McEachern v. Muldovan

• Decision Date: 31 July 1998
• Docket Number: No. A98A0622., No. A98A0621
• Citation: 505 S.E.2d 495,234 Ga. App. 152
• Parties: McEACHERN et al. v. MULDOVAN. McEACHERN et al. v. GRAHAM.
• Court: Georgia Court of Appeals

505 S.E.2d 495

234 Ga. App. 152

McEACHERN et al. v. MULDOVAN.

McEACHERN et al. v. GRAHAM.

Nos. A98A0621, A98A0622.

Court of Appeals of Georgia.

July 31, 1998.

Reconsiderations Dismissed and Denied September 1, 1998.

Certiorari Dismissed and Denied January 12, 1999.

Hugh Gordon, Tifton, Brian L. Causey, for appellants.

Reinhardt, Whitley & Wilmot, Glenn Whitley, Tifton, for appellee (case no. A98A0621).

Walters, Davis & Pujadas, J. Harvey Davis, Ocilla, for appellee (case no. A98A0622). JOHNSON, Presiding Judge.

This is an appeal from the grant of summary judgment to defendants Michael Muldovan and Benjamin Graham. The plaintiffs are Marie McEachern and Paul Michael McEachern, the parents of the decedent Michael McEachern, individually, and Marie McEachern as temporary administratrix of the estate of the decedent. For the reasons discussed below, the grant of summary judgment as to intentional tort and wilful and wanton conduct counts in Case No. A98A0621 must be reversed. The grant of summary judgment in Case No. A98A0622 also must be reversed because there exists a genuine issue of material fact as to issues of foreseeability and remoteness. The grant of summary judgment to Muldovan as to the negligence counts in Case No. A98A0621 is affirmed.

Defendant Michael Muldovan and Michael McEachern (McEachern) were best friends. One evening, these two seventeen-year-olds and others gathered at the home of a friend. Muldovan and McEachern, along with other teenagers present, were drinking alcoholic beverages. During the evening, McEachern and others left the residence to obtain more alcoholic beverages and returned with still more friends.

McEachern possessed a handgun that evening which previously had been sold by Graham to Muldovan, a minor. He was showing it, pointing it, and operating its mechanism in the presence of the others. This conduct occurred before McEachern left the residence, while he was away from the residence, and again upon his return to the residence. His conduct was apparently such that several teenagers became concerned about the manner in which he was handling the handgun.

During the trip for more alcohol, a temporary stop was made at another residence where McEachern showed the handgun to Stephanie Cronin. Cronin was initially frightened by the handgun but became reassured when McEachern told her it was not loaded and that the bullets were in his pocket. After returning to the gathering, McEachern took out the handgun and started pulling the hammer back—pointing it at different people and objects and snapping the trigger. Cronin again expressed her concerns to McEachern, and he again told her there were no bullets in the handgun. Cronin grabbed the handgun and ran outside. McEachern followed and regained possession of the handgun. Both Cronin and Muldovan told McEachern to put the handgun away because he was scaring people.

Some time later, Cronin, Muldovan, McEachern and two other teenagers sat around a small kitchen table in the residence. McEachern again displayed the handgun. He and Muldovan began to pass it back and forth, pointing it at each other and snapping the trigger. McEachern would load and unload the handgun. Cronin again expressed concern about how the handgun was being handled, and Muldovan opened the chamber to show her that it was not loaded.

McEachern left the table with the handgun tucked in his waist and the bullets in his pocket. When he returned, he loaded the handgun, pointed it at Muldovan's head and pulled the trigger. There is conflicting evidence whether Muldovan saw McEachern put a bullet in the chamber of the handgun. McEachern handed the handgun to Muldovan who pointed the handgun at him and pulled the trigger. McEachern told Muldovan to do it again. When Muldovan pulled the trigger again, the handgun fired, fatally wounding McEachern.

This action for damages arises from the death by gunshot wound of Michael McEachern. The amended complaint alleges that Muldovan fired the fatal shot and states claims against him based on negligence, the intentional tort of battery, and wanton and reckless conduct. Claims are asserted against Benjamin Graham based on negligence and wanton and reckless conduct by furnishing a pistol to a minor. These appeals are taken only from the grant of summary judgment to Muldovan, Case No. A98A0621, and Graham, Case No. A98A0622.

