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NO. COA10-1559 NORTH CAROLINA COURT OF APPEALS Filed: 20 December 2011 TYSON DAVIS, BY AND THROUGH HIS GUARDIAN BETTY GHOLSTON AND BETTY GHOLSTON INDIVIDUALLY, Plaintiffs, v. CUMBERLAND COUNTY BOARD OF EDUCATION, Defendant. Negligence -- premises liability -- bleachers -- gap between seat and floorboard Summary judgment was properly granted for defendant school board in a premises liability action arising from injuries to a six-year-old who fell through the bleachers at a football game. Defendant introduced evidence that the bleachers were in compliance with the building code and that defendant had no notice of any prior problems with the bleachers, which shifted the burden to plaintiff. Plaintiff pointed to no evidence of what a reasonable school board would have done other than changes to the bleachers after the accident, which were not admissible. Cumberland County No. 09 CVS 10015

NO. COA10-1559 NORTH CAROLINA COURT OF APPEALS Filed: 20 December 2011 TYSON DAVIS, BY AND THROUGH HIS GUARDIAN BETTY GHOLSTON AND BETTY GHOLSTON INDIVIDUALLY, Plaintiffs, v. CUMBERLAND COUNTY BOARD OF EDUCATION, Defendant. Appeal by plaintiffs from order entered 30 June 2010 by Judge E. Lynn Johnson in Cumberland County Superior Court. Cumberland County No. 09 CVS 10015

Heard in the Court of Appeals 8 June 2011. Shanahan Law Group, PLLC, by Kieran J. Shanahan and Melissa L. Pulliam, for plaintiffs-appellants. McAngus, Goudelock & Courie, PLLC, by Mary M. Webb and Webster G. Harrison, for defendant-appellee. GEER, Judge. Plaintiff Betty Gholston, on her own behalf and as guardian for Tyson Davis, appeals from the trial court's order granting summary Education judgment ("the to defendant, in this Cumberland premises County Board of

Board"),

liability

action.

Tyson Davis, who was six years old at the time, was severely and

-2tragically injured when he fell through bleachers located on the premises of the Board's Seventy-First High School. Because the

Board presented evidence that it was not negligent -- in that the bleachers complied with the North Carolina Building Code ("the Building Code") and it had no notice of any prior problems with the bleachers -and because plaintiff presented no

admissible evidence that a reasonable and prudent school board would have done anything different with respect to the

bleachers, we hold that the trial court properly granted the Board summary judgment. Facts On 20 October 2006, Tyson Davis attended a football game with his father at Seventy-First High School in Fayetteville, North Carolina. school's Tyson sat with his father near the top of the bleachers. The bleachers were damp with

aluminum

condensation, and Tyson, while walking down them, slipped and fell through the 18-inch to 24-inch gap between the bleacher seat and the floorboard. struck his head surgery on to the Tyson fell approximately 10 feet and concrete, fracturing metal his skull. and He

underwent

have

permanent

plates

screws

inserted into his head. Plaintiff filed suit against the Board on 7 October 2009, alleging that the Board breached its duty to ensure that the

-3bleachers and its premises were reasonably safe for all invitees by failing to cover the openings between the seats of the

bleachers or take any other measures to protect invitees from the danger presented by the openings. Plaintiff further alleged

that the Board breached its duty to warn of the risk and danger associated with the bleachers. Defendant denying filed an answer and on 8 December the 2009 generally of

plaintiff's

claim

asserting sovereign filed a

defenses

contributory conducting

negligence

and

immunity. motion for

After summary

discovery,

defendant

judgment on 28 May 2010. The Board presented an affidavit from an engineer attesting that the bleacher seatboards and floorboards met the Building Code requirements and standards at the time they were originally constructed and installed and when they were modified in 1985 to replace the wooden seatboards and footboards with aluminum

seatboards and footboards.

