# Izard Ex Rel. Izard v. Hickory City Schools Board of Education

> Court of Appeals of North Carolina · June 5, 1984 · 68 N.C. App. 625

URL: https://www.frixlaw.com/law-library/cases/9623676

## Case

- **Full name:** MICHAEL DWAYNE IZARD, a Minor, by and Through His Guardian Ad Litem, ELOISE IZARD v. THE HICKORY CITY SCHOOLS BOARD OF EDUCATION and JACK C. KETNER, H. ALLEN MITCHELL, CHARLES BAGBY, WILLIAM P. PITTS, BILLY L. McCURRY, LOIS YOUNG, RUEBELLE NEWTON, Each Individually and Jointly and Severally in Their Official Capacities as Members of Said BOARD OF EDUCATION; And COLLEGE PARK JR. HIGH SCHOOL, and H. DONNELL HAVNAER, JR., Individually and in His Official Capacity as Principal, COLLEGE PARK JR. HIGH SCHOOL, and BOYCE R. ROBERTS, Individually and in His Official Capacity as Instructor, Industrial Arts Class, COLLEGE PARK JR. HIGH SCHOOL; Other Persons, Whose Names Are Presently Unknown, Individually and in Their Official Capacities as Employees of the HICKORY CITY SCHOOL SYSTEM, and Their AGENTS, AND SUBORDINATES AND EMPLOYEES
- **Court:** Court of Appeals of North Carolina
- **Decided:** June 5, 1984
- **Citations:** 68 N.C. App. 625; 315 S.E.2d 756; 1984 N.C. App. LEXIS 3409
- **Precedential status:** Published
- **Opinion:** Concurrence by Phillips
- **Judges:** Arnold, Webb, Phillips
- **Cited by:** 11 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9623676

## Opinion text

Judge PHILLIPS
concurring in result.
Though I agree that the order of summary judgment was correctly entered in that the evidence was insufficient to establish defendant Roberts’ negligence, I do not agree that the evidence established plaintiffs contributory negligence as a matter of law. According to his affidavit, plaintiff had no experience at all and very little instruction in handling the particular type saw he was injured by, and it is a matter of common knowledge that the proper use of machines which require coordinating movements of the operator, as this one plainly did, often depends more upon habit *629 and practice than it does thought. In my opinion, plaintiffs failure to do what he had been instructed to do, though evidence of negligence, was also in keeping with his inexperience and inability, and, therefore, no proper basis for concluding that he was con-tributorily negligent as a matter of law. In my view, what the ordinary, reasonable and similarly inexperienced person would do under like circumstances is clearly a question of fact for the jury, rather than a question of law for judges.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9623676. Public record. Not legal advice.