Kungle v. Austin, 49970

• Citation: 380 S.W.2d 354
• Decision Date: 08 June 1964
• Docket Number: No. 1,No. 49970,49970,1
• Parties: Sandra KUNGLE, a Minor, b/n/f and Father, Arthur Kungle, and Arthur Kungle, Plaintiffs-Appellants, v. Wayne AUSTIN and John Jewsbury, d/b/a Tumblin Town, Defendants-Respondents
• Court: United States State Supreme Court of Missouri

Page 354

380 S.W.2d 354

Sandra KUNGLE, a Minor, b/n/f and Father, Arthur Kungle, and Arthur Kungle, Plaintiffs-Appellants, v. Wayne AUSTIN and John Jewsbury, d/b/a Tumblin Town Defendants-Respondents.

No. 49970.

Supreme Court of Missouri, Division No. 1.

June 8, 1964.

Motion for Rehearing or to Transfer to Court En Banc Denied

July 13, 1964.

Charles D. Tudor, Joplin, Edward V. Sweeney, Monett, for appellants.

Robert E. Seiler, Joplin, for respondents, Seiler, Blanchard & Van Fleet, Joplin, of counsel.

WELBORN, Commissioner.

Plaintiff Sandra Kungle, thirteen years of age at the time, was injured, on June 9, 1960, in a fall at the trampoline center in Joplin owned and operated by the defendants under the name of 'Tumblin Town.' Her claim for damages, in the amount of $35,000, brought through her father as her next friend, and her father's claim for $2,500 medical expenses incurred as a result of Sandra's injury were tried to a jury in the Jasper County Circuit Court, which returned a verdict for defendants. After their motion for new trial had been overruled, plaintiffs appealed to this court. In view of the amount sued for, we have jurisdiction of the appeal.

Defendants' trampoline center, located on West Seventh Street in Joplin, began operation on June 5, 1960. It consisted of 15 trampolines arranged in 3 rows of 5. The trampolines were numbered consecutively from 1 to 15. Each trampoline consisted of a rectangular braided nylon and rubber perforated mat, 6 ft. X 12 ft. in size. The center of the mat was marked with a white cross and not perforated. The mat was suspended over a 9 ft. x 15 ft. pit, 42 to 48 inches deep. A wooden framework, made of 2 X 12's attached to form an L, surrounded the edges of the pit. One side of the L was vertical to the ground and extended downward on the sides of the pit. The other side was horizontal with and lay on the ground. Attached to the wooden framework was a 9 ft. x 15 ft. steel frame. Steel coil springs, approximately 18 inches in length, extended from the steel frame to the mat. There were 16 such springs evenly spaced at each end of the mat and 32 along each side. The springs were attached to the mat on one end and at the other to the steel frame in eyelets on a flange extending from the frame. The springs held the mat taut and provided the energy which propelled users of the device into the air as they sprang or jumped upon it. As mentioned, the top 2 x 12 of the wooden framework lay flat on the ground. On top of the entire length of the four pieces of lumber surrounding each pit was a foam rubber mat covered with naugahide and fastened in position over the board by tabs with brass eyelets and by nails to the front and back of the board. The pad extended only to the edge of the 2 x 12's and did not extend over the metal frame or flange to which the springs were attached.

Sandra accompanied two 15-year-old girls, Joyce Miller and Jama Lewis, and the parents of the Miller girl to Tumblin Town on the evening of June 9, 1960. Sandra had not been there previously and had had no experience on trampolines. A charge of 40cents was paid for each of the three girls for their admission to the trampoline area dnd their use of the devices. They were directed by an attendant to pads 4 and 9 which adjoined each other. Joyce Miller had been to Tumblin Town previously and received instructions from Mrs. Ytell, a physical education instructor whom the defendants employed to instruct persons in the use of trampolines. Joyce explained to Sandra the technique for the use of the device, showing her how to start and stop and do a knee drop. According to the plaintiffs' witnesses, Mrs. Ytell was present near the trampoline on which Sandra was jumping, but Sandra received no instructions from her. Defendants' witnesses, including Mrs. Ytell, testified that Sandra was given instructions by Mrs. Ytell.

Sandra jumped on trampoline 4 for approximately four or five minutes while Joyce was on 9. The two girls then exchanged trampolines and Sandra started jumping on 9. She testified that she 'bounced around a couple of times * * * to get the feel of the trampoline' and then tried a knee drop. A knee drop is executed by springing in the air on one's feet, landing on the pad on one's knees, rebounding into the air and landing on one's feet again. When she started the knee drop, Sandra was in the center of the trampoline, facing north. She made one knee drop successfully and started another. According to her testimony, as she dropped to her knees the second time, 'I lost my balance and I pitched forward, and I tried to catch myself and I reached my hands out and when my elbows came into contact with the pad, it flew up and my arms slid under the stuffed place and my elbows down and my face hit the concrete.'

