McEachern v. Muldovan

Andrews, Chief Judge,

concurring in part and dissenting in part.

The facts of this tragic case show that the deceased, Michael McEachern, age 17, and his friend, Michael Muldovan, also a minor, were engaged in a deadly game of chance wdth a loaded revolver. On or about July 22, 1993, while both of them were under the influence of alcohol at a party with other friends, McEachern and Muldovan passed a revolver back and forth pointing it at each other and pulling the trigger. McEachern was seen loading and unloading the revolver, so it is unclear whether the revolver was loaded or unloaded at any point during this initial period of time. At some point, however, while McEachern and Muldovan were sitting at a table, McEachern put a single bullet in the revolver. The evidence is disputed as to whether Muldovan knew the revolver was loaded with the bullet, but for purposes of reviewing the trial court’s decision on summary judgment, it will be assumed that Muldovan was aware of this fact. McEachern pointed the loaded revolver at Muldovan’s head and pulled the trigger. The revolver did not discharge, and McEachern handed the *169revolver to Muldovan. Muldovan pointed the revolver at McEachern’s head and pulled the trigger. The revolver did not discharge, and McEachern told Muldovan to pull the trigger again. Muldovan pulled the trigger again and the revolver discharged, killing McEachern with a bullet wound to the head.

Other evidence showed that prior to the party, Muldovan or Muldovan and McEachern together purchased the revolver from Ben Graham.

McEachern’s parents and the administratrix of his estate sued Muldovan claiming that he negligently shot and killed McEachern, that his actions constituted a battery, and that he acted wantonly and recklessly. They also sued Graham claiming that he negligently sold the revolver to a minor in violation of former OCGA § 16-11-101 and that this constituted wanton and reckless conduct.1

The McEacherns and the administratrix appealed from the trial court’s grant of summary judgment in favor of Muldovan and Graham. Because the facts plainly and indisputably establish that McEachern voluntarily engaged in and consented to the above described actions, he assumed the risk that the revolver would discharge and that he would be shot and killed.

Accordingly, I fully concur with the majority that McEachern assumed the risk that the plaintiffs’ claims against Muldovan based on negligent conduct are barred. I also fully concur with the majority that the long-standing doctrine of voluntary intoxication, as it applies to assumption of the risk, remains viable. I dissent, however, from the majority’s conclusion that Muldovan was not entitled to summary judgment for wilful and wanton misconduct on the basis of assumption of the risk.

This Court stated the correct rule in Roberts v. King, 102 Ga. App. 518 (116 SE2d 885) (1960): “Where one assumes the risk of wilful and wanton misconduct and is injured or killed thereby a cause of action for such injury or death is barred. Code § 105-1803 [now codified as OCGA § 51-11-2]. The true defense in these cases is the doctrine of assumption of the risks. This doctrine has sometimes been mistakenly referred to as contributory negligence. In the cases in which this has been done the term contributory negligence truly means assumption of risk or consent to the injury for the reason that in such cases the so-called contributory negligence would not necessarily have barred the action where wilful and wanton misconduct was involved, whereas the assumption of risk doctrine would have. . . . Even where the defendant’s act is such, by reason of its *170wantonness or otherwise, as to cut off the defense of contributory negligence, the plaintiff can not recover, if it appears that he consented to the injury. Insofar as cases like the instant case are concerned we can see no difference between the consent principle and the principle of assumption of risk. The doctrine of assumption of risk in general is of recent development, but has been applied to Georgia under the consent doctrine. . . . 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.” (Citations and punctuation omitted; emphasis supplied.) Id. at 520-521.

As set forth in Roberts, the Georgia doctrine of assumption of risk embodies the principle that one may consent to conduct which causes injury, whether that conduct be negligent, wilful, or wanton. This consent principle is set forth by statute in OCGA § 51-11-2 (former Code § 105-1803), as cited in Roberts, 102 Ga. App. at 520. The statute provides that: “As a general rule no tort can be committed against a person consenting thereto if that consent is free, is not obtained by fraud, and is the action of a sound mind. The consent of a person incapable of consenting, such as a minor, may not affect the rights of any other person having a right of action for the injury.” OCGA § 51-11-2.

