author: Johnson, Presiding Judge. Eldridge, Judge, McMurray, Presiding Judge, Andrews, Chief Judge,

text:
    A98A0621.
    A98A0622.
    McEACHERN et al. v. MULDOVAN. McEACHERN et al. v. GRAHAM.
    (505 SE2d 495)
   Johnson, Presiding Judge.

This is an appeal from the grant of summary judgment to defendants Michael Muldovan and Benjamin Graham. The plaintiffs are Marie McEachern and Paul Michael McEachern, the parents of the decedent Michael McEachern, individually, and Marie McEachern as temporary administratrix of the estate of the decedent. For the reasons discussed below, the grant of summary judgment as to intentional tort and wilful and wanton conduct counts in Case No. A98A0621 must be reversed. The grant of summary judgment in Case No. A98A0622 also must be reversed because there exists a genuine issue of material fact as to issues of foreseeability and remoteness. The grant of summary judgment to Muldovan as to the negligence counts in Case No. A98A0621 is affirmed.

Defendant Michael Muldovan and Michael McEachern (McEachern) were best friends. One evening, these two seventeen-year-olds and others gathered at the home of a friend. Muldovan and McEachern, along with other teenagers present, were drinking alcoholic beverages. During the evening, McEachern and others left the residence to obtain more alcoholic beverages and returned with still more friends.

McEachern possessed a handgun that evening which previously had been sold by Graham to Muldovan, a minor. He was showing it, pointing it, and operating its mechanism in the presence of the others. This conduct occurred before McEachern left the residence, while he was away from the residence, and again upon his. return to the residence. His conduct was apparently such that several teenagers became concerned about the manner in which he was handling the handgun.

During the trip for more alcohol, a temporary stop was made at another residence where McEachern showed the handgun to Stephanie Cronin. Cronin was initially frightened by the handgun but became reassured when McEachern told her it was not loaded and that the bullets were in his pocket. After returning to the gathering, McEachern took out the handgun and started pulling the hammer back —pointing it at different people and objects and snapping the trigger. Cronin again expressed her concerns to McEachern, and he again told her there were no bullets in the handgun. Cronin grabbed the handgun and ran outside. McEachern followed and regained possession of the handgun. Both Cronin and Muldovan told McEachern to put the handgun away because he was scaring people.

Some time later, Cronin, Muldovan, McEachern and two other teenagers sat around a small kitchen table in the residence. McEachern again displayed the handgun. He and Muldovan began to pass it back and forth, pointing it at each other and snapping the trigger. McEachern would load and unload the handgun. Cronin again expressed concern about how the handgun was being handled, and Muldovan opened the chamber to show her that it was not loaded.

McEachern left the table with the handgun tucked in his waist and the bullets in his pocket. When he returned, he loaded the handgun, pointed it at Muldovan’s head and pulled the trigger. There is conflicting evidence whether Muldovan saw McEachern put a bullet in the chamber of the handgun. McEachern handed the handgun to Muldovan who pointed the handgun at him and pulled the trigger. McEachern told Muldovan to do it again. When Muldovan pulled the trigger again, the handgun fired, fatally wounding McEachern.

This action for damages arises from the death by gunshot wound of Michael McEachern. The amended complaint alleges that Muldovan fired the fatal shot and states claims against him based on negligence, the intentional tort of battery, and wanton and reckless conduct. Claims are asserted against Benjamin Graham based on negligence and wanton and reckless conduct by furnishing a pistol to a minor. These appeals are taken only from the grant of summary judgment to Muldovan, Case No. A98A0621, and Graham, Case No. A98A0622.

1. “Perhaps more than any other branch of the law, the law of torts is a battleground of social theory. Its primary purpose, of course, is to make a fair adjustment of the conflicting claims of the litigating parties. . . . The influence of public policy on tort law is apparent, and most likely to be controversial, when it comes to bear upon a proposed change that is accomplished by overruling an established precedent.” Prosser & Keeton, Law of Torts (5th ed.), Introduction, Policy & Process, pp. 15-16, § 3. Society has an interest in the outcome of cases: first, in having a single dispute between individuals resolved in a fair and timely manner; and secondly, because of the system of precedent on which the entire common law is based. Id. at p. 16. “Under this system, a rule once laid down is to be followed until the courts find good reason to depart from it.” Id. Accordingly, courts should “make a conscious effort to direct the law along lines which will achieve a desirable social result, both for the present and for the future.” Id. With this sage and long-standing principle in mind, we address the relevant issues under consideration in this case.

In Georgia, the doctrine of contributory negligence developed from two century-old statutes, now codified as OCGA §§ 46-8-291 and 51-11-7. OCGA § 51-11-7 (formerly Ga. Code Ann. § 105-603; Orig. Code 1863 § 2914) provides: “If the plaintiff by ordinary care could have avoided the consequences to himself caused by the defendant’s negligence, he is not entitled to recover. In other cases the defendant is not relieved, although the plaintiff may in some way have contributed to the injury sustained.” (Emphasis supplied.) OCGA § 51-11-7 historically has been interpreted as stating two different rules: one is the duty of a person to avoid injury to himself by the exercise of ordinary care, and the second provides for a recovery where the negligence of the plaintiff partially contributes to the injury. Editorial note to Ga. Code Ann. § 105-603. It is primarily from this statute that the doctrine of assumption of the risk evolved, after first being viewed as a special type of contributory negligence. See generally Roberts v. King, 102 Ga. App. 518, 521 (1) (116 SE2d 885) (1960); 57B AmJur2d, Negligence, §§ 1377-1378. Georgia still follows the traditional view that assumption of risk is a separate defense from comparative negligence which, when applicable, exculpates the defendant. Id. at § 1380.

“The affirmative defense of assumption of the risk bars a plaintiff from recovering on a negligence claim if it is established that he[,] 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.

“Knowledge of the risk is the watchword of assumption of risk and means both actual and subjective knowledge on the plaintiff’s part. The knowledge that a plaintiff who assumes a risk must subjectively possess is that of the specific, particular risk of harm associated with the activity or condition that proximately causes injury. ... In its simplest and primary sense, assumption of the risk means that the plaintiff, in advance, has given his consent to relieve the defendant of an obligation of conduct toward him, and to take his chances of injury from a known risk arising from what the defendant is to do or leave undone.” (Citations and punctuation omitted; emphasis in original and supplied.) Vaughn v. Pleasent, 266 Ga. 862, 864 (1) (471 SE2d 866) (1996). “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. The result is that the defendant is simply under no legal duty to protect the plaintiff. A second, and closely related meaning, is that the plaintiff, with the knowledge of the risk has entered voluntarily into some relation with the defendant which necessarily involves it, and so is regarded for tacitly or impliedly agreeing to take his own chances. . . . [Assumption of risk is a matter of knowledge of the danger and intelligent acquiescence in it, while contributory negligence is a matter of some fault or departure from the standard of reasonable conduct, however unwilling or protesting the plaintiff may be. The two may co-exist, or either may exist without the other. The difference is frequently one between risks which were in fact known to the plaintiff, or so obvious that he must be taken to have known of them, and risks which he merely might have discovered by the exercise of ordinary care.” (Citation and punctuation omitted.) Roberts, supra at 521 (1).

