Morris v. Baxter

McMurray, Presiding Judge,

dissenting.

I respectfully dissent from the affirmance of summary judgment on the ground that defendant John Baxter’s behavior in leaving a loaded rifle in plain view of his mentally disturbed lady friend, plaintiff’s decedent Deborah Easterwood, cannot be a proximate cause of Easterwood’s suicide. As a majority of this Court recently recognized, “there may be more than one proximate cause of an injury. Church’s Fried Chicken v. Lewis, 150 Ga. App. 154, 157 (1) (B) (256 SE2d 916) (1979).” Coweta County v. Adams, 221 Ga. App. 868, 870 (2), 871 (473 SE2d 558) (1996). Unlike the majority, I would hold a jury is authorized to conclude that defendant breached a common law duty of care, and that harm to some one is a reasonably foreseeable consequence of that breach of duty. This Court previously quoted approvingly from Howard Brothers of Phenix City, Inc. v. Penley, 492 S2d 965 (Miss. 1986). There, the Supreme Court of Mississippi held: “In *189this state, in this day and age we are simply not going to assert that there is no common law duty, aside from statute, for a dealer in firearms to have in effect in his place of business some safety precautions and procedures designed to prevent [a patron from being taken hostage by a mentally disturbed customer].” Howard Brothers ofPhenix City, Inc. v. Penley, supra at 967 [1], 968. Citing extensively from that opinion, this Court subsequently reasoned: “That loaded rifles are especially dangerous and life threatening when possessed by mentally disturbed people is a matter of common knowledge. . . .” (Citations and punctuation omitted.) West v. Mache of Cochran, Inc., 187 Ga. App. 365, 366 (1), 369 (370 SE2d 169). I fully recognize that defendant here is simply a gun owner and not a firearms dealer, and that this is not a negligence per se situation. Yet, this defendant knew enough to hide or disarm the rifle when children were about. Human reasoning and foresight applied to common experience raises the question whether Deborah Easterwood’s schizophrenia rendered her so childlike that she deserved and required that extra care and attention proportionate to her diminished understanding, especially when confronting the allegations recently made by decedent’s sister against defendant, decedent’s longtime gentleman friend. “If the damage incurred by the plaintiff is only the imaginary or possible result of a tortious act or if other and contingent circumstances preponderate in causing the injury, such damage is too remote to be the basis of recovery against the wrongdoer.” OCGA § 51-12-8. On the other hand, “Damages which are the legal and natural result of the act done, though contingent to some extent, are not too remote to be recovered. However, damages traceable to the act, but which are not its legal and natural consequence, are too remote and contingent to be recovered.” OCGA § 51-12-9. In my view, under the particular facts and circumstances of the case sub judice, a jury should determine whether defendant John Baxter’s carelessness in leaving a loaded rifle in plain view of a disturbed young woman was too remote under OCGA §§ 51-12-8 and 51-12-9 to permit recovery for decedent’s suicide. See Spires v. Goldberg, 26 Ga. App. 530, hn. 2, 3 (106 SE 585).

Decided March 5,1997. Deming, Parker, Hoffman, Green & Campbell, Paul M. Hoffman, for appellant. Hawkins & Parnell, William H. Major III, Edwin L. Hall, Jr., for appellee.