McNamee v. AJW

• Decision Date: 11 June 1999
• Docket Number: No. A99A0502.,A99A0502.
• Citation: 519 S.E.2d 298,238 Ga. App. 534
• Parties: McNAMEE et al. v. A.J.W., a minor, et al.
• Court: Georgia Court of Appeals

519 S.E.2d 298

238 Ga. App. 534

McNAMEE et al. v. A.J.W., a minor, et al.

No. A99A0502.

Court of Appeals of Georgia.

June 11, 1999.

Chambers, Mabry, McClelland & Brooks, Genevieve L. Frazier, Christopher K. Annunziata, Atlanta, for appellants.

Dean, Smith & Therrell, John R. Burdges, Peter R. Roberts, Atlanta, for appellees. BLACKBURN, Presiding Judge.

Upon our grant of their application for interlocutory appeal, the defendants, Don McNamee and Lynda McNamee, and their son, Steven McNamee, a minor, appeal the denial of their motion for summary judgment by the trial court. Gordon and Louisa Wiles, and their daughter, A.J.W., a minor, nine months junior to Steven, brought the underlying civil action seeking damages against Steven's parents for negligence and furnishing alcohol to A.J.W. and against Steven for sexual battery, rape, negligence, and furnishing alcohol to A.J.W. At the time of the subject incident, both A.J.W. and Steven were in the tenth grade in high school.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56(c). A de novo standard of review applies to an appeal from a grant or denial of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

(Punctuation omitted.) Urban v. Lemley, 232 Ga.App. 259, 501 S.E.2d 529 (1998).

Construing the facts most favorably to A.J.W. and her parents, on November 26, 1996, 15-year-old A.J.W. went home after school with Steven, who had just recently turned 16 years old. Although A.J.W. told her parents that she was going to Steven's house to study, she actually went there to drink beer and to "show everybody that [she] wasn't such a goody two-shoes like everybody thought." A.J.W. states that she, Steven, and Rusty, another male friend, drank alcoholic beverages and smoked marijuana. After voluntarily consuming two and one-half Zimas and taking "shotgun hits" of marijuana, A.J.W. does not remember what happened until she woke up naked in a bedroom closet. A.J.W. deposed that while she does not remember him being there, her boyfriend told her that he came over to Steven's house while she was naked and in the closet. The record does not contain any testimony from A.J.W.'s boyfriend.

When she woke up, Steven told A.J.W. that his father had come home, taken Rusty to his alcohol/probation meeting, and returned. A.J.W. admits that rather than reporting what took place to Steven's father, she sneaked out of the house with Steven and they walked to her home. A.J.W. was wearing Steven's pants and his mother's underwear. Steven agrees with A.J.W.'s version of what occurred after his father arrived home. Upon arriving home, A.J.W. did not report to her parents any of the events that had occurred. The day after the incident, Steven, Rusty, and another male friend went to A.J.W.'s place of employment and threw her panties over the counter at her. A.J.W. averred that she learned about the sexual relations with Steven when Rob Elkins called her on the telephone to tease her about losing her virginity. The record does not contain any testimony from Rob Elkins. A.J.W.'s parents found out about the incident from a parent of one of A.J.W.'s friends a week after it happened and initiated civil and criminal action.

Steven avers that A.J.W. voluntarily participated in the drinking, the smoking, and having sex with him. He contends that A.J.W. initiated oral sex and asked him to have sexual intercourse with her. He went upstairs and got a condom and asked her several times if she was sure she wanted to have sex. He avers that after they had sex, A.J.W. did not feel well and she lay down on his bedroom floor to sleep. Later, she vomited on her clothes and then took a shower before he walked her home.

Although A.J.W. deposed that she was under the impression that Steven's father had purchased the beer for Steven, Steven averred that his parents did not know that he had alcohol in the house. Steven contends that Rusty had provided both the alcohol and marijuana, which he hid in the unfinished basement of the house. The record does not contain any testimony from Rusty.

1. The McNamees contend that as a matter of law, under the facts herein, they cannot be held civilly liable for negligence resulting from any actions of Steven against A.J.W., if proved.