1. "Perhaps more than any other branch of the law, the law of torts is a battleground of social theory. Its primary purpose, of course, is to make a fair adjustment of the conflicting claims of the litigating parties.... The influence of public policy on tort law is apparent, and most likely to be controversial, when it comes to bear upon a proposed change that is accomplished by overruling an established precedent." Prosser & Keeton, on Law of Torts (5th ed.), Introduction, Policy & Process, pp. 15-16, § 3. Society has an interest in the outcome of cases: first, in having a single dispute between individuals resolved in a fair and timely manner; and secondly, because of the system of precedent on which the entire common law is based. Id. at p. 16. "Under this system, a rule once laid down is to be followed until the courts find good reason to depart from it." Id. Accordingly, courts should "make a conscious effort to direct the law along lines which will achieve a desirable social result, both for the present and for the future." Id. With this sage and long-standing principle in mind, we address the relevant issues under consideration in this case.

In Georgia, the doctrine of contributory negligence developed from two century-old statutes, now codified as OCGA §§ 46-8-291 and 51-11-7. OCGA § 51-11-7 (formerly Ga.Code Ann. § 105-603; Orig.Code 1863 § 2914) provides: "If the plaintiff by ordinary care could have avoided the consequences to himself caused by the defendant's negligence, he is not entitled to recover. In other cases the defendant is not relieved, although the plaintiff may in some way have contributed to the injury sustained." (Emphasis supplied.) OCGA § 51-11-7 historically has been interpreted as stating two different rules: one is the duty of a person to avoid injury to himself by the exercise of ordinary care, and the second provides for a recovery where the negligence of the plaintiff partially contributes to the injury. Editorial note to Ga.Code Ann. § 105-603. It is primarily from this statute that the doctrine of assumption of the risk evolved, after first being viewed as a special type of contributory negligence. See generally Roberts v. King, 102 Ga.App. 518, 521(1), 116 S.E.2d 885 (1960); 57B AmJur2d, Negligence, §§ 1377-1378. Georgia still follows the traditional view that assumption of risk is a separate defense from comparative negligence which, when applicable, exculpates the defendant. Id. at § 1380.

"The affirmative defense of assumption of the risk bars a plaintiff from recovering on a negligence claim if it is established that he[,] without coercion of circumstances, chooses a course of action with full knowledge of its danger and while exercising a free choice as to whether to engage in the act or not. In Georgia, a defendant asserting an assumption of the risk defense must establish that the plaintiff (1) had actual knowledge of the danger; (2) understood and appreciated the risks associated with such danger; and (3) voluntarily exposed himself to those risks.

"Knowledge of the risk is the watchword of assumption of risk and means both actual and subjective knowledge on the plaintiff's part. The knowledge that a plaintiff who assumes a risk must subjectively possess is that of the specific, particular risk of harm associated with the activity or condition that proximately causes injury.... In its simplest and primary sense, assumption of the risk means that the plaintiff, in advance, has given his consent to relieve the defendant of an obligation of conduct toward him, and to take his chances of injury from a known risk arising from what the defendant is to do or leave undone." (Citations and punctuation omitted; emphasis in original and supplied.) Vaughn v. Pleasent, 266 Ga. 862, 864(1), 471 S.E.2d 866 (1996). "Assumption of risk in its simplest and primary sense means that the plaintiff has given his express consent to relieve the defendant of an obligation of conduct toward him and to take his chance of injury from a known risk. The result is that the defendant is simply under no legal duty to protect the plaintiff. A second, and closely related meaning, is that the plaintiff, with the knowledge of the risk has entered voluntarily into some relation with the defendant which necessarily involves it, and so is regarded for tacitly or impliedly agreeing to take his own chances.... [A]ssumption of risk is a matter of knowledge of the danger and intelligent acquiescence in it, while contributory negligence is a matter of some fault or departure from the standard of reasonable conduct, however unwilling or protesting the plaintiff may be. The two may co-exist, or either may exist without the other. The difference is frequently one between risks which were in fact known to the plaintiff, or so obvious that he must be taken to have known of them, and risks which he merely might have discovered by the exercise of ordinary care." (Citation and punctuation omitted.) Roberts, supra at 521(1), 116 S.E.2d 885.

While the doctrine of assumption of the risk was developing in this state, the totally separate concept of voluntary intoxication was being formulated based on entirely different legal and policy considerations. "The whole theory of negligence presupposes some uniform standard of behavior." Prosser & Keeton, supra at p. 173, § 32. In forging the requisite standard of conduct in negligence cases, mental capacity of the actor generally was an external consideration. "`The law', says Mr. Justice Holmes ..., `takes no account of the infinite...