Fagan v. Atnalta, Inc., 76518

• Decision Date: 03 November 1988
• Docket Number: No. 76518,76518
• Citation: 189 Ga.App. 460,376 S.E.2d 204
• Parties: FAGAN v. ATNALTA, INC.
• Court: Georgia Court of Appeals

Page 204

376 S.E.2d 204

189 Ga.App. 460

FAGAN v. ATNALTA, INC.

No. 76518.

Court of Appeals of Georgia.

Nov. 3, 1988.

Rehearing Denied Dec. 5, 1988.

Davidson & Associates, William M. Davidson, Thomas P. Lenzer, Norcross, for appellant.

Thomas E. Magill, Atlanta, for appellee.

BIRDSONG, Chief Judge.

Mitchell J. Fagan brought this tort action for injuries received while a patron at Atnalta's establishment, The Beer Mug, and appeals the grant of appellee's motion for summary judgment. On the evening of February 26, 1985, Fagan was one of a few customers in The Beer Mug, where he was dating the waitress. The bar was staffed by a female bartender, a female waitress and a cook. Four customers were playing pool in an area adjacent to, but separate from, an area where Fagan was having a drink. An altercation occurred in the pool room area and the female bartender and waitress attempted to get those involved to leave via the back door. While both sides were still talking at the door, Fagan and another customer by the name of "Bob" gratuitously moved to a place behind the two women. The waitress went to call the police while the bartender tried to escort the belligerent customers outside. One of the men being forced to leave grabbed the bartender by the collar. Fagan grabbed the bartender from the rear to keep her from being pulled outside the bar. The men being forced to leave then turned their attention to the interloper and pulled him outside and administered a severe beating, even though "Bob" tried to assist him. The bartender was emphatic that she did not ask Fagan or Bob to assist her. She was asked if she was glad he was there and responded: "Not really 'cause if he hadn't have been there he wouldn't have gotten beat up so bad."

Appellant contends the defendant was negligent in failing to provide for the safety, security, and welfare of its patrons in the absence of security personnel or even a male employee, and that a history of assault incidents and violent patrons at the bar were evidence of a lack of care owed under OCGA § 51-3-1. Appellee argues that appellant had equal knowledge of the prior assaults and by voluntarily acting in view of his knowledge he assumed the risk incident to the known condition. Appellant knew The Beer Mug was staffed by the two women. He was aware of the prior incidents involving assaults and had been told of other assaults.

Although issues of negligence, lack of care in avoiding the negligence of others, lack of care for one's own safety, and assumption of the risk are ordinarily not susceptible to summary adjudication, either for or against the complainant (Simmons v. Classic City Beverages, 136 Ga.App. 150(2), 220 S.E.2d 734), "where the evidence shows clearly and palpably that the jury could reasonably draw but one conclusion" the issue of assumption of risk may be determined on summary judgment. Union Carbide Corp. v. Holton, 136 Ga.App. 726, 729, 222 S.E.2d 105; accord Myers v. Boleman, 151 Ga.App. 506, 508, 260 S.E.2d 359. The elements of assumption of risk are: (1) a hazard or danger which is inconsistent with the safety of the invitee, (2) the invitee must know and appreciate the danger, and (3) there must be an acquiescence or willingness on the part of the invitees to proceed in spite of the danger. Roberts v. King, 102 Ga.App. 518, 521, 116 S.E.2d 885; accord Abee v. Stone Mountain Mem. Assn., 169 Ga.App. 167, 169, 312 S.E.2d 142, aff'd 252 Ga. 465, 314 S.E.2d 444; Kitchens v. Winter Co. Bldrs., 161 Ga.App. 701, 703, 289 S.E.2d 807.

Appellant was asked: "Q. ... when you approached that group you knew, as you've already stated, that if a fight developed you and Bob would be in big trouble, as you're [sic] phrased it? A. Uh-huh (affirmative). Q. Is that yes? A. Yes. Q. And by big trouble you meant that you felt that you and Bob could be hurt if such a fight took place; is that fair to say? A. Yes." From appellant's own testimony, only one conclusion is permissible. He saw the situation, recognized the danger to himself, and voluntarily and deliberately thrust himself into the melee, without being asked.