It is well settled that by common law and in this state unless changed by statute, parents are not liable in damages for the torts of their minor children merely because of the parent-child relationship[;] when liability exists it is based on a principal-agent or a master-servant relationship where the negligence of the child is imputed to the parent, or it is based on the negligence of the parent in some factual situation such as allowing the child to have unsupervised control of a dangerous instrumentality. Corley v. Lewless, 227 Ga. 745, 182 S.E.2d 766 (1971).... As stated in Assurance Co. of America v. Bell, 108 Ga.App. 766, 134 S.E.2d 540 (1963) the true test of parental negligence vel non is whether in the exercise of ordinary care [the parent] should have anticipated that harm would result from the unsupervised activities of the child and whether, if so, [the parent] exercised the proper degree of care to guard against this result.

Hill v. Morrison, 160 Ga.App. 151, 286 S.E.2d 467 (1981).

Under the facts in this case, Steven's parents cannot be civilly responsible based solely upon his actions in having sex with a 15-year-old girl in their home, without their knowledge, while they were not home. We have previously declined to place a duty on parents to arrange for supervision of their teenagers while they are away from home. See Manuel v. Koonce, 206 Ga.App. 582, 585(1)(b), 425 S.E.2d 921 (1992), rev'd on other grounds, Riley v. H & H Operations, 263 Ga. 652, 655, n. 3, 436 S.E.2d 659 (1993). The evidence in the record indicates that Steven's parents had no reason to suspect that he was engaging in the activities in question while they were at work. Therefore, the trial court erred in denying Don and Lynda McNamee's motion for summary judgment on the plaintiffs' negligence claims.

2. The McNamees contend that they are entitled to summary judgment on the plaintiffs' claims of serving alcohol to a minor. OCGA § 51-1-18(a) provides: "The custodial parent or parents shall have a right of action against any person who shall sell or furnish alcoholic beverages to that parent's underage child for the child's use without the permission of the child's parent."

(a) The McNamees contend that the uncontroverted evidence establishes that Rusty Shipman purchased and delivered the alcohol. Although A.J.W. deposed that Steven said his father had purchased the beer for Steven to drink, the McNamees' contention that A.J.W.'s testimony is hearsay is correct.

The admission by a party to the record shall be admissible in evidence when offered by the other side, except in the following cases ... (2) Admissions of one of several parties with no joint interest, unless the issue is of such a character that the effect of the admission can be confined to the one party alone.

OCGA § 24-3-31.

In the case of joint defendants, the admission of one is admissible to establish the plaintiff's case against that defendant. Moore v. McAfee, 151 Ga. 270(7), 106 S.E. 274 (1921). And, upon independent proof of a joint interest, the admissions of one party may be given in evidence to bind the other parties as well.

Kirk v. Barnes, 147 Ga.App. 423, 424(1), 249 S.E.2d 140 (1978). Therefore, because the plaintiffs have brought separate causes of action against the McNamees and Steven, these defendants do not have joint interests in this litigation and Steven's alleged remarks remain inadmissible hearsay.

(b) The McNamees contend that even if Don McNamee purchased the beer, they did not "provide" it to A.J.W. within the meaning of the statute. We agree.

It is undisputed that Steven's parents were not at home when A.J.W. came over to their house, and they were unaware that A.J.W. would be coming to their house. Additionally, Steven and A.J.W. sneaked out of the house after Steven's father came home.

This case is distinguishable from Eldridge v. Aronson, 221 Ga.App. 662, 472 S.E.2d 497 (1996), wherein we reversed the grant of summary judgment to the defendants in an action for damages pursuant to OCGA § 51-1-18. In Eldridge, Mrs. Aronson purchased beer for her son's party, was present during the party, and also helped serve the beer to her son's guests. Although Mr. Aronson was not present during the party this Court determined that he could be held responsible because the evidence showed that he had served alcohol to high school students on several previous occasions.

In the present case, there is no evidence that the McNamees had previously provided beer or alcohol to Steven and his friends. Additionally, there is no evidence that the McNamees "provided" alcohol to A.J.W. within the meaning of the statute. Therefore, the trial court erred in denying the McNamees' motion for summary judgment on the plaintiffs' claim based upon furnishing alcohol to a minor.

3. Steven contends that A.J.W.'s alleged consent can be used as an absolute defense in the present civil action against him. In determining this issue, we must keep in mind two distinguishing facts of this case: (1) that both the plaintiff/victim and defendant/offender were minors; and (2) that the action is one for monetary civil damages, not involving public policy considerations protected by criminal statutes.

The plaintiffs contend that consent can never be used as a defense for the sexual battery/rape of a person under the age of 16. Consent is not a defense to a criminal statutory rape charge under OCGA § 16-6-3.¹ However, under Georgia law

[t]he violation of a penal statute does

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