Foss v. Kincade

766 N.W.2d 317 (2009)

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Nature of the Case

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Facts

Peggy Foss had taken David and his nine-year-old sister on a visit to the D home. The D family had moved into the neighborhood a few weeks earlier and, as a result of the move, there were boxes around the house and some of the rooms were relatively empty of furniture. Peggy Foss and Stephanie Kincade were visiting as their children played. They heard a loud bang. The two women went to where they believed the sound had originated--a small spare bedroom located a few steps from the dining room. Upon entering the room, the women saw that a bookshelf, approximately six feet tall by three feet wide, had fallen over onto the carpeted floor. Three-year-old David underneath it. David was bleeding and turning blue. Stephanie called 911, and an ambulance arrived to take David to the hospital. David suffered serious injuries to his head, was hospitalized, and underwent several invasive surgical procedures. David's injuries caused permanent disfigurement to the left side of his face and possible future eye complications. P sued Ds claiming Ds' negligence caused David's injuries. Peggy gave deposition testimony that she had seen David climb shelves and furniture in her own home before the accident and had warned David not to do so. Peggy was unaware of the bookcase in Ds' spare bedroom but admitted she had probably been in the room at some point. Peggy acknowledges that she never specifically told Ds that David climbed furniture, but that Ds were aware that David was a very active child. Ds acknowledged that a bookcase could tip over, but said they did not consider the bookcase in the spare bedroom to be a hazard to their children. Ds moved for summary judgment. It was granted because Ds owed no duty to David because the accident was not foreseeable. The court of appeals affirmed. P appealed.