Waltz v. Wake County Board of Education

409 S.E.2d 106 (1991) 104 N.C. App. 302

Lewis WALTZ, Individually, and as Guardian Ad Litem for Jason Waltz, a Minor, Plaintiffs,
v.
The WAKE COUNTY BOARD OF EDUCATION and Wake County Public School System, Defendants.

No. 9010SC1348.

Court of Appeals of North Carolina.

October 15, 1991.

Bingham & Tuttle, by Richard S. Bingham, Raleigh, for plaintiff-appellant.

Robert E. Smith, Raleigh, for defendant-appellees.

EAGLES, Judge.

Plaintiff-appellant contends the trial court erred in granting summary judgment for the defendants. We disagree.

Summary judgment is a drastic remedy to be granted only with caution, especially in cases alleging negligence. Dumouchelle v. Duke Univ., 69 N.C.App. 471, 473, 317 S.E.2d 100, 102 (1984). Nevertheless, summary judgment is appropriate where a party cannot prove the existence of an essential element of their claim. Little v. National Servs. Indus., Inc., 79 N.C.App. 688, 690, 340 S.E.2d 510, 511 (1986).

Here plaintiff asserted a claim based in negligence against the defendants. " ``To recover damages for actionable negligence, plaintiff must establish (1) a legal duty, (2) a breach thereof, and (3) injury proximately caused by such breach.'" Matthieu v. Piedmont Natural Gas Co., 269 N.C. 212, 217, 152 S.E.2d 336, 341 (1967) (citing Petty v. Print Works, 243 N.C. 292, 90 S.E.2d 717 (1956). Plaintiffs have failed to show that the defendants have breached their legal duty.

A student attending school is an invitee while on the property of that school. Clary v. Alexander County Bd. of Educ., 19 N.C.App. 637, 638-639, 199 S.E.2d 738, 739 (1973), aff'd, 285 N.C. 188, 203 S.E.2d 820 (1974), opinion withdrawn and rev'd on other grounds, 286 N.C. 525, 212 S.E.2d 160 (1975).

A landlord owes a duty to an invitee to use reasonable care to keep the premises safe and to warn of hidden dangers, but he is not an insurer of the invitee's safety. (Citations omitted.) ...

These rules apply to a public school or board of education just as they apply to any other landlord, if the board of education has waived the defense of sovereign immunity (as defendant has done in the present case) by purchasing a liability insurance policy....

Clary 19 N.C.App. at 639, 199 S.E.2d at 739-740.

Here, the plaintiff has failed to show that the defendant has breached its duty of reasonable care. "[R]ecovery has generally not been permitted for injuries suffered by children on school grounds as a result of common, permanent, or natural conditions existing thereon." 68 Am.Jur.2d Schools § 325 (1973). We do not go so far as to say that a school may never be liable for injury resulting from a natural condition. However, school officials simply cannot be expected to protect children from every natural condition they may encounter on a school yard or a playground. Falls and mishaps, though unfortunate, are a part of every school child's life and are something that neither teachers nor parents can reasonably be expected to guarantee to prevent. Here, the school took reasonable steps to protect its students by placing sand underneath and around playground equipment. This did not serve to aggravate the natural condition of the roots. If anything, it served to mitigate it by cushioning the fall of students. We hold, as a matter of law, that the school has not breached its duty of reasonable care.

Affirmed.

HEDRICK, C.J., and GREENE, J., concur.