The statute precludes consent by a minor incapable of giving such consent, but does not preclude consent by a minor capable of consenting. Wittke v. Horne’s Enterprises, 118 Ga. App. 211, 215, n. 2 (162 SE2d 898) (1968). A minor 17 years of age, like McEachern in the present case, is not treated as a child of tender years incapable of giving consent, but is a person capable of consenting as an adult and chargeable with the exercise of ordinary diligence. Id.; Redding v. Morris, 105 Ga. App. 152 (123 SE2d 714) (1961); compare Wood v. Morris, 109 Ga. App. 148, 149-150 (135 SE2d 484) (1964) (minor of tender years incapable of giving consent under OCGA § 51-11-2 (former § 105-1803)).

Moreover, OCGA § 51-11-2 provides that “no tort can be committed against a person consenting thereto. . . .” (Emphasis supplied.) The statute is not limited to negligent torts; rather it clearly encompasses all torts including those based on wilful, wanton, or intentional misconduct. Jarrett v. Butts, 190 Ga. App. 703, 704-705 (379 SE2d 583) (1989) and Spikes v. Heath, 175 Ga. App. 187, 189-190 (332 SE2d 889) (1985) (recognizing the application of the consent defense of § 51-11-2 to intentional tort claims of assault and battery); J. H. Harvey Co. v. Speight, 178 Ga. App. 812, 813-814 (344 SE2d 701) (1986) (concluding that the consent provisions of § 51-11-2 precluded a claim for the intentional tort of assault and battery); Crowley v. Ford Motor Credit Co., 168 Ga. App. 162 (308 SE2d 417) (1983) *171(applying the consent defense under § 51-11-2 to affirm the grant of summary judgment to a defendant sued for the intentional tort of conversion); Roberts, 102 Ga. App. at 520-523 (holding that the consent defense set forth in § 51-11-2 was a defense to a claim for wilful and wanton misconduct); see also Adams & Adams, Ga. Law of Torts (1997 ed.), § 2-8 (citing the consent provisions of § 51-11-2 as a defense to intentional torts).

A close examination of cases cited by the majority shows that they are not persuasive authority on the issue of whether McEachern is barred from recovery under the consent principle embodied in the assumption of risk defense:

(a) In Hendricks v. Southern Bell Tel. &c. Co., 193 Ga. App. 264, 266 (387 SE2d 593) (1989), cited by the majority, the Court stated that assumption of the risk was not a defense to an intentional tort such as battery. The only authority cited by Hendricks for this statement was Harvey Freeman & Sons v. Stanley, 259 Ga. 233, 234-235 (378 SE2d 857) (1989), also cited by the majority. In Stanley, the Supreme Court addressed the application of GCGA § 51-11-7 to a claim of intentional versus negligent acts. Although Stanley loosely characterizes § 51-11-7 as a statute on “assumption of risk/avoidance doctrine,” it is clear that in citing the statute the Court was addressing the avoidance of danger aspect of contributory negligence set forth in § 51-11-7. See Union Camp Corp. v. Helmy, 258 Ga. 263, 267 (367 SE2d 796) (1988) (recognizing that § 51-11-7 sets forth principles of contributory negligence and comparative negligence).

(b) Terrell v. Hester, 182 Ga. App. 160-161 (355 SE2d 97) (1987), cited by the majority, states only that a charge on OCGA § 51-11-7 is not appropriate in an intentional tort case. Terrell recognized that § 51-11-7 was the Georgia comparative negligence statute and that § 51-11-2 embodied the assumption of risk and consent principles set forth in Roberts, 102 Ga. App. 518.

(c) Hopkins v. First Union Bank &c., 193 Ga. App. 109, 111 (387 SE2d 144) (1989) is cited by the majority for its holding that “[i]t is well-settled that the defenses of comparative negligence, negligence per se, assumption of the risk and contributory negligence are not valid defenses to intentional, wilful, or wanton and reckless torts.” Hopkins cited seven cases to support this broad statement. Six of the cited cases contained no holdings that assumption of the risk was not a defense to intentional, wilful, or wanton and reckless torts. The seventh case cited in Hopkins was Intl. Assn. of &c. Iron Workers, Local 387 v. Moore, 149 Ga. App. 431, 436 (254 SE2d 438) (1979), a case also cited by the majority. In concluding, the trial court properly refused to give two jury charges which were characterized as involving plaintiff’s alleged assumption of the risk; Moore held only that contributory negligence is not a defense to an alleged wilful tort. Id. *172at 436.

