Buck v. Tweetsie Railroad, Inc.

261 S.E.2d 517 (1980) 44 N.C. App. 588

Sylvia Marie Burrell BUCK, Plaintiff-Appellant,
v.
TWEETSIE RAILROAD, INC., and Goforth Brothers, Inc., Defendants-Appellee.

No. 7828SC916.

Court of Appeals of North Carolina.

January 15, 1980.

McLean, Leake, Talman, Stevenson & Parker, by Joel B. Stevenson, Asheville, for plaintiff-appellant.

Roberts, Cogburn & Williams, by Landon H. Roberts, Asheville, for defendant-appellee Tweetsie R.R., Inc.

Morris, Golding, Blue & Phillips, by William C. Morris, Jr., Asheville, for defendant-appellee Goforth Bros., Inc.

WEBB, Judge.

The plaintiff assigns as error the granting of the motion for summary judgment. In regard to summary judgments, G.S. 1A-1, Rule 56(c) provides:

The judgment sought shall be rendered forthwith if 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 any party is entitled to a judgment as a matter of law.

Our Supreme Court has interpreted this section in Moore v. Fieldcrest Mills, Inc., 296 N.C. 467, 251 S.E.2d 419 (1979) to mean that if the moving party forecasts such evidence as would require a directed verdict for the movant at trial, the party opposing the motion must file papers which forecast evidence which would prevent a directed verdict at trial in order to prevent summary judgment in favor of the movant. Using this test, we must determine if the evidence as forecast by the papers filed in this case would require directed verdicts for the defendants.

The plaintiff suffered a serious injury while bouncing on a moonwalk. She had received no warning of danger and no instructions as to how to land while bouncing except she was told to take off her shoes, remove sharp objects from her pockets, and not to bounce within five feet of any other person. Mr. Tom Thrailkill's affidavit was to the effect that it is dangerous for a person to bounce on a trampoline without training as to proper landing. The question as to each defendant is if the jury should find that the plaintiff was injured on the moonwalk because she was not warned of its dangers or instructed in its use, could the jury find that the injury was proximately caused by the failure of the defendant to do something that a reasonable man would have done. See Electric Co. v. Dennis, 255 N.C. 64, 120 S.E.2d 533 (1961) for a definition of negligence.

As to defendant Tweetsie, we hold that if the jury should believe Mr. Thrailkill as to the dangers in using a trampoline; and if they should find that Tweetsie purchased the moonwalk and had it installed on Tweetsie's premises without getting proper information as to the dangerous propensities of the moonwalk; and if it failed to warn plaintiff of the danger of bouncing on the moonwalk without proper instruction; and she was injured while bouncing on the moonwalk, this is evidence from which the jury could conclude that Tweetsie's failure to get adequate information as to the danger involved in bouncing on a moonwalk and its failure to warn or instruct the plaintiff as to bouncing on the moonwalk was a failure to do something a reasonable man would have done which was a proximate cause of injury to the plaintiff. It was error to grant the motion for summary judgment in favor of Tweetsie.

As to the defendant Goforth, we hold that if the jury should believe Mr. Thrailkill as to the dangers in using a trampoline; and if they should find that Goforth sold the moonwalk to Tweetsie without knowing its dangerous propensities and/or without warning Tweetsie of its dangerous propensities; and the plaintiff was injured while bouncing on the moonwalk, this is evidence from which the jury could conclude defendant Goforth's failure to procure adequate information about the dangerous propensities of the moonwalk and/or its failure to warn Tweetsie of these propensities is evidence from which the jury could conclude defendant Goforth failed to do something a reasonable man would have done which was a proximate cause of injury to the plaintiff. It was error to grant the defendant Goforth's motion for summary judgment.

The defendants argue that Mr. Thrailkill gave expert testimony as to a trampoline, and the plaintiff was not injured on a trampoline. Defendants contend his testimony should not be considered. We believe the answer to this argument is that, assuming a moonwalk is not a trampoline in the sense that the physical principles used by a trampoline to propel a person upward are not used by a moonwalk, it is not the cause of the bounce that is the danger. The danger at which Mr. Thrailkill's affidavit is directed is the propelling a person upward without training as to how to fall.

Appellant has also assigned as error the refusal of the court to allow her to amend her complaint to allege with more specificity the negligence of Tweetsie. We believe the plaintiff has sufficiently alleged negligence on the part of each defendant to offer proof of her claim. In light of this we do not disturb the ruling of the superior court denying the motion to amend the complaint.

Reversed and remanded.

ROBERT M. MARTIN, J., concurs.

MITCHELL, J., concurs in the result.