While the doctrine of assumption of the risk was developing in this state, the totally separate concept of voluntary intoxication was being formulated based on entirely different legal and policy considerations. “The whole theory of negligence presupposes some uniform standard of behavior.” Prosser & Keeton, supra at p. 173, § 32. In forging the requisite standard of conduct in negligence cases, mental capacity of the actor generally was an external consideration. “ ‘The law,’ says Mr. Justice Holmes . . . , ‘takes no account of the infinite varieties of temperament, intellect, and education which make the internal character of a given act so different in different men.’ ” Id. at p. 176, § 32. Thus, the law recognized very early that “[o]ne who becomes intoxicated is held thereafter to the same standard as if he were a sober person.” Id. at p. 178, § 32. Two major public policy considerations supporting this rule are: (1) an excuse based on intoxication would be far too common and too easy to assert; and (2) drunkenness is so antisocial that one who indulges in it ought to be held to the consequences. Id. Thus, this Court has held: “If ordinary care under certain circumstances would require that a certain thing should be done, the requirement is binding on a man whether sober or drunk; and getting drunk will not relieve the person from that duty. To hold otherwise would be to put a premium upon drunkenness. [Cit.] A similar rule has been applied in holding that voluntary drunkenness furnishes no excuse for crime. If ordinary care is not the measure of diligence required in the particular case, what is said above is equally applicable to the degree of diligence which is required.” Powell v. Berry, 145 Ga. 696, 699 (1) (89 SE 753) (1916).

These long-standing legal and policy considerations form the basis from which we must address the primary issues in this case.

2. The trial court erred in granting defendant Muldovan’s motion for summary judgment as to the averred intentional tort of battery and as to averred claims based on Muldovan’s wilful, wanton, and reckless conduct.

(a) We first address the question of whether the conduct of Michael McEachern may be deemed to have established the defense of contributory negligence as a matter of law to the asserted wilful and wanton and intentional torts. The answer is no. Flanagan v. Riverside Military Academy, 218 Ga. App. 123, 126 (460 SE2d 824) (1995) (contributory negligence is not a bar to an intentional tort); Intl. Assn. of &c. Iron Workers, Local 387 v. Moore, 149 Ga. App. 431, 436 (11) (254 SE2d 438) (1979) (contributory negligence is not a defense to a wilful tort); see Garrett v. NationsBank &c., 228 Ga. App. 114, 118 (491 SE2d 158) (1997).

(b) “Assumption of the risk is a defense to a negligence claim, not a defense to a claim that is predicated upon an intentional tort such as battery.” Hendricks v. Southern Bell Tel. &c. Co., 193 Ga. App. 264, 266 (2) (387 SE2d 593) (1989); Terrell v. Hester, 182 Ga. App. 160 (2) (355 SE2d 97) (1987) (tort of battery was an intentional one to which an application of OCGA § 51-11-7 and an assumption of risk charge were not appropriate); see Intl. Assn. of &c. Iron Workers, supra at 436 (11) (assault and battery claim; trial court did not err in refusing to give assumption of risk charge as contributory negligence is not a defense to an alleged wilful tort); Barrow v. Ga. &c. Aggregate Co., 103 Ga. App. 704, 715 (11) (120 SE2d 636) (1961), overruled in part on other grounds, OB-GYN Assoc. &c. v. Littleton, 259 Ga. 663, 667 (386 SE2d 146) (1989); compare Williams v. Knight, 211 Ga. App. 420 (1) (439 SE2d 507) (1993) and Hopkins v. First Union Bank &c., 193 Ga. App. 109, 111 (2) (a) (387 SE2d 144) (1989) holding that assumption of risk is not a valid defense “to intentional, wilful, or wanton and reckless torts”; see also Harvey Freeman & Sons v. Stanley, 259 Ga. 233, 234 (1) (378 SE2d 857) (1989) (Court of Appeals erred in holding assumption of risk statute had no bearing in the case because defendant owner was being negligent, although the manager and her husband were being sued for allegedly committing intentional torts).

There is some authority supporting a conclusion that plaintiff’s assumption of the risk is a valid defense and will bar his or her cause of action even when there exists wilful and wanton misconduct on the part of the defendant. Sewell v. Dixie Region Sports Car &c., 215 Ga. App. 611, 612 (1) (451 SE2d 489) (1994); Newman v. Collins, 186 Ga. App. 595, 596 (1) (a) (367 SE2d 866) (1988) (physical precedent only); Roberts, supra at 520 (1) and hn. In Adams & Adams, Ga. Law of Torts (1997 ed.), § 19-1, the authors likewise conclude that plaintiff’s assumption of the risk will serve to bar his or her cause of action if predicated upon acts of wilful and wanton misconduct but recognize that an assumption of risk defense is unavailable to bar a tort claim predicated upon an intentional act. The better view, however, is found in those authorities holding that assumption of the risk is not a valid defense and is not a bar in claims arising from wilful and wanton conduct. See generally Williams v. Knight, supra at 420 (1), and Hopkins v. First Union Bank, supra at 111 (2) (a), holding that assumption of risk is not a valid defense “to intentional, wilful, or wanton and reckless torts.”

In our view, the holdings in Williams, supra, and Hopkins, supra, are more persuasive. First, it has long been recognized that wilful and wanton conduct is not a form of negligent conduct but is a separate and distinct degree of conduct that more closely equates to intentional conduct. “There is an element of intent, actual or imputed, in wilful and wanton conduct which removes such conduct from the range of conduct which may be termed negligent.” (Punctuation omitted.) Martin v. Gaither, 219 Ga. App. 646, 652 (466 SE2d 621) (1995). Thus, reason dictates that the assumption of the risk doctrine would not be a valid defense and would not bar claims arising from wilful and wanton conduct. The result would, instead, be such as occurs when a claim arises from an intentional tort. Second, OCGA § 51-11-7 pertinently provides that a plaintiff is not entitled to recover when, by exercise of ordinary care, he could have avoided the consequences of the defendant’s “negligence.” If the legislature had intended plaintiff’s assumption of the risk to preclude recovery when the defendant was engaged in the commission of an intentional tort or one involving wilful and wanton conduct, it could easily have so provided.

To the extent the trial court granted summary judgment to Muldovan as to the intentional tort claim of battery and as to claims based on Muldovan’s averred wilful and wanton conduct, on the grounds that McEachern had assumed the risk, it erred, and that ruling must be reversed.

(c) In granting summary judgment in favor of Muldovan, the trial court concluded that McEachern “had actual knowledge of the danger presented by Muldovan pointing the [loaded] pistol at him and pulling the trigger, he understood and appreciated the risk and voluntarily exposed himself to that risk.” In reaching this conclusion, the trial court, citing Lawrence v. Edwards, 128 Ga. App. 1, 2 (3) (195 SE2d 244) (1973), further determined that “[a]lthough the evidence establishes McEachern, at the time of the incident, was noticeably intoxicated ‘the acts or conduct of one voluntarily drunk will be measured by the same rules as those applying to a sober person.’ ” Id.