Sandra acknowledged that she got off the center of the mat in executing the knee drops. She said that she was not jumping very high, between a foot and two feet, and that, on the first knee drop, she traveled to the north of the center of the mat 'as much as it could be north after one jump.'

Her face struck what she described as 'the concrete, the back of the pipe.' Her jaw was fractured and she lost several teeth. Her injuries required her hospitalization for several days. The petition charged the defendants with negligence in three regards: (1) failure to pad the pipe frame and that the bolsters or pads around the perimeter were not firmly attached; (2) failure to provide proper supervision by determining the proficiency of the invitees in the use of the trampoline device which was alleged to be inherently dangerous when used by an inexperienced person; (3) failure to give plaintiff warning of the dangers involved in using a trampoline device such as keeping balance, place on the mat to land, etc.

At the trial, plaintiffs' case was submitted by instructions charging that the defendants were negligent in failure to furnish the plaintiff with adequate instruction and in permitting the pads on the outer perimeter of the trampoline to be loose and not securely fastened so that when plaintiff fell forward, her hands came in contact with the pad, that the same thereupon moved out of position by reason of which her mouth struck certain hard portions, causing her to be injured. The defendants gave instructions setting up the defenses of assumption of risk, contributory negligence, lack of negligence on the part of defendants and the converse of plaintiffs' instructions. On this appeal three issues are presented by the plaintiffs relating to the instructions on which the case was submitted. The defendants, in addition to denying error in any of the respects urged by the appellants, contend that, in any event, plaintiffs failed to make a submissible case and, therefore, the judgment should be affirmed.

In support of their contention in the latter regard, respondents have cited four cases involving injuries to trampoline users, in each of which plaintiff was held, as a matter of law, not entitled to recover. Respondents contend that the principles of those cases apply here and such principles, as a matter of law, preclude recovery by the plaintiffs. Respondents state that these are the only four cases in appellate courts involving trampoline injuries with which they are familiar and we find no other.

The first case is Myers v. Sky Jump, Inc., decided by the Tennessee Court of Appeals on August 8, 1962. Apparently, this decision is unreported; however, a copy of the court's opinion has been included in the respondents' brief. A 14-year-old girl, who had watched an older brother on a trampoline for about an hour on a prior visit, on her second visit to the center, while using the trampoline herself, fell as she was attempting to get off the mat. She charged negligence by failure to provide proper instruction and failure to provide a pad or cover for the springs into which she fell. The court found no negligence on the part of the defendant. The court also found plaintiff guilty of contributory negligence as a matter of law and that she had assumed the risk of the injury that she received.

The second case is Williams v. Lombardini, 38 Misc.2d 146, 238 N.Y.S.2d 63. There the plaintiff, a 19-year-old college student, was injured when he tried to do a forward flip on a trampoline. He went too far from the center of the mat and instead of landing on his feet struck his nose on the edge of the pit. Defendant's motion for summary judgment was sustained on the ground that plaintiff assumed the risk incidental to the use of the device. The court stated:

'* * * One of his age, education and intelligence must be presumed to have foreseen that when he propelled himself through the air in a forward flip or somersault by means of this device, he ran the risk of landing either on the frame work or beyond in such a fashion as to cause injury.'

The third case, Daniel v. S-Co. Corporation (Jumpin Gyminy Trampoline Center), 124 N.W.2d 522, was decided by the Iowa Supreme Court. The plaintiff, a 35-year-old man started to jump on a trampoline. After about five jumps, he stated that he remembered 'starting to bounce and the next thing I knew was waking up over on the side of the pit, lying, I don't remember whether on my back or my stomach.' Plaintiff's petition charged negligence by failure to warn as to inherent dangers in the device, failure to provide trained supervisory personnel to instruct and protect the plaintiff and permitting plaintiff, an inexperienced person, to use the device without instruction or supervision. In reversing outright a verdict of the trial court in favor of plaintiff, the court said (124 N.W.2d, 1. c. 526):

'* * * There was no hidden danger involved in the trampoline. It was an athletic exercise of jumping upon the mat. It is true it was plaintiff's first experience in this type of amusement. The complete mechanism was in full view of plaintiff and the instructions were...