Appeal by defendants Donald Powers, Individually, Linda Powers, Individually, and Donald Powers and Linda Powers d/b/a Linda's Child Day Care Center, from judgment filed 4 September 1996 and from order filed 4 October 1996 by Judge Russell G. Walker, Jr. in Randolph County Superior Court. Heard in the Court of Appeals 7 January 1998.
The opinion of the court was delivered by: Greene, Judge.
Donald Powers and Linda Powers (Mrs. Powers), individually and doing business as Linda's Child Day Care Center (the Day Care) (collectively, Defendants), appeal from the entry of judgment on a jury verdict in favor of Jamie Lee Pruitt (Jamie) and his mother and guardian ad litem, Patricia Clifton Pruitt, (collectively, Plaintiffs) in the amount of $116,380.85.
On 11 August 1993, three-year-old Jamie fractured the femur in his leg when he fell at the Day Care. Plaintiffs brought the following claims against Donald and Mrs. Powers as owners/operators of the Day Care: 8. . . . negligently failed to supervise and care for minor plaintiff . . . .
9. . . . were negligent in the following respects:
(a) Defendants . . . failed to ensure that a safe indoor environment was provided for the minor plaintiff violating 10 NCAC 30, Rule .0601(a) and N.C.G.S. § 110-85 and § 110-91.
(b) Defendants . . . failed to keep, exercise and maintain careful and proper supervision of minor plaintiff in violation of 10 NCAC 3U, Rule .0714(e) and thereby violated N.C.G.S. § 110-85.
(c) Defendants . . . failed to keep, exercise and maintain proper supervision of minor plaintiff in violation of the laws of the State of North Carolina.
(d) Defendants . . . failed to exercise the degree of care that a reasonable person of ordinary prudence would have exercised under the same or similar conditions then and there prevailing, in violation of and contrary to the laws of the State of North Carolina.
At trial, Jamie's classroom teacher testified that as the ten three- and four-year-old children in her class were lining up to go out to play, four of the boys (including Jamie) began pushing each other playfully. The teacher described the children as particularly "excited about getting to go outside" because the weather had been too bad for the previous two days to go outdoors. When the boys began pushing to get to the front of the line, the teacher told the children to stop pushing and separated the boys, placing Jamie near the middle of the line. As she continued to get the children ready to go outside, the boys again ran together and began pushing towards the door, at which point the teacher again separated the boys, placing Jamie near the front of the line of children, with the other three boys spaced out in the middle and back of the line. The boys immediately began pushing towards the door again as the teacher continued to try to get the children under control, and Jamie was pushed to the floor, fracturing his femur. The teacher testified that these four boys had pushed before, and that she had to "call them down . . . between four and five times a day . . . once a week or twice a week or so." The teacher had dealt with this problem "ten or more times." On the previous pushing occasions, the teacher testified that she had separated the boys from each other, and had "set them down and told them it wasn't nice to push, that they were going to hurt someone." The teacher had also talked to Mrs. Powers about her concerns that someone could get hurt due to the pushing "about a week or two before" Jamie's fall, and had asked Mrs. Powers to speak to the boys about it. After learning about the problem from the teacher, and before Jamie's fall, Mrs. Powers did place the boys in a "time out" circle to talk to them, and spoke to the boys about their "pushing and shoving."
The manual for the Day Care provided, in pertinent part, for the following disciplinary procedures:
When a child misbehaves, we will use our time out chair as a disciplinary action. The child will be required to sit quietly for 2 to 5 minutes. We will also take certain activities away from him for a short period of time. If for some reason this does not work with your child we will resort to calling either one or both parents at work to help us work out the problem. . . .
Children are going to be children and there will always be a certain amount of fighting, biting, and pulling hair among these children. At times this is hard to control, so parents! If we call you at work please understand that this is important or we would not be calling to disturb you on your job. We have had to do this in the past, so we know that this does work.
Mrs. Powers testified that she did not talk with the parents of the boys about the pushing incidents prior to Jamie's fall. Mrs. Powers had the authority to dismiss children from the Day Care for bad behavior, but did not feel the pushing incidents were severe enough to warrant dismissal. Another option would have been to separate the four boys into different classrooms. This option, however, would involve placing the boys either in a classroom with five-year-olds or in a classroom with two-year-olds, and therefore would require special permission from the State. Mrs. Powers further testified that placing children out of their age group was generally done only when ...