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Jones v. Cobb8/22/2001
olving defendants of liability, the swinging of a bat with knowledge of the presence of young children nearby without taking adequate precautions can likewise be argued as conduct presenting an unreasonable risk of harm. In any event, Brittany's testimony indicates that she was not moving toward Justin at the time of the accident and she had just gotten off of her bicycle. She also indicated that she had previously been playing in the game and had batted. Thus, Justin's ability to receive notice of her nearby presence and to take precautions for her safety is in dispute. Under the test expressed in Turner, these clouded facts leave it unclear whether the activity causing the injury "would have been sufficiently negligent, imprudent and careless to constitute civil negligence if the child had been a person of discernment." Likewise, weighing all of the facts in the application of the risk-utility analysis discussed above requires that the fact-finder hear the differing versions of the game from the participants and select between the competing inferences from the facts surrounding this accident.
Accordingly, we find that the trial court's grant of summary judgment was improper, and we reverse and remand the case to the trial court for further proceedings consistent with this opinion. Costs of appeal are assessed to appellees.
REVERSED AND REMANDED.
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