Teems v. Bates, A09A1243.

• Decision Date: 11 September 2009
• Docket Number: No. A09A1243.,A09A1243.
• Parties: TEEMS et al. v. BATES.
• Court: Georgia Court of Appeals

684 S.E.2d 662

300 Ga. App. 70

TEEMS et al. v. BATES.

No. A09A1243.

Court of Appeals of Georgia.

September 11, 2009.

Houck, Ilardi & Regas, Stuart B. Houck, Atlanta, for appellants.

Harper, Waldon & Craig, John B. Craig, Atlanta, for appellee.

BERNES, Judge.

Janna Teems fell and was severely injured while riding on the top of a moving car driven by her teenage friend, Matthew Bates. Teems and her parents subsequently brought this negligence action against Bates for damages. The jury returned a verdict in favor of Bates. On appeal, Teems and her parents contend that the trial court erred in charging the jury on the assumption of the risk doctrine and on the duty imposed upon a guest passenger. They further contend that the trial court erred in allowing defense counsel to cross-examine Teems's father about his own experience holding onto a moving car and to elicit his opinion as to whether he or the driver in that incident was more at fault. Finding no reversible error, we affirm.

Following a jury trial, we view the evidence in the light most favorable to the verdict. DuBois v. Ray, 177 Ga.App. 349, 339 S.E.2d 605 (1985).¹ So viewed, the evidence showed that at approximately 11:00 p. m., Janna Teems, Matthew Bates, and Julia Mercurio drove to a church parking lot. The three were close teenage friends who often spent time together, and they met at the parking lot out of boredom. After they arrived there, Teems came up with the idea of "car surfing" on the top of Mercurio's car. Car surfing is the act of riding on the outside of a vehicle as it is moving. Mercurio and Bates agreed to Teems's idea.

Teems then rode around the parking lot while lying on the top of Mercurio's moving car. Bates watched from his own car. After completing the ride, Teems and Mercurio were exhilarated and were laughing as they approached Bates.

Teems suggested that she and Mercurio car surf on Bates's car. Mercurio was nervous about car surfing on Bates's car, told Teems that she thought it was dangerous, and suggested that they not do it. Nevertheless, Mercurio ultimately agreed to car surf with Teems. They did not discuss how fast Bates would drive or the route he would take, although Bates did tell them that he would be careful while he drove around with them on top of his car.

Teems and Mercurio climbed on top of Bates's car and held onto the open sunroof while lying on their stomachs upon the back windshield. Teems lay on the left side of the roof while Mercurio lay on the right. Bates began to drive around the parking lot at a speed of 10-15 miles per hour, the same speed at which Mercurio had driven previously. Teems, realizing her friend was scared, released her right hand from the sunroof and put it around Mercurio. Bates successfully made one right-hand turn. As he made a second right-hand turn at a sharper angle, however, Mercurio yelled for him to stop, and Teems fell from the car onto the pavement. Teems was severely injured as a result of the fall and required weeks of hospitalization and rehabilitative therapy.

Bates was criminally charged and pled guilty to reckless driving and serious injury by vehicle. Teems and her parents (collectively, "Teems") then brought this damages action against Bates, asserting claims of negligence and negligence per se. The case was tried before a jury, which found in favor of Bates. This appeal followed.

1. Teems contends that the trial court erred in charging the jury on the assumption of the risk doctrine. At the conclusion of the evidence, the trial court gave the following charge:

When a person knowingly and voluntarily takes a risk of physical injury the danger of which is so obvious that the act of taking such risk in and of itself amounts to a failure to exercise ordinary care for one's own safety, that person cannot hold another liable for injuries proximately caused by such action even though the injuries may be in part attributable to the negligence of the other person.

Teems contends that the charge was not authorized because the evidence was insufficient to show that she assumed the risk of falling and injuring herself while car surfing on Bates's car.² We disagree.

"A trial court has a duty to charge the jury on the law applicable to issues which are supported by the evidence," and a party is entitled to a jury charge on a specific issue as long as there is slight evidence to support it. (Citation and punctuation omitted.) Jones v. Sperau, 275 Ga. 213, 214(2), 563 S.E.2d 863 (2002). The slight evidence supporting the charge can be direct or circumstantial. Id. Hence, the pertinent question is whether there was at least slight evidence, direct or circumstantial, to support a charge on the assumption of the risk doctrine in this case. We conclude that there was.

