Persinger v. STEP BY STEP INFANT DEV., No. A01A2001.

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

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.

560 S.E.2d 335

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.

560 S.E.2d 334

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. [253 Ga. App. 769] 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

560 S.E.2d 336

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 [253 Ga. App. 770] 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...