Feagin ex rel. Feagin v. Staton

HEDRICK, Chief Judge. Plaintiffs contend the trial court erred in excluding testimony from plaintiff Donald Feagin concerning statements made by Jack McFadder. McFadder had discussed the condition and safety of the dumpster, as he found it after the accident, with Feagin. This testimony was properly excluded as hearsay, and it was not admissible as an admission, even though defendant Faulkner employed McFadder as an ambulance driver, since there was no evidence that McFadder’s employment related to the dumpster or that Faulkner had authorized him to make any statements regarding the dumpster. See 2 H. Brandis, Brandis on North Carolina Evidence Sec. 169 (2d rev. ed., 1982). Moreover, Feagin’s own testimony indicated that the dumpster was less level after the accident than before, and this change of condition renders inadmissible any testimony as to the condition of the dumpster after the accident. 1 H. Brandis, Brandis on North Carolina Evidence Sec. 90 (2d rev. ed., 1982). Plaintiffs contend the directed verdicts in favor of defendants were error because the evidence could have permitted the jury to find that the dumpster was an “attractive nuisance.” We disagree. Plaintiffs were required to present evidence showing (1) that the dumpster was a dangerous instrumentality or created an [681] unreasonable risk, and (2) that children had been attracted to it to such an extent and over such a period of time that a person of ordinary prudence would have foreseen that injury was likely to result. Samuel v. Simmons, 50 N.C. App. 406, 409, 273 S.E. 2d 761, 763, disc. rev. denied, 302 N.C. 399, 279 S.E. 2d 352 (1981). Plaintiffs’ evidence fails in both respects. Cheryl Feagin could not specifically remember having seen the dumpster that injured her tip over on previous occasions. All the other testimony indicates that the dumpster that injured her had never been seen to fall over, it could not be rocked or tipped without several people pushing it, and it sat on fairly level ground. Thus, plaintiffs failed to show the dumpster was a dangerous instrumentality. Nor did defendant Staton create an unreasonable risk in not securing the dumpster to the ground since it was his customary practice not to secure dumpsters to the ground, and there was no showing that this practice was unreasonable. Even if the dumpster had been inherently dangerous, neither defendant reasonably could have foreseen injury because they were not aware of children in that trailer park being attracted to the dumpsters. Plaintiffs have failed to satisfy critical elements of their negligence claim. See Samuel v. Simmons, 50 N.C. App. 406, 273 S.E. 2d 761 (1981). Affirmed. Judges Whichard and Parker concur.