Mountain Mem. Assn., 252 Ga. 465, 466, 314 S.E.2d 444 (1984), affirming 169 Ga.App. 167, 312 S.E.2d 142 (1983).

Generally, the dangers of fire, water and falling from heights are considered to be understood even by a young child absent factors creating additional risks which could not be appreciated by the child. Riley v. Brasunas, 210 Ga.App. 865, 867, 438 S.E.2d 113 (1993). "No danger is more commonly realized or risk appreciated, even by children, than that of falling; consciousness of the force of gravity [is almost instinctual]. Certainly a normal child [of 11] years of age ... knows that if it steps or slips from ... [an] elevated structure, it will fall to the ground and be hurt." (Citation and punctuation omitted.) Laite v. Baxter, 126 Ga.App. 743, 746-748, 191 S.E.2d 531 (1972); Riley, supra at 867, 438 S.E.2d 113. Accordingly, Goodman's 11-year-old daughter is considered to have assumed the risk of patent, obvious and known dangers which she was able to appreciate and avoid. Abee, supra, 169 Ga.App. 167, 169, 312 S.E.2d 142.

We need not address Goodman's allegations that the City was negligent or maintained a nuisance, nor need we decide whether the child occupied the status of a licensee or trespasser at the time of the incident. Even assuming, without deciding, that the City breached a duty of care owed to the child, we conclude that the trial court correctly granted summary judgment to the City on the basis of assumption of the risk. In this case, the danger and associated risks of roller-skating down the slope of the street at a high rate of speed toward a sharp curve in the street bordered by a visible six-foot-deep drop-off were obvious. See Biggs v. Brannon Square Assoc., 174 Ga.App. 13, 16-18, 329 S.E.2d 239 (1985). The record shows that Deanette was an intelligent 11-year-old who was an experienced skater, knew the drop-off was there, and appreciated the danger of falling into it from the street. Here, the obvious risks in skating at a high rate of speed down the sloped street toward the adjacent drop-off to the creek were losing control, skating off the street into the creek, and being injured in the fall. "[T]he obviousness of the very danger which led to [Deanette's tragic death] makes this one of those cases in which a minor below the age of fourteen may be deemed to have assumed the risk as a matter of law." Abee, supra, 252 Ga. at 465-466, 314 S.E.2d 444; Barnes v. Fulton, 213 Ga.App. 806, 807-808, 446 S.E.2d 213 (1994).

Goodman claims the child's momentary inattentiveness before she fell precludes application of assumption of the risk. Although it appears that Deanette may have momentarily disregarded the danger when she looked back to call to her friend, this does not change the fact that she assumed the risk of a danger she knew and appreciated. "It may be that some children, while realizing the danger, will disregard it...