Adkins v. Kornegay - No. 1:04-CV-2207-JEC, 2006 U.S. Dist. LEXIS 65156 (N.D. Ga. Sep. 13, 2006)

Rule:

Summary judgment is appropriate when the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.""

Facts:

After drinking several beers, and smoking marijuana, Melvin Kornegay, Jr. took his son for a ride on all-terrain vehicle (“ATV”). During the ATV ride, Kornegay drove onto property owned by defendant McLean, and attempted to jump a mound of dirt located on McLean’s property. The ATV flipped, resulting in the death of Melvin’s son. McLean was not present at the time of the accident, and had not given Melvin permission to be on his property. After the accident, plaintiff, Beth Adkins, the decedent’s mother, filed the present action, alleging that Melvin negligently operated the ATV while intoxicated and drugged. Plaintiff further alleged that the mound of dirt on McLean’s property constituted an attractive nuisance, and McLean failed to exercise reasonable care to prevent foreseeable risks created by the dirt. McLean filed a motion for summary judgment on plaintiff’s claim, contending that he did not owe any duty of care to plaintiff’s son who was trespassing on his land at the time of the accident. 

Issue:

Under the circumstances, should McLean’s motion for summary judgment be granted? 

Answer:

Yes.

Conclusion:

The court noted that the parties agreed that the decedent and the decedent’s father were trespassing on McLean’s land at the time of the accident. The court held that plaintiff has failed to present any evidence to invoke the attractive nuisance doctrine under Georgia law. The court held that there was no evidence in the record that McLean knew or had reason to know that children were likely to trespass on his property, as he posted "No Trespassing" signs along the property frontage, put locked chains across the roads leading onto his property, and asked his neighbors to keep their kids off his property. Furthermore, there was no evidence that the dirt created an unreasonable risk of death or serious bodily harm to children. The attractive nuisance doctrine did not apply to "commonplace" risks that were "normally understood by children." In addition, it was clear that the decedent was not injured as a result of his failure to appreciate, because of his youth, the danger associated with the dirt mound. The decedent was instead injured as a result of his father's decision to drive him directly onto the dirt mound, in spite of the obvious danger. There was also no evidence in the record that McLean failed to exercise reasonable care to eliminate any danger created by the dirt mound. Accordingly, McLean’s motion for summary judgment was granted.