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Law School Case Brief

Kane v. Landscape Structures, Inc. - 309 Ga. App. 14, 709 S.E.2d 876 (2011)


When a motion for summary judgment is premised on the existence of an affirmative defense—such as assumption of the risk—a defendant must come forward with proof sufficient to establish each element of the affirmative defense. If the defendant does so, the plaintiff then must come forward with some evidence that shows a genuine, disputed issue of fact as to some element of the affirmative defense. If the plaintiff is unable to meet this burden of production, the defendant is entitled to summary judgment as a matter of law. Although assumption of the risk often presents a question for the jury, the issue should be decided by a court as a matter of law where the evidence shows clearly and palpably that the jury could reasonably draw but one conclusion.


Plaintiff S.K., who was nine years old at the time, fell from playground equipment and was injured. The maze from which S.K. fell was designed for children between the ages of approximately 18 months and three years, although children of all ages routinely climbed on the structure. S.K. and his parents filed suit in Georgia state court against defendant Landscape Structures, Inc., the manufacturer of the equipment, alleging negligent design and a failure to warn. There was evidence that S.K. had attempted to climb atop the structure because other children had done so and had encouraged him to climb up. Further, his parents had warned him about the dangers of climbing things. The trial court granted summary judgment to Landscape Structures upon finding that S.K. had assumed the risk of falling from the equipment when he attempted to climb it. S.K. and his parents appealed the judgment, claiming that the equipment was negligently designed and that there was a failure to warn of the dangers associated with climbing it.


Did the trial court properly grant Landscape Structures summary judgment?




The appellate court agreed with the summary judgment ruling of the trial court. It held that S.K. had assumed the risk when he climbed atop the equipment. The court noted that there was no reason to doubt that S.K. was a child of sufficient intelligence to appreciate the obvious danger of falling.

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