Further, at the time Tyson fell in

2006, "the bleachers were compliant with the appropriate North Carolina Building Code given the date(s) of installation and modification." Additionally, Mickey Stoker, the school's athletic director in 2006, submitted an affidavit stating that he inspected the bleachers twice a year for safety and maintenance. According to

-4Mr. Stoker, at the time of the accident, the bleachers were in a safe condition and did not require any repairs. been the athletic director for six years Mr. Stoker had during this

and,

period, there had never been any problems with the bleachers and he was unaware of anyone falling through the bleachers and

injuring themselves prior to 20 October 2006. In response to the motion for summary judgment, plaintiff submitted the affidavit of Tyrone Davis, Tyson's father. Mr.

Davis described the bleachers, what occurred on 20 October 2006, how Tyson came to fall to the concrete under the bleachers, and the fact that a number of children of Tyson's age were present in the bleachers. The trial court entered an order granting summary judgment for the Board on 30 June 2010. this Court. I Summary judgment is properly granted "if the pleadings, Plaintiff timely appealed to

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." 56(c). N.C.R. Civ. P.

This Court reviews the trial court's grant of summary

-5judgment de novo. Nationwide Mut. Fire Ins. Co. v. Mnatsakanov,

191 N.C. App. 802, 805, 664 S.E.2d 13, 15 (2008). Our Supreme Court has explained the burdens applicable to a motion for summary judgment: The party moving for summary judgment bears the burden of establishing that there is no triable issue of material fact. This burden may be met by proving that an essential element of the opposing party's claim is non-existent, or by showing through discovery that the opposing party cannot produce evidence to support an essential element of his claim or cannot surmount an affirmative defense which would bar the claim. DeWitt v. Eveready Battery Co., 355 N.C. 672, 681, 565 S.E.2d 140, 146 (2002) (internal citations and quotation marks

omitted). Once the moving party meets its burden, "then the nonmovant must produce a forecast of evidence demonstrating that the

plaintiff will be able to make out at least a prima facie case at trial." 63, 414 Roumillat v. Simplistic Enters., Inc., 331 N.C. 57, S.E.2d 339, in 342 (1992) on (internal quotation by marks v.

omitted),

overruled

part

other

grounds

Nelson

Freeland, 349 N.C. 615, 507 S.E.2d 882 (1998).

In order to meet

this burden, the nonmoving party "'may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in [Rule 56] must set forth

-6specific trial.'" facts showing that there is a genuine issue for

Id. (quoting N.C.R. Civ. P. 56(e)).

As our Supreme Court explained in Martishius v. Carolco Studios, Inc., 355 N.C. 465, 473, 562 S.E.2d 887, 892 (2002) (internal citation omitted), a premises liability case,

"[a]ctionable negligence occurs when a defendant owing a duty fails to exercise the degree of care that a reasonable and

prudent person would exercise under similar conditions, or where such a defendant of ordinary prudence would have foreseen that the plaintiff's injury was probable under the circumstances." Under this standard, a premises' owner "'must use the care a reasonable man similarly situated would use to keep his premises in a condition -safe the for the foreseeable varies use from by one [a lawful of

visitor]

but

standard

type

establishment to another because different types of businesses and different types of activities involve different risks to the [lawful visitor] and require different conditions and

surroundings for their normal and proper conduct.'"

Id. at 474,

562 S.E.2d at 893 (quoting Hedrick v. Tigniere, 267 N.C. 62, 67, 147 S.E.2d 550, 554 (1966)). The question presented by this case is, therefore, whether the Board exercised the care that a reasonable school board

would have exercised with respect to bleachers at an athletic

-7field under similar circumstances. at 893-94 (holding such that "defendant care as See id. at 475, 562 S.E.2d landowner a had a duty to

exercise

reasonable

landowning

proprietor,

running a motion-picture studio while maintaining a significant degree of control over the daily operations of its licensees, would exercise under the circumstances"). In support of its motion for summary judgment, the Board presented evidence that its bleachers complied with the Building Code and that their having ever fallen athletic through director was unaware of anyone the bleachers or of any other

problems with the bleachers.

While plaintiff argues vigorously

that "[w]hether a building or structure meets the standards of the North Carolina Building Code, N.C. Gen. Stat.

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