The affirmative defense of assumption of the risk bars recovery when it is established that a plaintiff, 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.

(Punctuation and footnotes omitted.) Muldovan v. McEachern, 271 Ga. 805, 807-808(2), 523 S.E.2d 566 (1999). In the vast majority of cases, the plaintiff's consent to assume the risk is not express but rather is implied by his or her conduct. Young v. Brandt, 225 Ga.App. 889, 891(3), 485 S.E.2d 519 (1997).

Evidence was presented at trial that Teems assumed the risks of car surfing as implied by her conduct. When a person voluntarily undertakes an obviously dangerous activity, that person can be said to have assumed the risks necessarily attendant to that activity. See Roberts v. Carter, 214 Ga.App. 540, 541, 448 S.E.2d 239 (1994) ("[A] person cannot undertake to do what obviously is a dangerous thing . . . without assuming the risks incident thereto and without himself being guilty of such lack of due care for his own safety as to bar him from recovery.") (citations and punctuation omitted). In Lassiter v. Poss, 85 Ga.App. 785, 787-789(1)(b), 70 S.E.2d 411 (1952), we held that a jury question existed over whether the teenage plaintiff who was injured while sitting on the fender of a moving vehicle has assumed the risk of injury from an automobile accident. See also Stone v. Cook, 190 Ga.App. 11, 13-14(1), 378 S.E.2d 142 (1989) (jury question existed over whether employee assumed the risk of injury when he rode on the fender of a moving tractor driven by his employer).³ We discern no ground for distinguishing Teems's riding on the top of a moving vehicle from prior cases involving a person riding on a vehicle fender, an activity that a jury could find was inherently dangerous and posed obvious risks of injury to anyone who participated.

Furthermore, there was testimony that Teems was specifically warned of the dangers of car surfing before she rode atop Bates's car. It is true that Teems did not testify as to her knowledge of the dangers associated with car surfing because she could not remember anything about the incident as a result of her head injuries. But Mercurio testified that when Teems suggested to her that they car surf on Bates's car, she warned Teems that the activity was dangerous and that they should not do it. Mercurio's testimony shows that despite being made aware of the danger involved and being advised against engaging in the activity, Teems voluntarily chose to expose herself to the danger by proceeding to car surf on Bates's moving car.

Nevertheless, Teems argues that the assumption of the risk doctrine does not apply in this case because she was not specifically informed beforehand of the speed at which Bates would drive, the exact route he would drive around the parking lot, or that he would make a sharp right-hand turn. She further argues that the doctrine does not apply because she did not consent to Bates driving around the parking lot in a negligent or reckless manner.⁴ We are unpersuaded.

We have held that when a person goes on a thrill ride at an amusement park or fair, the person necessarily accepts the forces generated by changes in speed and direction as "normal hazards of the amusement device," since those changes are "ordinary, necessary and inherent in the [ride] itself and [are] part of the thrill bargained for." Atlanta Funtown v. Crouch, 114 Ga.App. 702, 712-713(3), 152 S.E.2d 583 (1966). See Jekyll Island State Park Auth. v. Machurick, 250 Ga.App. 700, 701-702(1), 552 S.E.2d 94 (2001). Indeed, "[the ride's] attraction lies in the exhilaration produced by the speed and suddenness of its movements." (Citation and punctuation omitted.) Atlanta Funtown, 114 Ga.App. at 713(3), 152 S.E.2d 583. As such, a person who goes on a thrill ride assumes the risks generated by normal changes in speed and direction associated with the ride. See id.

Car surfing is itself a type of thrill ride. A person who agrees to car surf necessarily accepts the forces generated by changes in the speed and direction of the moving vehicle as normal hazards of the activity that are necessary and inherent in the activity itself and are part of the sought after thrill. See Atlanta Funtown, 114 Ga.App. at 712-713(3), 152 S.E.2d 583. As such, when Teems agreed to car surf, she assumed the risks of changes in speed and direction associated with car surfing, including the risk that she would fall off of the moving vehicle, even if she was never informed of the specific speed or direction Bates planned to drive. See id.

We likewise reject Teems's argument that the evidence had to show that she specifically consented to Bates driving in a negligent or reckless manner in order for her to have assumed the risk of falling and being injured. As an initial matter, we note...