It has been contended that Lawrence, supra, and the seminal case of Southland Butane Gas Co. v. Blackwell, 211 Ga. 665 (88 SE2d 6) (1955) have been implicitly overruled by the holding in Vaughn v. Pleasent, supra at 864 (1); Fountain v. Thompson, 252 Ga. 256 (312 SE2d 788) (1984) and Beringause v. Fogleman Truck Lines, 200 Ga. App. 822, 823 (4) (409 SE2d 524) (1991). We disagree.

For more than a century, Georgia has followed the rule that one who becomes voluntarily intoxicated is held thereafter to the same standard as if he were a sober person. This rule has been applied in a variety of tort situations, particularly in incidents involving trains. See generally Rollestone v. Cassirer & Co., 3 Ga. App. 161, 174 (4) (59 SE 442) (1907) and cases cited therein. In adopting this special rule for voluntary intoxication cases, our courts long ago weighed the relevant legal and policy factors and concluded that voluntary intoxication should not relieve persons of their duty to use due care for their own safety or to discover and appreciate the nature of clear and apparent risk. See generally Southland Butane, supra; Shuman v. Mashburn, 137 Ga. App. 231, 232-237 (1)-(3) (223 SE2d 268) (1976). Thus, in Rollestone, supra, this Court observed: “That school of jurists who consider torts as akin to crimes apply to the case of a drunk man, as to his capacity both for negligence and for contributory negligence, the ancient maxim that drunkenness is no excuse for crime. The other school, although they do not base their theories of tort on the criminal law, just as uniformly hold the drunk man responsible for his conduct under a given state of circumstances as if he were sober. Irrespective of the various reasons given, all courts now hold that the drunk man, so far as his own conduct is concerned, is to be considered, in all matters of volition, judgment, caution, and general mental state, just as if he were sober. The state of mind produced by intoxication will be disregarded in viewing his actions, and he will be judged as if he possessed his normal capacities. . . .Wherever, [in] the transaction as it occurred, a sober man could not recover, on account of his contributory negligence in having acted imprudently or rashly or in failing to use [due] care to avoid injury, the drunk man will likewise be precluded. As against himself, the acts of a drunk man will afford the same concurrence with the negligence of the opposite party creating the juridic cause of his injury as if he were sober; and to the same extent, his acts may so intervene as to interpose a proximate cause between the defendant’s negligence and the injurious result, and this may make the defendant’s wrong juridically remote.” (Emphasis supplied.) Id. at 174-175 (4).

In Southland Butane, supra at 667, the Supreme Court stated: “The rule is so well established in this [sítate that the acts or conduct of one voluntarily drunk will be measured by the same rules as those applying to a sober person, that citation of the numerous decisions to that effect by both this court and by the Court of Appeals is deemed unnecessary.” The Supreme Court further held that the deceased voluntarily got drunk, and while in that condition placed himself in a state of peril, and that such conduct evinced a total want of care which a man of common sense would take of himself and was nothing short of gross negligence. Id. at 668. In concluding that a verdict was demanded for the defendant, the Supreme Court opined: “ ‘One who knowingly and voluntarily takes a risk of injury to his person and property, 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 and diligence for his own safety and that of his property, can not hold another liable for damages from injuries thus occasioned.’ ” Compare Lawrence, supra at 2 (3); see also Adams & Adams, supra at § 19-2. This Court in Lawrence, supra at 2 (3), followed the holding in Southland Butane, supra, that the acts or conduct of one voluntarily drunk will be measured by the same rules as those applying to a sober person and affirmed the grant of summary judgment in favor of the defendants. In so ruling, it was held that, under the existing facts, plaintiff’s son had assumed whatever risk might develop and an action for his death was barred. Lawrence, supra at 1 (1) (son was a passenger in an automobile engaged in a drag race at a speed of approximately 100 mph; he knew the driver intended to race and acquiesced in such conduct). Southland Butane, supra, and Lawrence, supra, are consistent with the principle that “the plaintiff will not be heard to say that he did not comprehend a risk which must have been quite clear and obvious to him. There are some things . . . which are so far a matter of common knowledge in the community, that in the absence of some satisfactory explanation a denial of such knowledge simply is not to be believed.” Prosser & Keeton, supra at p. 488, § 68; compare Tennison v. Lowndes-Echols Assn. &c., 209 Ga. App. 343 (433 SE2d 344) (1993). McEachern was a primary actor in this “Russian Roulette” type of conduct; the results of such “a bizarre pastime with a lethal weapon” are “obvious and well-known.” See Thompson v. Prudential Ins. Co. &c., 84 Ga. App. 214, 220 (66 SE2d 119) (1951) (insured knew the handgun was loaded and deliberately did not determine whether the handgun would fire when he pulled the trigger).

Fountain, supra, is factually distinguishable from the facts of this case and is not controlling. The “question” in Fountain concerned “Thompson’s duty of care toward Fountain.” Id. at 256-258. Examination of Vaughn, supra, and Beringause, supra, establishes that voluntary intoxication neither was at issue nor otherwise expressly addressed by the appellate courts in these cases. We are unwilling to find that the time-tested precedent pertaining to voluntary intoxication — a precedent based on the balancing of sound public policy interests — should be invalidated on the unnecessary assumption that our Supreme Court intended to overrule such an important doctrine by mere implication. Such a holding would run contrary to the long-standing appellate rule that issues which merely lurk in the record, neither brought to the appellate court’s attention nor ruled upon, are not to be considered as having been so decided as to constitute precedent. See Gordy Tire Co. v. Dayton Rubber Co., 216 Ga. 83, 89 (1) (114 SE2d 529) (1960). Also, the adoption of “a purely subjective standard opens a very wide door for the plaintiff who is willing to testify that [for some reason peculiar to his alleged situation, such as voluntary intoxication,] he did not know or understand the risk.” Prosser & Keeton, supra at p. 487, § 68. We will not cast away the well-reasoned voluntary intoxication principle unless and until the law requires that we do so. This precedent has withstood the test of time. While in some instances stability in the law must give way to changing technology and justice, “ ‘[stability and certainty in law are desirable; stare decisis is a valid and compelling basis of argument.’ ” State Farm &c. Ins. Co. v. Astro Leasing, 194 Ga. App. 515, 518 (390 SE2d 885) (1990). While a decision may be overruled directly or impliedly, as by a refusal to apply it in subsequent cases, the overruling or reversal of a decision, or of one proposition of a decision, does not argue unsoundness therein as to other separate and distinct propositions. Id. at 517.

