Kane v. Landscape Structures, Inc.

709 S.E.2d 876 (2011)


P was nine years of age at the time, was injured when he fell from playground equipment that he was attempting to climb. D designed the playground equipment, which was known as the 'Infant Maze'-for children between the ages of approximately eighteen months and three years. The structure consists of several vertical panels, each of which is approximately 31 inches in height, has cutouts of various shapes and sizes for the entertainment of toddlers, and has handholds to help toddlers maintain their balance as they play. It also features a pitched roof-which is, at its peak, approximately seven feet in height-that is mounted atop four posts and covers some of the panels. P noticed that several of the older children had climbed atop the 'Infant Maze.' Children would sit atop the structure and jumping from it. P's mother had warned him before about the danger associated with climbing various things, including structures that are not as high as the roof of the 'Infant Maze.' P's parents testified that P knew they would not allow him to climb atop the 'Infant Maze.' It was clear that P 'had some awareness of the fact that [climbing to the roof of the 'Infant Maze'] was something that wasn't intended by the manufacturer.'  P knew he should not climb it but proclaimed that the 'Infant Maze' did not bear any warnings about the danger of climbing it, that 'everyone else was climbing on it,' and that he 'wasn't really thinking because [he was] a kid.' P slipped and fell and sustained serious injuries. P sued D for negligent design and failure to warn. D moved for summary judgment; P had assumed the risk. The court agreed, and P appealed.