Ramsey v. Mercer

• Decision Date: 13 July 1977
• Docket Number: No. 3,No. 54194,54194,3
• Parties: W. K. RAMSEY v. C. S. MERCER, Jr
• Court: Georgia Court of Appeals

Page 450

237 S.E.2d 450

142 Ga.App. 827

W. K. RAMSEY v. C. S. MERCER, Jr.

No. 54194.

Court of Appeals of Georgia, Division No. 3.

July 13, 1977.

Fred L. Cavalli, Atlanta, for appellant.

Neely, Neely & Player, Edgar A. Neely, Jr., John W. Winborne, III, Atlanta, for appellee.

WEBB, Judge.

William Kenneth Ramsey brought suit against Charles S. Mercer, Jr. for lost wages, medical expenses and $100,000 damages for pain and suffering, alleging that while he was attending a party at Mercer's residence at the invitation of Mercer's daughter he was shot in the stomach by another person at the party with a .22 caliber pistol belonging to Mercer; that the direct and proximate cause of the shooting was the careless and grossly negligent manner in which Mercer left loaded weapons lying around his home with blatant and callous disregard for the safety of other people; and that Mercer knew, or in the exercise of ordinary care should have known, that loaded weapons are inherently dangerous and that such actions constitute negligence per se.

Mercer answered, denying any liability, and subsequently filed a motion for summary judgment based upon five grounds: (1) that there was intervening negligence sufficient to relieve him of liability even if he were negligent; (2) that Ramsey failed to exercise ordinary care for his own safety; (3) that Ramsey assumed the risk of any injury; (4) that because Ramsey had knowledge of any dangers allegedly existing, Mercer owed him no duty with respect to the alleged dangers; and (5) that he was neither the owner nor occupier of the premises within the meaning of Code § 105-401. The trial court granted Mercer's motion for summary judgment, Ramsey appeals, and we affirm.

The facts before the trial court demanded that summary judgment be granted. On June 15, 1975, Mercer, his wife and all of their children with the exception of 18-year-old Carol Anne went on a two-day trip to Florida. Carol Anne, who was employed as a cashier at a Bonanza Steak House, stayed at home with a friend who was going to spend the night with her. After she left the restaurant that evening several friends came over to her house including the appellant, 18-year-old Ken Ramsey, who also worked at Bonanza. Ramsey left but returned to the Mercer residence at approximately midnight. There was some drinking going on and Ramsey had had five or six beers at his apartment before returning to the party. There were a number of rifles, pistols and other weapons in the house. A friend of Ramsey's, Dennis Graef, picked up a BB pistol and a .22 caliber western style pistol which were lying on the mantel over the fireplace in the family room. Subsequent events are described by Ramsey in testimony from his deposition:

"I was sitting on the couch and he (Graef) walked over and I said, 'Let me see those guns,' and he handed me, apparently the .22 caliber first, the one that shot me. I looked at it and it looked as though it was an antique reproduction of some type gun. I looked to see if there was any way of opening the gun or if it was loaded or whatever and I couldn't see any apparent way, so I handed the gun back to him and I looked at the BB pistol, which was the other pistol. It had a CO2 cartridge in it and it appeared not to be loaded either, couldn't hear any BB's or anything rattling in it. Dennis walked across and sat back down in the chair, across the room, and I believe he had snapped a cylinder at some other object before he snapped it at me. He snapped it across the room at me once or twice. At that point I jumped up and ran around into the hallway, which was right at the corner of the couch and snapped the pistol I was holding back at him. At some point I ran across the room and Carol Mercer was standing in the living room and he had jumped up to run across and intercept me. I was behind Carol and he was in front of Carol. Both of us was reaching around snapping the cylinders. I was reaching over Carol and he was reaching up under her or around her from underneath and we heard a shot go off." At that time Ramsey was shot in the stomach by a .22 caliber bullet.

Ramsey was familiar with weapons, having owned a shotgun since he was fifteen and a .357 magnum pistol which was given to him for his eighteenth birthday. He also carried a pistol when making bank deposits in connection with his job at Bonanza. At the time of the incident, title to the Mercer residence was in Mrs. Mercer.

1. Ramsey relies upon Code § 105-401 which provides that an owner or occupier of land may be liable in...