Even if McEachern’s state of intoxication were to be considered as a factor, under the facts of this case, summary judgment in behalf of the defendant as to all claims based, on negligence is appropriate. The perilous and openly dangerous nature of McEachern’s conduct is beyond question. McEachern loaded the handgun himself; he possessed enough faculty of mind and physical dexterity to accomplish this act. He had the physical dexterity to point the handgun at Muldovan and pull the trigger. Muldovan was then handed the handgun by McEachern so he could perform a similar act toward McEachern. When the handgun failed to discharge, McEachern directed Muldovan to pull the trigger again. McEachern’s own words and conduct unequivocally announce and establish his existing intent. His words and conduct establish, first, that he had enough sobriety to intend that Muldovan point and repeatedly pull the trigger of the handgun which McEachern personally had loaded with a bullet, and second, that he appreciated what it was that he desired Muldovan to do. Compare Shuman, supra at 235. Under the uncontroverted facts of this case, the jury could draw but one conclusion: that McEachern, knowing the handgun was loaded, intended that Muldovan point it at him and pull the trigger and that Muldovan do so without ascertaining in what position the round was chambered. Compare Tennison, supra. That McEachern chose to subject himself to such an open, obvious and senseless danger — a danger of his own creation — is a tragic misfortune, but the appellate process affords us no latitude to make adjustments for the ill-earned good fortune of the lucky or the heart-rending misfortune of the unlucky. We must interpret the law and apply it with an even hand. Floyd S. Pike Elec. Contractors v. Williams, 207 Ga. App. 86, 89 (2) (e) (427 SE2d 67) (1993). Obviously, this Court cannot predict all possible circumstances which could arise in tort cases involving voluntary intoxication. For example, where plaintiff’s intoxication is either the sole or concurrent proximate cause of injury, Southland Butane, supra, causes assumption of risk to bar recovery, except where the doctrine of last clear chance is presented by the evidence. Compare Fountain, supra. Accordingly, we are neither holding nor implying herein that voluntary intoxication, per se, will always result in a bar to recovery.

3. The trial court erred in granting summary judgment to Graham. The evidence before the court presented a question for jury resolution whether it was foreseeable that Muldovan would engage in some form of negligent or intentional conduct after Graham sold him the handgun which would result in his or another party’s injury or death.

Recognizing the inherent dangerousness of handguns in the possession of minors, the legislature enacted OCGA § 16-11-101.1, which makes it unlawful for a person intentionally, knowingly, or recklessly to sell or furnish a pistol or revolver to a minor, except under certain circumstances not relevant here. Graham breached a duty created by statute when he sold the handgun to Muldovan. It is a question for the jury whether it was reasonably foreseeable that Graham’s conduct would result in the death of McEachern due to the subsequent playing of a deadly game with the handgun by Muldovan. Compare Spires v. Goldberg, 26 Ga. App. 530 (106 SE 585) (1921). “The causal connection between an original act of negligence and injury to another is not broken by the intervening act of a third person, if the nature of such intervening act was such that it could reasonably have been anticipated or foreseen by the original wrongdoer. The foreseeability of an intervening act [generally] is a question upon which reasonable minds might differ.” (Citations and punctuation omitted.) Mobley v. Flowers, 211 Ga. App. 761, 762 (2) (440 SE2d 473) (1994). “When from human experience the original wrongdoer has reason to know that his negligence will induce or provide the opportunity for another’s negligence, he cannot rely on the doctrine of intervening or supervening cause to insulate him from liability when an injury does occur.” Adams & Adams, supra at p. 257, § 15-4.

OCGA § 16-11-101.1 clearly was intended to protect minors from their own inability to protect themselves from their dangerous conduct when in possession of handguns, including their own lack of judgment or inability to resist various peer pressures. Thus, OCGA § 16-11-101.1 appears to be the type of statute whose fundamental purpose would be defeated if the minor were permitted to assume the risk vis-a-vis the seller thereby relieving the seller of responsibility for injury resulting from the use of the illegally sold or furnished handgun. See generally Prosser & Keeton, supra at pp. 492-493, § 68.

For all these reasons, as to Case No. A98A0621, we reverse the trial court’s grant of summary judgment to Muldovan as to the claim of the intentional tort of battery and as to claims based on averred wilful and wanton conduct; we affirm the trial court’s grant of summary judgment to Muldovan as to claims based on averred negligent conduct to which the doctrine of assumption of the risk is applicable. As to Case No. A98A0622, we reverse the trial court’s grant of summary judgment to Graham.

Judgment affirmed in part and reversed in part in Case No. A98A0621. Judgment reversed in Case No. A98A0622.

Blackburn, Smith, Ruffin, JJ, and Senior Appellate Judge Harold R. Banke concur. Eldridge, J., concurs fully with the majority and concurs specially separately. McMurray, P. J, concurs specially. Andrews, C. J., Pope, P. J., and Beasley, J., concur in part and dissent in part.

Eldridge, Judge,

concurring specially.

While I agree entirely with the opinion of the majority, I feel that the complexity of the issues and the divergent prior opinions of this Court as to the meaning of contributory negligence and assumption of risk require further elaboration.

1. “ ‘Contributory negligence is conduct on the part of the plaintiff, contributing as a legal cause to the harm he has suffered, which falls below the standard to which he is required to conform for his own protection. Unlike assumption of risk, the defense does not rest upon the idea that defendant is relieved of any duty toward the plaintiff.’ Prosser, [Law of Torts (4th ed.), p. 440]. ‘Closely allied to the doctrine of contributory negligence is the rule of “avoidable consequénces,” which denies recovery for any damages which could have been avoided by reasonable conduct on the part of the plaintiff. Both rest upon the same fundamental policy of making recovery depend upon plaintiff’s proper care for the protection of his own interests, and both require of him only the standard of the reasonable man under the circumstances.’ Prosser, supra, at 422; see Harper and James, [Law of Torts, Vol. 2, Ch. XXI], at 1231.” Osburn v. Pilgrim, 246 Ga. 688, 695 (273 SE2d 118) (1980).

Contributory negligence is comprised of two separate and distinct defenses. See Savannah Elec. Co. v. Jackson, 132 Ga. 559, 562 (2) (64 SE 680) (1909); Savannah, Fla. &c. R. Co. v. Stewart, 71 Ga. 427, 428 (2) (1884); Whatley v. Henry, 65 Ga. App. 668, 673-674 (6) (16 SE2d 214) (1941). “[F]irst the plaintiff must at all times use ordinary care for his own safety; that is, he must not by his own negligence (or consent) proximately cause his own injuries; and second, the plaintiff must use ordinary care to avoid the consequences of the defendant’s negligence when it is apparent or when in the exercise of ordinary care it should become apparent. . . . Comparative negligence is applicable only when the jury has not found either the negligence of the plaintiff or that of the defendant to be the sole proximate cause. [Cits.]” Whatley v. Henry, supra at 674; see also Edwards v. Trammell, 187 Ga. App. 22, 24 (369 SE2d 288) (1988); Leonardson v. Ga. Power Co., 210 Ga. App. 574, 576 (436 SE2d 690) (1993). “Comparative negligence by the plaintiff is that negligence which joins with the negligence of the defendant in proximately causing the injuries of the plaintiff and goes in reduction of the amount of recovery in proportion that the negligence of the plaintiff compares with that of the defendant, resulting, by reduction, in a bar of recovery when the negligence of the plaintiff is equal to or greater than that of the defendant.” (Emphasis omitted.) Whatley v. Henry, supra at 674.

