O'Neal v. Sikes, A04A2195 (GA 1/25/2005), A04A2195.

• Decision Date: 25 January 2005
• Docket Number: A04A2195.
• Parties: O'NEAL et al. v. SIKES et al.
• Court: Georgia Supreme Court

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O'NEAL et al. v. SIKES et al.

A04A2195.

Court of Appeals of Georgia.

Decided: January 25, 2005

MILLER, Judge.

Patricia O'Neal sued Tammy and Corey Sikes for injures suffered by a nine-year-old boy who fell from a rope leading to a tree house. The Sikeses moved for summary judgment, which the trial court granted. O'Neal appeals from this ruling. Since the evidence reveals that the child, through his own conduct and behavior prior to the accident, assumed the risk of his injuries as a matter of law, under the current binding law of Georgia, we are constrained to affirm.

On appeal from the grant of a motion for summary judgment, we conduct a de novo review of the law and evidence, viewing the evidence in the light most favorable to the nonmovant, to determine whether a genuine issue of material fact exists and whether the moving party is entitled to judgment as a matter of law. Holbrook v. Stansell, 254 Ga. App. 553, 553-554 (562 SE2d 731) (2002).

The evidence reveals that Corey Sikes attached a rope swing to a tree that contained a tree house. The tree house had three levels, the highest of which was 25 feet above the ground.

Nine-year-old N. P. decided to swing on the rope swing after seeing other children do so because he thought that it looked like fun. The undisputed evidence reveals that N. P. is an intelligent child who received A's and B's in school, and he told one of the children at the rope swing that he wanted to be a daredevil. N. P. climbed to the third level of the tree house and fell when he attempted to swing from the rope, resulting in serious injuries.

O'Neal, individually and as next friend of N. P., sued Corey Sikes and his wife, Tammy, for N. P.'s injuries.¹ Following the grant of the Sikeses' motion for summary judgment, O'Neal appeals.

Assumption of risk is generally a jury issue, although, in plain and palpable cases such as this one, the issue may be decided by a judge as a matter of law. Spooner v. City of Camilla, 256 Ga. App. 179, 181 (2) (a) (568 SE2d 109) (2002). In order to establish the defense of assumption of risk, the Sikeses were required to show that N. P. "(1) had actual knowledge of the danger; (2) understood and appreciated the risks associated with such danger; and (3) voluntarily exposed himself to those risks." (Citation omitted.) Stewart v. Harvard, 239 Ga. App. 388, 396 (4) (b) (520 SE2d 752) (1999). Even though N. P. is a child of tender years, "there is no legal bar to applying assumption of risk, as a matter of law, to the conduct of a child between the[] ages [of seven and fourteen] 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." (Footnote omitted.) Spooner, supra, 256 Ga. App. at 182 (2) (a).

Moreover, this Court has held that the risk of falling from great heights is a risk that...