Persinger v. STEP BY STEP INFANT DEV.

• Decision Date: 15 February 2002
• Docket Number: No. A01A2001.,A01A2001.
• Citation: 253 Ga. App. 768,560 S.E.2d 333
• Parties: PERSINGER et al. v. STEP BY STEP INFANT DEVELOPMENT CENTER.
• Court: Georgia Court of Appeals

560 S.E.2d 333

253 Ga. App. 768

PERSINGER et al. v. STEP BY STEP INFANT DEVELOPMENT CENTER.

No. A01A2001.

Court of Appeals of Georgia.

February 15, 2002.

Leonard & Clark, William M. Clark, Kenneth T. Israel, Marietta, for appellants.

Goodman, McGuffey, Aust & Lindsey, Edward H. Lindsey, Jr., Thomas J. Lehman, Atlanta, for appellee. POPE, Presiding Judge.

James Persinger, an 18-month-old child, broke his left femur while in the custody and care of a day care center called Step By Step Infant Development Center. The child's parents filed suit, but the trial court granted summary judgment in favor of Step By Step. The parents appeal contending that they have presented an issue of fact for the jury as to Step By Step's liability.

On appeal from the grant of summary judgment this Court conducts a de novo review of the evidence to determine whether there is a genuine issue of material fact and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991); Jackson v. Post Properties, 236 Ga.App. 701, 513 S.E.2d 259 (1999).

The child's teacher, Wendy Philliber, testified that James was looking out of a window when she called him to join the other children for storytime. She testified, "He turned from the window and he ran towards me. And then he fell down, twisting his leg when he fell." She also testified that the area was carpeted, that there were no toys or other items on the floor where he fell and that he appeared to simply stumble and twist his leg on the carpet. Lana Jamieson, a coowner and officer of Step By Step, testified that through a glass window in the classroom she saw James go away from the other children then turn and start to go toward them. She then saw him fall and twist his leg. She said that the fall was not extraordinary or unusual. However, in her written statement made shortly after the injury, she did not indicate that the child had twisted his leg in the fall.

The parents offered their affidavits and that of an orthopedic surgeon. The parents testified that James was in good health prior to the accident and that he had never been diagnosed with any type of condition that could make breaking a bone more likely. The orthopedic surgeon, Dr. Anthony Alter, testified that based on his review of the x-rays and medical records, the fracture of James' femur resulted from "a significant twisting, such as the leg being caught in a crib slat, or at minimum, a fall from a height greater than the height of the child." He went on to opine that this injury "would not have reasonably occurred simply by the child walking or running across a floor absent some contact with an external object or the child stepping into a hole." He added that James' foot would have to have been "locked," that is held in place, in order for James' leg to be broken the way it was.

"In Georgia, the essential elements of a cause of action for negligence are: (1) a legal duty; (2) a breach of this duty; (3) an injury; and (4) a causal connection between the breach and the injury." (Citation omitted.) Vaughan v. Glymph, 241 Ga.App. 346, 348, 526 S.E.2d 357 (1999).

In this case the legal duty is established and the injury is not disputed. The duty of a child care provider is "to exercise reasonable care for the safety of the child... gauged by the standard of the average reasonable parent." (Citation and punctuation omitted.) Laite v. Baxter, 126 Ga.App. 743, 745-746(2), 191 S.E.2d 531 (1972). See also La Petite Academy v. Turner, 247 Ga.App. 360, 362(1), 543 S.E.2d 393 (2000) ("that care which a prudent person would exercise under like circumstances") (footnote omitted). A day care provider does not insure the safety of the child "and has no duty to foresee and guard against every possible hazard." Id. at 361-362(1), 543 S.E.2d 393. Finally, "[a]n injury, without more, does not create the presumption of negligence." (Citation omitted.) Palacios v. Abercrombie, 236 Ga.App. 54, 55(1), 510 S.E.2d 908 (1999).

The more problematic aspect of this case is whether there is any evidence that the duty was breached and that the breach caused the injury. The Persingers offer two arguments, the first of which is easily dispatched. They claim that James' teacher, Philliber, failed to prevent James from running. Philliber testified that it was her practice to "try not to allow them to run in the classroom." But this testimony does not show that allowing a toddler to run under these circumstances was a breach of duty. In fact prudent parents allow their children to run all the time. See La Petite, 247 Ga.App. at 362, 543 S.E.2d 393 (not negligent to allow toddler in day care to ride a tricycle quickly).

Other than the above, the Persingers have not offered any evidence to show how the day care center might have breached its duty of care. Instead, they have offered an expert's opinion that based on the nature of the break, the accident could not have resulted from a fall while running, and that the break indicated a "significant twisting" with the foot locked in place or a fall from a height greater than that of the child. The Persingers contend that this opinion creates an issue of fact concerning whether Step By Step breached its duty of care to James. They imply that the caregivers are actually hiding the true cause of the injury. They therefore argue that a jury could conclude that Step By Step failed to adequately supervise the child or otherwise care for the child and that this failure caused the injury.

Without any evidence of a breach of duty, summary judgment would be warranted unless the doctrine of res ipsa loquitur can be applied to these facts.

Under Georgia law, "[i]n arriving at a verdict, the jury, from facts proved, and sometimes from the absence of counter evidence, may infer the existence of other facts reasonably and logically consequent on those proved." OCGA § 24-4-9. This statute is the basis for the Georgia law of res ipsa loquitur. Hosp. Auth. &c. of St. Marys v. Eason, 222 Ga. 536, 539(1), 150 S.E.2d 812 (1966). "The principal basis for application of the rule ... is that the occurrence involved would not have occurred but for negligence, and this negligence may properly be charged to the person in exclusive control of the instrumentality." (Citations and punctuation omitted.) U.S. Fidelity &c. Co. v. J.I. Case Co., 209 Ga.App. 61, 64-65(3), 432 S.E.2d 654 (1993). "The rule is one of necessity in cases where there is no evidence of consequence showing negligence on the part of the defendant." Parker v. Dailey, 226 Ga. 643, 645(1), 177 S.E.2d 44 (1970).

"The elements of [the] doctrine are: (1) injury of a kind which ordinarily does not occur in the absence of someone's negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; and (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff." (Citation omitted.) Fender v. Colonial Stores, 138 Ga.App. 31, 38(3), 225 S.E.2d 691 (1976). See also Kmart Corp. v. Larsen, 240 Ga.App. 351, 352, 522 S.E.2d 763 (1999). Unless the plaintiff can show these elements, he or she is not entitled to present the issue to the jury. The mere fact that the plaintiff sustained an injury does not establish negligence and therefore does not justify a trial. See Coppock v. Gooden, 205 Ga.App. 763, 423 S.E.2d 708 (1992).

Res ipsa loquitur is simply a rule of circumstantial evidence that allows an inference of negligence to arise from the happening of an event if the above elements are shown. Parker v. Dailey, 226 Ga. at 645, 177 S.E.2d 44; Macon Coca-Cola Bottling Co. v. Chancey, 216 Ga. 61, 64(1), 114 S.E.2d 517 (1960).¹ It "does no more than to allow the jury to decide the case and to make or reject the inference authorized as it sees fit—it does not create a presumption to that effect for the defendant to overcome." (Citation and emphasis omitted.) McCurley v. Ludwig, 215 Ga.App. 798, 800(2), 452 S.E.2d 554 (1994). "[T]he sufficiency of the circumstantial evidence, and its consistency or inconsistency with alternative hypotheses, is a question for the jury.... [Y]et before there is, in legal contemplation, any evidence, the circumstances shown must, in some appreciable degree, tend to establish the conclusion...