No one has a duty to anticipate the active negligence of another. Poppell v. Smutney, 106 Ga. App. 480 (127 SE2d 335) (1962); Economy Gas &c. Co. v. Kinslow, 74 Ga. App. 418 (39 SE2d 899) (1946). Further, the plaintiff has no duty to avoid the active negligence of another until such negligence has, in fact, occurred and is known by the plaintiff, or by the plaintiff’s exercise of ordinary care and diligence should have been apparent to him. Newman v. Collins, 186 Ga. App. 595, 596 (1) (367 SE2d 866) (1988) (physical precedent only); Seaboard Coast Line R. Co. v. Clark, 122 Ga. App. 237, 240 (5) (176 SE2d 596) (1970).

2. Assumption of the risk occurs “ ‘[w]hen a person knowingly and voluntarily takes a risk of physical injury, the danger of which is so obvious that the taking of such a risk, in and of itself, amounts to a failure to exercise ordinary care and diligence for his own safety, he cannot hold another liable for injuries proximately caused by such action even though the injuries may be in part attributable to the negligence of such other person.’ ” Deere & Co. v. Brooks, 250 Ga. 517, 518-519 (1), (2) (299 SE2d 704) (1983); see also City of Winder v. Girone, 265 Ga. 723, 724 (2) (462 SE2d 704) (1995); Union Camp Corp. v. Helmy, 258 Ga. 263, 267 (367 SE2d 796) (1988); Fountain v. Thompson, 252 Ga. 256, 257 (312 SE2d 788) (1984); Southland Butane Gas Co. v. Blackwell, 211 Ga. 665, 669-670 (88 SE2d 6) (1955); Newman v. Collins, supra at 596.

“Testing a known peril acts as a transition between the concepts of avoidance and assumption of the risk. ‘One who recklessly tests an observed and clearly obvious peril is guilty of lack of ordinary care,’ Brooks v. Douglas, 154 Ga. App. 54, 58 (2) (267 SE2d 495) (1980) ([physical precedent only]), and is guilty of such negligence ‘which will be deemed the proximate cause of [the] resulting injury, and, in the absence of wilful or wanton misconduct by the defendant, will preclude recovery/ Laseter v. Clark, 54 Ga. App. 669, 670 (1) (189 SE 265) (1936).” Newman v. Collins, supra at 596.

“Taylor v. Morgan, 54 Ga. App. 426 (188 SE 44) (1936), and other cases, appear to blend or merge the two concepts of avoidance and assumption of the risk when they are separate and distinct. Assumption of risk in its simplest and primary sense means that the plaintiff has given him express consent to relieve the defendant of an obligation of conduct toward him and to take his chance of injury from a known risk. Owens-Ill. v. Bryson, 138 Ga. App. 78, 79 (225 SE2d 475) (1976). Also, plaintiff with knowledge of the risk may be regarded as tacitly or impliedly agreeing to take his own chances. Id. at p. 79. In working out the distinction the courts have arrived at the conclusion that assumption of risk is a matter of knowledge of the danger and intelligent acquiescence in it. Roberts v. King, [102 Ga. App. 518, 521 (1) (116 SE2d 885) (1960)]. The doctrine of avoidable consequences does not rest upon the idea that [the] defendant is relieved of any duty toward plaintiff, but denies recovery for any damages which could have been [discovered by plaintiff or might have been] avoided by reasonable conduct on plaintiffs part. Osburn v. Pilgrim, [supra at 695]. Avoidance of the consequences involves the failure to take action to overcome defendant’s negligence after it is . . . discovered by . . . plaintiff’s exercise of ordinary care. Lanier v. Turner, 73 Ga. App. 749, 753 (38 SE2d 55) (1946). The rule which requires one to avoid the consequences of another’s negligence does not apply until he sees the danger or has reason to apprehend it. Central R. &c. Co. v. Attaway, 90 Ga. 656, 661 (16 SE 956) (1892). See Griffin v. Campbell, 112 Ga. App. 420 (2) (145 SE2d 659) (1965); Smith v. 670 New Street, 111 Ga. App. 35, 38 (140 SE2d 495) (1965); Economy Gas & Appliance Co. v. Kinslow, [supra at 420].” (Punctuation omitted.) Newman v. Collins, supra at 596-597.

For the defense of assumption of risk to be applicable to a case, there must be evidence that “the plaintiff had actual knowledge of the dangerous situation that resulted in his injury, and an appreciation of the risks associated with that dangerous situation.” Vaughn v. Pleasent, 266 Ga. 862, 863 (471 SE2d 866) (1996). “ ‘Knowledge of the general danger may not be enough, and some courts require knowledge of the specific risk that caused the plaintiff’s harm. The standard to be applied is, in theory at least, a subjective one, geared to the particular plaintiff and his situation, rather than that of the reasonable person of ordinary prudence who appears in contributory negligence. If, because of age or lack of information or experience, he does not comprehend the risk involved in a known situation, he will not be taken to consent to assume it. His failure to exercise ordinary care to discover the danger is not properly a matter of assumption of risk, but of the defense of contributory negligence.’ Prosser & Keeton, The Law of Torts, § 68, p. 487 (5th ed. 1984).” (Emphasis in original.) Beringause v. Fogleman Truck Lines, 200 Ga. App. 822, 824 (4) (409 SE2d 524) (1991). “The affirmative defense of assumption of the risk bars a plaintiff from recovering on a negligence claim if it is established that he[,] 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. Knowledge of the risk is the watchword of assumption of risk, and means both actual and subjective knowledge on plaintiff’s part. The knowledge that a plaintiff who assumes a risk must subjectively possess is that of the specific, particular risk of harm associated with the activity or condition that proximately causes injury. The knowledge requirement does not refer to a plaintiff’s comprehension of general, non-specific risks that might be associated with such conditions or activities.” (Citations and punctuation omitted.) Vaughn v. Pleasent, supra at 864; see also Smith v. Mangram, 222 Ga. App. 585, 586 (474 SE2d 758) (1996); York v. Winn-Dixie Atlanta, 217 Ga. App. 839 (459 SE2d 470) (1995); Turner v. Sumter Self Storage Co., 215 Ga. App. 92, 94-95 (3) (449 SE2d 618) (1994). “In by far the greater number of cases, the consent to assume the risk has not been a matter of express agreement, but has been found to be implied from the conduct of the plaintiff under the circumstances.” (Citations and punctuation omitted.) Tennison v. Lowndes-Echols Assn. for Retarded Citizens, 209 Ga. App. 343, 344 (433 SE2d 344) (1993); accord Osburn v. Pilgrim, supra at 695; Stallings v. Cuttino, 205 Ga. App. 581, 582 (422 SE2d 921) (1992). Thus, although the deceased was extremely intoxicated, his conduct over the course of the evening in regard to the loading and unloading of the pistol, pointing it at others, having the pistol pointed at him, and pulling the trigger or encouraging others to do the same was clear and palpable evidence of his awareness and appreciation of the risk and consent to assume such risk of negligence that he, himself, created and encouraged by producing the pistol, loading it, and sharing the play with the pistol with others.