(d) Barrow v. Ga. &c. Aggregate Co., 103 Ga. App. 704, 705 (120 SE2d 636) (1961), disapproved on other grounds, OB-GYN Assoc. of Albany v. Littleton, 259 Ga. 663, 667 (386 SE2d 146) (1989), cited by the majority, held only that the contributory negligence of the plaintiff is not a defense to a wilful tort.

(e) Williams v. Knight, 211 Ga. App. 420-421 (439 SE2d 507) (1993), cited by the majority, stated that assumption of the risk was not a valid defense to intentional, wilful, reckless, or wanton torts, but the only authority cited in support of this statement was Hopkins, supra, and Hendricks, supra.

Contrary to the contention of the majority, Roberts, 102 Ga. App. 518, which addresses the relationship of the consent principle in OCGA § 51-11-2 to assumption of the risk is the better reasoned authority supporting the rule that the plaintiff’s assumption of risk will bar an action alleging wilful and wanton misconduct by the defendant. See also Sewell v. Dixie Region Sports Car Club &c., 215 Ga. App. 611, 612 (451 SE2d 489) (1994) and Newman v. Collins, 186 Ga. App. 595, 596 (367 SE2d 866) (1988) (assumption of risk will bar plaintiff’s action even though there was wilful and wanton misconduct on defendant’s part).

The close relationship of the consent principle set forth in OCGA § 51-11-2 with assumption of risk is also recognized in the Restatement of the Law, Second, Torts 2d. The introductory note to Restatement of the Law, Torts 2d, Chapter 17A, Assumption of Risk, states that: “[This Chapter] is concerned only with the plaintiff’s assumption of the risk arising from the defendant’s negligent or reckless conduct. As to the plaintiff’s consent to accept harm or a risk arising from the defendant’s intentional conduct, see § 892.” Section 892A (1) of Restatement of the Law, Torts 2d, provides that: “One who effectively consents to conduct of another intended to invade his interests cannot recover in an action of tort for the conduct or for harm resulting from it.” The comment to subsection (1) explains that “[t]his principle is expressed in the ancient legal maxim, volenti non fit injuria, meaning that no wrong is done to one who consents. . . . The consent is to conduct but is confined to conduct that the plaintiff knows the other is engaging in with the intent of invading the plaintiff’s interests. ... A similar principle is applied to acts that are not intended to invade the plaintiff’s interests but merely create a risk of the invasion, so that they are negligent with respect to it. This principle is called assumption of risk in this Restatement. (See Chapter 17A, §§ 496A-496G).”

Similarly, Restatement of the Law, Second, Torts 2d, § 892C (1) provides that “consent is effective to bar recovery in a tort action although the conduct consented to is a crime.” The rationale for the *173rule is set forth in comments to the section: “In addition to the usual rule that consent to the conduct complained of bars recovery in a tort action stated in § 892A, there is the further fact that the plaintiff by his consent has participated in[,] or at least encouraged, the commission of the crime and so is himself at fault and acting contrary to the policy of the law concerning the very matter of which he complains, so that he has little standing before the court from which he seeks redress.” Comment b.

Decided July 31, 1998 Reconsiderations dismissed and denied September 1, 1998 Hugh Gordon, Brian L. Causey, for appellants. Reinhardt, Whitley & Wilmot, Glenn Whitley, for appellee (case no. A98A0621). Walters, Davis & Pujadas, J. Harvey Davis, for appellee (case no. A98A0622).

The principle of consent embodied in the Georgia rule of assumption of risk, as set forth in Roberts, 102 Ga. App. 518, and OCGA § 51-11-2, and the similar principle recognized in the Restatement (Second) of Torts, fit squarely with the facts of this case. McEachern gave full consent to Muldovan’s intentional conduct toward him with knowledge of the obvious risks. Whether Muldovan’s conduct is characterized as negligent, wilful and wanton, or intentional, it cannot be the basis for a tort claim against Muldovan because McEachern clearly consented to it.

As to the claim against Graham in Case No. A98A0622,1 agree with the conclusion reached by the majority that the trial court erred by granting summary judgment in favor of Graham, but I do not agree with all that is stated by the majority in reaching this conclusion.

I am authorized to state that Presiding Judge Pope and Judge Beasley join in this partial concurrence and partial dissent.

The plaintiffs also sued other defendants claiming they negligently furnished alcoholic beverages to minors. None of these defendants is involved in this appeal.