Bailey v. Jim's Minit Market, Inc.

• Decision Date: 09 February 2000
• Docket Number: No. A00A0001.,A00A0001.
• Citation: 529 S.E.2d 436,242 Ga. App. 518
• Parties: BAILEY et al. v. JIM'S MINIT MARKET, INC.
• Court: Georgia Court of Appeals

529 S.E.2d 436

242 Ga. App. 518

BAILEY et al. v. JIM'S MINIT MARKET, INC.

No. A00A0001.

Court of Appeals of Georgia.

February 9, 2000.

Reconsideration Denied February 29, 2000.

Feldman & Associates, Monroe J. Feldman, Douglas R. Sandberg, Atlanta, for appellants.

McClure, Ramsay & Dickerson, John A. Dickerson, Toccoa, for appellee.

McMURRAY, Presiding Judge.

On February 3, 1995, Tammy Almond took her ten-year-old son, Michael Adam Erwin ("Adam"), to Wal-Mart to buy a Daisy CO2-powered BB pistol. The next day, Adam went by himself to Jim's Minit Market, Inc. ("Market"), where an unnamed male cashier permitted him to purchase BBs, despite the objection of a female cashier, Gina Duck. Afterward, Adam went home and began playing cowboys and Indians, shooting his loaded pistol. Almond, a single parent, had gone to Wal-Mart, leaving Adam unsupervised.

Seven-year-old Beau Bailey ("Beau"), who lived across the street from Adam, was playing cowboy but stayed in his front yard. Beau had a cap gun that shot caps but not BBs or pellets. Adam started shooting at Beau. After hitting Beau in the leg with a BB, Adam crossed the street and went onto Beau's front yard. Beau started running toward the mailbox, and Adam gave chase. When Beau looked back, Adam shot Beau in the eye, causing permanent loss of peripheral vision.

In March 1995, a petition for delinquency was filed against Adam in the Juvenile Court of Elbert County, alleging delinquent acts that if committed by an adult would constitute the offenses of aggravated assault and discharging a firearm near a public street. The court placed Adam on intensive probation and ordered the gun destroyed, among other things.

On January 24, 1997, Beau's parents, George Bailey and Sunny Bailey, filed suit against Adam, his mother, and Market, alleging, inter alia, that Market's male cashier acted negligently and recklessly when he sold BBs to Adam. Market moved for summary judgment, which was granted. This appeal followed. Held:

The Baileys argue that the trial court erred in ruling, as a matter of law, that Market's sale of BBs to Adam was not a proximate cause of Beau's injury. We agree and reverse.

Recently this Court held that "[p]roximate cause is properly reserved for the jury and can only be appropriately addressed on summary judgment in `plain and indisputable cases.'" Schernekau v. McNabb, 220 Ga. App. 772, 773, 470 S.E.2d 296. This Court's reasoning was based in part on Atlanta Obstetrics &c. v. Coleman, 260 Ga. 569, 570, 398 S.E.2d 16, which held that

whether proximate cause exists in a given case is a mixed question of law and fact. It requires both factfinding in the "what happened" sense, and an evaluation of whether the facts measure up to the legal standard set by precedent. Ordinarily, both determinations are most appropriately made by a jury....

Bearing these principles in mind, we turn our attention to the facts of the case sub judice. In opposition to Market's motion for summary judgment, the Baileys produced an affidavit from Duck, Market's employee who had refused to sell BBs to Adam on the day he shot Beau. Duck attested to her belief that selling BBs to a child unaccompanied by an adult "created a very dangerous situation." Duck further stated that she voiced her concerns to her male co-employee but he ignored them. Duck also deposed that she had previously discussed Market's practice of selling BBs to unaccompanied minors with a manager who agreed that it was dangerous. However, Market refused to discontinue this practice, according to Duck.

In response to this affidavit, Market argued that the sole proximate cause of Beau's injury was Almond's negligent failure to supervise her son Adam and/or Adam's intentional act of shooting Beau. Market also contended it could not be held liable because it had no knowledge of Adam's propensity for dangerous behavior.

Market's position incorrectly assumes that such knowledge is essential to a finding of liability.

"With reference to foreseeability of injury, the correct rule is that in order for a party to be held liable for negligence, it is not necessary that he should have been able to anticipate the particular consequences which ensued. It is sufficient if, in ordinary prudence, he might have foreseen that some injury would result from his act or omission, and that consequences of a generally injurious nature might result." (Citations and punctuation omitted.) Wallace v. Sears, Roebuck & Co., 196 Ga.App. 221, 222, 396 S.E.2d 41 (1990).

Schernekau v. McNabb, ...