3. Neither Vaughn v. Pleasent, supra at 864 (1), nor Fountain v. Thompson, supra, impliedly overruled Southland Butane Gas Co. v. Blackwell, supra, or Lawrence v. Edwards, 128 Ga. App. 1, 2 (3) (195 SE2d 244) (1973). However, when voluntary alcohol consumption renders the plaintiff unconscious or causes the plaintiff to black out so that his conduct appears visibly impaired, the defendant could remain liable under the last clear chance doctrine where it was obvious that the plaintiff was helpless in a position of danger and defendant through the exercise of ordinary care, after discovering the plaintiff in the position of peril, could avoid injuring him through the exercise of ordinary care and failed to do so. See Fountain v. Thompson, supra. However, the last clear chance doctrine is not applicable under the facts of this case.

McMurray, Presiding Judge,

concurring specially.

I concur with the majority that the grant of summary judgment in Case No. A98A0622 must be reversed because there exists a genuine issue of material fact as to the issue of foreseeability. And, I agree with the majority insofar as it reverses the grant of summary judgment which was entered based upon a theory of assumption of the risk in Case No. A98A0621, albeit my concurrence is based upon a different analysis from that applied by the majority.

“When one assumes the risk of the wilful and wanton misconduct of another a recovery on the basis of such misconduct is precluded and the law will not undertake to divide the wantonness into degrees or fractions of degrees to ascertain whether the death or injury resulting was fully realized and appreciated by the one so assuming the risks. The law will hold such a one to have assumed whatever risks develop in the process of the activity engaged in.” Roberts v. King, 102 Ga. App. 518, 523 (116 SE2d 885). While the majority declines to follow this holding and concludes that the better view is found in authorities holding that assumption of the risk is not a valid defense and is not a bar in claims arising from wilful and wanton conduct, I note that there is no acknowledgment by the majority of the distinction upon which this holding is based. Roberts, like the case sub judice, involves a plaintiff who ostensibly consents not simply to negligent conduct on the part of defendant but consents to wilful and wanton conduct on the part of defendant. None of the authority relied upon by the majority involves such a plaintiff, who has consented to wilful and wanton conduct on the part of the defendant, and in my view those cases cited by the majority should be distinguished on this basis.

Instead, I would look to recent decisions of this Court and of the Supreme Court of Georgia which carefully define the appropriate analysis which is appropriate in review of cases involving the defenses of assumption of risk and contributory negligence. In Beringause v. Fogleman Truck Lines, 200 Ga. App. 822, 823 (4) (409 SE2d 524), this Court returned to a bedrock principle by noting that the knowledge of risk at issue with regard to the defense of assumption of risk is subjective knowledge. “ ‘The standard to be applied is, in theory at least, a subjective one, geared to the particular plaintiff and his situation, rather than that of the reasonable person of ordinary prudence who appears in contributory negligence.’” (Emphasis in original.) Id. at 824 (4). This principle is acknowledged by the Supreme Court of Georgia, which states that knowledge of the risk “means both actual and subjective knowledge on the plaintiff’s part.” (Punctuation omitted; emphasis in original.) Vaughn v. Pleasent, 266 Ga. 862, 864 (1) (471 SE2d 866).

In the case sub judice, the evidence establishes that at the time of the incident, Michael McEachern was noticeably intoxicated, and plaintiffs argue that this evidence was sufficient to create a jury question as to what he understood and appreciated. The same argument in substance was addressed by this Court in Lawrence v. Edwards, 128 Ga. App. 1, 2 (3) (195 SE2d 244), and rejected on the basis of a rule that the acts and conduct of one voluntarily intoxicated will be measured by the same rules as those applying to a sober person. See also Southland Butane Gas Co. v. Blackwell, 211 Ga. 665, 667 (88 SE2d 6). However, and with all due respect to the analysis of this issue on the part of the majority, this objective standard cannot be reconciled with the requirement of Vaughn and Beringause, that, for purposes of an assumption of risk defense, knowledge of the risk be examined under a subjective standard which considers the actual circumstances of a plaintiff. We are bound to follow the controlling authority of the Supreme Court of Georgia’s decision in Vaughn v. Pleasent, 266 Ga. 862, 864 (1), supra, tacitly overruling Lawrence in part, as well as such conflicting portions of Southland Butane Gas Co. v. Blackwell, 211 Ga. 665, 667, supra, as may have remained viable following the decision in Fountain v. Thompson, 252 Ga. 256 (312 SE2d 788). Consequently, Division 3 of the Lawrence decision should no longer be followed.

“ ‘In assessing whether a plaintiff had the requisite knowledge of the danger and appreciation of the risks, a subjective standard applies, that is, what the particular plaintiff knew, understood and appreciated. (Vaughn v. Pleasent, 266 Ga. 862, 864[, supra]); Beringause v. Fogleman Truck Lines, 200 Ga. App. 822, 824[, supra]. A plaintiff lacking such subjective knowledge of the danger will not be taken to have assumed the risk even though his conduct may be deemed contributory negligence for his failure under an objective knowledge standard to discover the danger by exercising the ordinary care required of a reasonable man. Id. at 824.’ Sutton v. Sumner, 224 Ga. App. 857, 859 (482 SE2d 486).” Desai v. Silver Dollar City, 229 Ga. App. 160, 164 (3), 165 (493 SE2d 540).

Applying a subjective standard in assessing what Michael McEachern knew, understood, and appreciated, it is clear that the evidence as to the length of the period of time he had been drinking, the description of the beverages that were being consumed, and the testimony concerning his demeanor, including that regarding statements he made with respect to the subject of suicide and otherwise expressing a depressed state of mind, were sufficient to create a question of fact concerning whether he was so intoxicated or depressed as to be unable to understand and appreciate the risks associated with defendant Muldovan’s actions. Thus, I would hold that a grant of summary judgment based on a theory that Michael McEachern had assumed the risk of being shot is not authorized by the evidence.

Neither should the conduct of Michael McEachern be deemed to have established the defense of contributory negligence as a matter of law. There is evidence that defendant Muldovan was aware that the gun was loaded and thus engaged in wilful and wanton conduct in pointing the gun at Michael McEachern and pulling the trigger. Such wilful and wanton conduct should preclude a defendant from relying upon the defense of contributory negligence. Williams v. Knight, 211 Ga. App. 420 (1) (439 SE2d 507); Hopkins v. First Union Bank of Savannah, 193 Ga. App. 109, 111 (2) (a) (387 SE2d 144); Terrell v. Hester, 182 Ga. App. 160 (2) (355 SE2d 97); Intl. Assn. of &c. Iron Workers, Local 387 v. Moore, 149 Ga. App. 431, 436 (11) (254 SE2d 438).

Also, in Case No. A98A0621,1 concur with the affirmance of the grant of summary judgment on behalf of Muldovan as to claims based on allegations of negligent conduct. Again, although I do not embrace the reasoning of the majority, I believe that this portion of the judgment below is correct under a right for any reason analysis and application of the objective standard of the contributory negligence defense.

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 revolver 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.

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 wantonness 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) (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. at 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 rule 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.


source: Caselaw Access Project

author: Johnson, Presiding Judge.

license: Public Domain

text:
    A98A1484.
    HILL v. THE STATE.
    (507 SE2d 3)
   Johnson, Presiding Judge.