" 'The business invitee on private premises assumes the risk of danger of which he knows about and fully comprehends, or which is sufficiently obvious. [Cit.]' 'That which a plaintiff may not do without barring himself from recovery is to accept a risk so obvious that taking it amounts to failure to exercise ordinary care for his own safety, [cit.], or recklessly to test an observed and clearly obvious peril, [cit.]' [Cit.] ' "A person cannot undertake to do an obviously dangerous thing ... without himself being guilty of such lack of due care for his own safety as to bar him from recovery if he is injured...." ' " Holbrook v. Prescott, 166 Ga.App. 588, 589, 305 S.E.2d 156; accord Roberts v. Bradley, 114 Ga.App. 262, 263 150 S.E.2d 720; Kreiss v. Allatoona Landing, 108 Ga.App. 427, 437, 133 S.E.2d 602. Here, the appellant had a clear choice of alternative actions, stay out of the business of the management in expelling disorderly customers or voluntarily assist two female employees attempting to remove four rowdy male patrons from the premises. The appellant deliberately entered into a volatile confrontation between management and patrons. He saw the entire situation in front of him. He had the opportunity to measure the risk and testified that he was aware he would be in "big trouble" if a fight evolved from the confrontation. " ' "In the absence of anything to the contrary, every adult is presumed to possess such ordinary intelligence, judgment, and discretion as will enable him to appreciate obvious danger." ' " Union Carbide, supra 136 Ga.App. at 731, 222 S.E.2d 105. Hence, an adult of ordinary intelligence will be held to be aware of manifest risk or danger of possible injury when he deliberately and voluntarily joins in an affray, as a matter of law. Id.; see also Abee v. Stone Mountain Mem. Assn., 252 Ga. 465, 466, 314 S.E.2d 444, supra; Lundy v. Stuhr, 185 Ga.App. 72, 75, 363 S.E.2d 343; Simmons, supra 136 Ga.App. at 155, 220 S.E.2d 734; Christian v. Vargas, 116 Ga.App. 359, 362, 157 S.E.2d 308; Roberts, supra.

Accordingly, only one conclusion is permissible, that is, appellant saw and recognized the risk, and deliberately interjected himself into the affray after the bartender was grabbed by a customer being ejected. Appellant obviously assumed the risk of injury by voluntarily confronting four rowdy customers being ejected from a bar by management.

We find the evidence clear and palpable that the appellant assumed the risk and the trial court did not err in granting summary judgment to appellee.

JUDGMENT AFFIRMED.

BANKE, P.J., and CARLEY, SOGNIER, POPE and BENHAM, JJ., concur.

DEEN and McMURRAY, P.JJ., and BEASLEY, J., dissent.

DEEN, Presiding Judge, dissenting.

"In the days of chivalry and knighthood, men of courage would joust for the love of a woman. Damsels in distress would be rescued by fearless knights. It was not only a duty, but an honor to give one's life for one in imminent danger.

"The times have changed, like all things, and civilization bellows that chivalry is lost and gone, of another era. The final imprimatur that chivalry is lost in civilization is the courts of our society interpreting the laws to approve of cowardice and strike down the actions of a gallant knight in modern times, for almost having lost his life, in the aid of a damsel in distress."

So begins the appellant's ardent and articulate impassioned brief in support of his motion for rehearing. While the appellant's nostalgic attitude appears to abandon the ancient adage that "virtue is its own reward" in favor of a suit for damages by a patron against "The Beer Mug," it nevertheless provokes reconsideration of our original decision in the appeal. Upon reconsideration, I am persuaded that the doctrine of rescue, as stated in Lorie v. Standard Oil Co., 186 Ga.App. 753, 755, 368 S.E.2d 765 (1988), and Flowers v. Slash Pine, etc., Corp., 122 Ga.App. 254, 258, 176 S.E.2d 542 (1970), is applicable in this case and contraindicates summary judgment for the appellee. Compare this occurrence with Ginn v. Renaldo, Inc., 183 Ga.App. 618, 620, 359 S.E.2d 390 (1987), where a patron, initially an invitee, subsequently became a trespasser, sustained injuries when someone slammed a door on his hand, and brought suit against the nightclub.

BEASLEY, Judge, dissenting.

I respectfully dissent.

1. The majority has decided this case upon an issue not within the contemplation of the parties or the trial court, which in any case should not have been decided as a matter of law and the issues upon which a determination was made below were properly for a jury.

Plaintiff claimed that defendant was negligent in failing to provide for the safety, security and welfare of its patrons in that the absence of security personnel or even a male employee, in soliciting violent patrons, and a history of assault incidents evidenced lack of care owed under OCGA § 51-3-1. During crowded times, normally on weekends, a uniformed policeman was present at closing and there were two bartenders, at least one being male, plus two or three waitresses. There were no fulltime security personnel.

Defendant urged that the record shows plaintiff had equal knowledge of the prior assaults. Therefore, it reasons, he cannot recover for injuries received when he went to the bar, even if defendant was negligent (which it denies). The trial court agreed and, in granting summary judgment, concluded as a matter of law that plaintiff's knowledge of the dangerous condition was at least equal to that of defendant so that by voluntarily going to the bar he is foreclosed from recovery.

Defendant did not argue, nor did the court rule, that there was "equal knowledge" insofar as the danger of becoming involved in the particular incident is concerned, or that in attempting to assist the bartender the patron assumed...