Whittle v. Johnston

• Citation: 124 Ga.App. 785,186 S.E.2d 129
• Decision Date: 08 October 1971
• Docket Number: No. 46301,No. 2,46301,2
• Parties: Michael H. WHITTLE v. Randy D. JOHNSTON et al
• Court: United States Court of Appeals (Georgia)

Page 129

186 S.E.2d 129

124 Ga.App. 785

Michael H. WHITTLE v. Randy D. JOHNSTON et al.

No. 46301.

Court of Appeals of Georgia, Division No. 2.

Oct. 8, 1971.

Rehearing Denied Nov. 4, 1971.

Syllabus by the Court

The trial judge correctly denied the motion for summary judgment since the proof offered failed to establish as a matter of law that the defendant was not liable for wilful and wanton negligence.

Randy Dean Johnston, a minor, by his next friend, George D. Johnston, Jr., and George D. Johnston, Jr., individually, filed their complaint in Richmond Superior Court, against Michael H. Whittle seeking to recover damages for injuries sustained by the plaintiff, Randy Dean Johnston. The complaint generally alleges that on March 26, 1970 on the premises occupied by the defendant, the plaintiff, Randy Dean Johnston, suffered an injury to his left arm; that he was an invitee on the premises and on a 'trampoline' or jumping device owned by and under the care of the defendant whose minor daughter had invited him to come on the premises and jump on the trampoline with the consent and knowledge of the defendant but without any adult supervision; that on the date and time alleged, the plaintiff, without supervision or instruction, being wholly unfamiliar with the trampoline, attempted to jump on the same in the usual manner but because it was not properly placed on level ground it caused him to be thrown from the trampoline to the ground resulting in the alleged injuries and damages; that said damages were caused proximately by the negligence of the defendant in failing to exercise ordinary care for the safety of the minor plaintiff.

The defendant, by his answer, admitted that the plaintiff, Randy Dean Johnston, suffered an injury while on the premises and on the trampoline or jumping device owned by the defendant but denied the remaining material allegations of the complaint. Thereafter, an amendment was filed to the petition which alleged in general that the defendant and his wife were at home and inside the house, out of sight of the trampoline located in their open, unfenced backyard knowing full well that their children had gone outside to jump and play on the trampoline with other small children whom they had invited to jump with them including the minor plaintiff; that the defendant was aware of the presence of the small children and their use of the trampoline, that the use of the trampoline by the small children without any supervision exposed them to unreasonable risk of injury; that the trampoline under the circumstances, was an attractive nuisance and dangerous instrumentality and the defendant was willful and wanton in failing to exercise ordinary care to prevent injury to the minor plaintiff.

Based on answers to interrogatories and affidavits of defendant and his wife, the defendant filed a motion for summary judgment. The plaintiffs, George Johnston and Randy Dean Johnston, filed their affidavits in opposition to the motion.

The interrogatories addressed to Randy Johnston brought out that he had used the trampoline about 6 times before he had been hurt; that he did not have his father's permission to use the trampoline; that he did not know of any changes made on the trampoline; that he jumped on the trampoline in accordance with the instructions of the defendant's daughter and was bounced or thrown away from such trampoline because it was not placed on level ground, was defective and dangerous, which fact was unknown to him.

The plaintiff, George Johnston, related in his affidavit that he had no prior knowledge of his son's jumping on the trampoline; that he did not give his permission or consent for him to jump on the trampoline. The plaintiff, Randy Johnston, testified that he was invited by the daughter of the defendant to play on the trampoline; that he had jumped on it only a couple of times before; that the ground was not level where it was placed.

The defendant's wife stated in her affidavit that Randy Johnston asked that they allow him to play on the trampoline; that she required that he obtain his parents' permission and that he brought back a written permission from his mother; that he had jumped on the trampoline 3 or 4 times a week from February to May when he was injured; that no other children had been injured on the trampoline.

The defendant in answer to interrogatories stated that the plaintiff, Randy Johnston, was given instructions and warnings with regard to the trampoline that no more than 1 child could jump and turn flips, that no 'horse play' would be permitted; that he did not know how often Randy Johnston jumped but it was not infrequently; that at the time of the incident several children, including Randy Johnston, were in the yard playing and that defendant then was informed by his daughter that Randy Johnston had fallen from the trampoline; that neither he nor his wife saw the incident take place; that he did not know that Randy Dean Johnston was on the premises prior to the incident; that the trampoline was readily accessible to children and his friends and that Randy Dean Johnston was never invited by anyone in the family to jump, but neither was he ever forbidden to come into the yard; that children played on...