Throwing child from shoulders during "horseplay" cannot be gross negligence
Two judges of the Court of Appeals dismissed an injury claim filed by the Next Friend of Christopher Evans against an employee of the City of Jackson, Dan Gribble. Evans suffered a broken wrist when Gribble placed Evans on his shoulders and then threw him in the air, [hoping] "he would land on his feet." The judges voting to dismiss the case maintained that Gribble's actions merely displayed "playing" and "potential" negligence or carlessness, but not the "gross negligence" required to avoid governmental immunity.Judge Steven Borello disagreed with his peers' use of speculation to resolve a factual issue that required the Court to "examine the record in the light most favorable" to the non-moving party [in this case, the child]. Borello noted that an adult hoisting a child to his shoulders and then heaving him into the air, goes beyond mere "playing" and borders on an assault. This is particularly true where the parties acknowledge that the child was fearful and objected to the behavior. Borello would have left it to the jury to determine whether the adult's behavior demonstrated a lack of appropriate concern for whether an injury might result.