Terrance Hill appeals the trial court’s denial of his motion in autrefois convict and plea of former jeopardy. For reasons which follow, we affirm.

The facts in this case are not in dispute. On November 10, 1996, Hill and a companion were stopped by a police officer while riding in Hill’s car. While approaching the vehicle, the officer noticed Hill and his companion making arm movements suggesting to the officer that they might be hiding something under the seats. The officer suspected Hill was intoxicated and asked him to perform field sobriety tests. While Hill was performing these tests, the officer noticed Hill’s companion continuing to make arm movements inside the car.

The officer arrested Hill for driving under the influence of alcohol, violating the open container law, and weaving over the roadway. He then searched the car and found a pouch on the floor of the passenger side containing a glass vial of cocaine residue and personal effects of Hill’s companion, including his driver’s license, checkbooks, two prescription bottles, and a toothbrush. The officer charged Hill’s companion with possession of cocaine and violating the open container law. The official lab report from the Georgia Bureau of Investigation bears the name of Hill’s companion.

On January 2, 1997, accusations were filed against Hill for driving under the influence of alcohol and violating the open container law. On May 16,1997, Hill entered a guilty plea to the open container charge and pled nolo contendere to driving under the influence.

During Hill’s plea hearing, the assistant solicitor admitted having Hill’s file, including the breath test results, a witness list and arrest reports of both Hill and his companion. His companion’s arrest report contained all the information regarding the cocaine that was seized from Hill’s vehicle. Although the assistant solicitor took the plea, he did not review the file. The file was reviewed by the chief assistant solicitor, who prepared and signed the state’s recommendation.

At some point between December 8, 1996 and August 25, 1997, Hill’s companion was indicted by the grand jury for possession of cocaine. This prosecution was handled by the district attorney’s office, not the solicitor general’s office. The arresting officer testified he did not charge Hill with possession of cocaine because the cocaine was found in Hill’s companion’s personal effects and he did not believe Hill had anything to do with the cocaine. In August 1997, Hill gave his companion an affidavit stating that Hill would testify for the defense that he knew of the cocaine, that the vial was his and that he should have gotten rid of it. Subsequently, Hill was given Miranda rights and admitted in a handwritten statement that he had found the vial of cocaine in his car and put it in his cup holder instead of disposing of it.

The district attorney’s office then re-indicted Hill’s companion and named Hill as a co-defendant on September 24, 1997. Hill filed a motion to dismiss based on double jeopardy, which the trial court denied.

1. Hill contends the trial court erred in denying his plea of double jeopardy. In reviewing a grant or denial of a double jeopardy plea in bar, this Court determines( whether, after reviewing the trial court’s oral and written rulings as a whole, the trial court’s findings support its conclusion. See State v. D’Auria, 222 Ga. App. 615, 616 (475 SE2d 678) (1996).

Under OCGA § 16-1-7 (b), the state is required to prosecute crimes in a single prosecution if the crimes (1) arise from the same conduct, (2) are known to the proper prosecuting officer at the time of commencing the prosecution, and (3) are within the jurisdiction of a single court. A second prosecution is barred under OCGA § 16-1-8 (b) (1) if it is for a crime with which an accused should have been charged in the first prosecution under OCGA § 16-1-7 (b).

In Baker v. State, 257 Ga. 567, 569 (361 SE2d 808) (1987), the Supreme Court held that OCGA § 16-1-7 (b) applies “ ‘only to such crimes which are actually known to the prosecuting officer actually handling the proceedings.’ ” (Emphasis in original.) Subsequent decisions of this Court have held that since a prosecution is commenced with the return of the indictment or the filing of the accusation (OCGA § 16-1-3 (14)), “the prosecuting officer actually handling the proceedings” refers to the attorney who initiates the case, either by filing the accusation or achieving a return of the indictment. See State v. Kennedy, 216 Ga. App. 405 (454 SE2d 600) (1995); Smith v. State, 190 Ga. App. 246, 247 (378 SE2d 493) (1989); see also Singer v. State, 156 Ga. App. 416, 417 (2) (274 SE2d 612) (1980). Based on this analysis, knowledge of the attorney who files the accusation or achieves return of an indictment is imputed to an attorney who accepts the plea. Smith, supra. We therefore disagree with the state’s argument that the assistant solicitor who handled Hill’s plea proceeding was the prosecuting officer “actually handling the proceedings” and that, since this attorney did not review the file before taking the plea, it cannot be said that the “prosecuting officer actually handling the case” had actual knowledge of Hill’s alleged possession of cocaine.

Nevertheless, Baker also mandated that OCGA § 16-1-7 (b) only applies to such crimes which are “actually known” to the prosecuting officer, and the record before this Court is void of any evidence showing actual knowledge of Hill’s alleged possession of cocaine at the time Hill offered his guilty plea. Under Baker, Hill bears the burden of showing that the prosecuting officer had actual knowledge of all the charges. Baker, supra; State v. Goble, 231 Ga. App. 697 (500 SE2d 35) (1998). “The prosecutor’s knowledge of all the facts determines whether a single prosecution is required.” (Emphasis in original.) Billups v. State, 228 Ga. App. 804, 807 (1) (c) (493 SE2d 8) (1997).

In the present case, the accusation was filed by the solicitor general or a member of his office. Therefore, only knowledge of the solicitor general or a member of his office may be imputed to the assistant solicitor who handled Hill’s plea. While Hill states in his reply brief, “[i]t appears that” the chief assistant solicitor fully read the file, he has not shown that anyone in the solicitor’s office had actual knowledge regarding facts which establish that Hill possessed cocaine. The appellate courts in Georgia have consistently rejected a constructive knowledge or “should have known” standard. Baker, supra at 568; Price v. State, 206 Ga. App. 161, 163 (1) (424 SE2d 841) (1992). Likewise, Hill’s argument that the arresting officer’s knowledge can be imputed to the prosecuting officer has been repeatedly rejected by this Court. See Cates v. State, 206 Ga. App. 694, 695 (426 SE2d 576) (1992); Anderson v. State, 200 Ga. App. 530, 532 (408 SE2d 829) (1991); Zater v. State, 197 Ga. App. 648, 649 (1) (399 SE2d 222) (1990).

Hill relies on Billups, supra at 806 (1), where we imputed knowledge of the law to a prosecuting officer who had actual knowledge of all relevant facts giving rise to an offense under the law. The prosecuting officer in Billups admitted that she read the arrest report and actually knew all the facts and evidence of the defendant’s conduct. Id. at 808 (1) (c). It was further undisputed that all the facts known by the prosecuting officer gave rise to an offense under the law. Thus, the prosecuting officer in Billups had actual knowledge of all the facts giving rise to the offense. Contrary to Hill’s assertion, Billups does not hold that “information contained in an arrest report that is in the prosecutor’s file may be imputed to the prosecutor’s knowledge, whether the information was actually noticed by the prosecutor or not.”

Hill’s argument that the district attorney handling Hill’s companion’s case had actual knowledge of all the facts giving rise to a possession of cocaine charge against Hill likewise lacks merit. At the double jeopardy hearing, the district attorney handling Hill’s companion’s case testified that he knew that the arresting officer observed both Hill and his companion making arm movements suggesting they were hiding items under the seats. He further knew that the cocaine was found in Hill’s car, that Hill was the individual driving the car, and that Hill was being charged in state court with offenses arising out of the incident. However, the district attorney is not the “prosecuting officer actually handling the proceedings” for the case against Hill and is not even in the same office as the solicitor general who filed the accusation against Hill, the chief assistant solicitor who recommended Hill’s sentence, or the assistant solicitor who took Hill’s plea. His knowledge of the facts, therefore, is irrelevant.

In this case, unlike many cited by Hill, Hill was not arrested or cited for the crime of possession of cocaine. It is further undisputed that Hill did not confess that the vial of cocaine was his until after the assistant solicitor took his plea. While knowledge of the solicitor general or chief assistant solicitor may be imputed to the assistant solicitor who took Hill’s plea, Hill has failed to prove that these individuals possessed actual knowledge, as opposed to constructive knowledge, of any facts establishing Hill’s alleged possession of cocaine. Tins being the case, we need not determine whether the facts in the solicitor’s file were sufficient to give rise to the offense of possession of cocaine.

Since Hill has failed to provide this Court with any evidence that the solicitor’s office had actual knowledge of facts establishing that Hill committed a felony offense that arose from the same conduct as the traffic charges, the state may proceed with its prosecution of the possession of cocaine offense against Hill. See Baker, supra; Goble, supra. Accordingly, the trial court properly denied Hill’s plea of former jeopardy.

2. In his second enumeration, Hill contends the trial court erred in refusing to allow a defense witness to read into the record information contained in arrest reports, finding the information was hearsay. Even if the trial court did err in this regard, any such error did not harm Hill. As Hill admits, the solicitor was asked to read the narrative from the arrest reports “merely in an effort to prove that the facts indicating the existence of the cocaine charge were known to his office at the time of the initial prosecution in State Court.” As we have already stated, it is immaterial what the assistant solicitor or the solicitor’s office may have known or should have known. Since Hill has not proven that the solicitor’s office had actual knowledge of any facts establishing Hill’s alleged possession of cocaine, he was not harmed by the trial court’s refusal to allow the assistant solicitor to read a narrative from the arrest report.

3. Likewise, even if the trial court erred in refusing to admit into evidence the solicitor’s file, as alleged in Hill’s third enumeration of error, this error did not harm Hill. As with the narrative in the police report, Hill sought to admit into evidence the solicitor’s file to establish a complete record of all the information available to the assistant solicitor at the time the plea was entered. Once again, however, it is immaterial what the assistant solicitor or the solicitor’s office may have known or should have known. Since Hill has not proven that the solicitor’s office had actual knowledge of any facts establishing Hill’s alleged possession of cocaine, he was not harmed by the trial court’s refusal to admit the solicitor’s file into evidence.

Judgment affirmed.

Smith, J, and Senior Appellate Judge Harold R. Banke concur.

Decided August 14, 1998

Reconsideration denied September 1, 1998.

King, King & Jones, David H. Jones, Bernard S. Brody, for appellant.

Robert E. Keller, District Attorney, Erman J. Tanjuatco, Assistant District Attorney, for appellee.


author: Andrews, Chief Judge.

text:
    A98A1528.
    KLUSACK et al. v. WARD et al.
    (507 SE2d 1)
   Andrews, Chief Judge.

Having contracted to purchase a house and 10 acres in November 1994 and having been deeded only a house and 7.86 acres on July 7, 1995, Mr. and Mrs. Klusack sued Mr. and Mrs. Ward, the sellers, and the sellers’ agent, Henderson Real Estate, Inc., and its employee, Tucker, for fraud and rescission of the sale. This appeal by the Klusacks is from the grant of partial summary judgment to Henderson Real Estate, Inc. and Tucker based on lack of justifiable reliance by the Klusacks on Henderson and Tucker’s claimed fraudulent statement that the property contained ten acres.

Viewed with all inferences in favor of the Klusacks, the evidence showed that, when they were considering their purchase, they had received from Tucker a 1983 plat including the property. That plat showed one tract of 9.04 acres, plus approximately an acre containing the house. In fact, the Wards had sold the northern part of the 9.04-acre tract sometime between 1983 and 1995. When the Klusacks signed the Purchase and Sale Agreement, they mentioned getting their own attorney, but were told by Tucker that would not be necessary, that a local attorney would handle the matter. The local attorney prepared the deed, which inaccurately described in metes and bounds the property to be conveyed as the larger tract. He also handled the closing. No current plat was available at the July closing although the deed referred to a July 7,1995 plat. When that plat was actually completed November 29, 1995, it did not include the previously sold northern portion of property and showed only the 7.865 acres which the sellers were legally able to convey and which were conveyed thereafter by a deed properly describing the 7.865 acres.

Plaintiffs’ statement of material facts reflects that they pitched a tent and lived on the property prior to closing on it, but never had their own survey or title search conducted even though Paragraph 6 of the Purchase and Sale Agreement gave them and their representatives the right to enter the property in order to make “a diligent, prudent and competent inspection ... by examining, testing, and surveying the Property.” In their responses to interrogatories, the Klusacks state that they “did not investigate the property because: 1) They trusted Defendants [and] 2) Defendant (Tucker) told them they did not need their own attorney; that [the local attorney] would check everything out for them. . . . Plaintiffs had a valid contract to prove [sic] 10 acres with a specific description as per the deeds prepared in July. They were under no legal duty to investigate because they were relying upon the representation of the written contract and law under Etheridge v. Fried, 183 Ga. App. 842 [(360 SE2d 409) (1987)].”

Both the attorney fees for the local attorney and the payment for the 1995 survey were shown on the closing settlement statement as having been paid by the Wards.

1. The tort of fraud, the only claim available against Tucker and Henderson, has five elements: (1) false representation by a defendant; (2) scienter; (3) intention to induce the plaintiffs to act or refrain from acting; (4) justifiable reliance by plaintiffs; and (5) damage to plaintiffs. Smalls v. Blueprint Dev., 230 Ga. App. 556, 559 (497 SE2d 54) (1998), citing Reeves v. Edge, 225 Ga. App. 615, 617-618 (2) (484 SE2d 498) (1997). Failure to show, in opposition to summary judgment, some evidence from which each element could be found by a jury allows the action to be disposed of summarily. Id.

In order to prove justifiable reliance, plaintiffs must show the defect could not have been discovered by them in the exercise of due diligence in the purchase of the property. E.g., Hanlon v. Thornton, 218 Ga. App. 500, 501 (462 SE2d 154) (1995); Hill v. Century 21 Max Stancil Realty, 187 Ga. App. 754, 755 (2) (371 SE2d 217) (1988); see Deckert v. Foster, 230 Ga. App. 164 (495 SE2d 656) (1998).

Here, the record is totally devoid of any efforts by the Klusacks to determine either the amount of property actually owned by the Wards and thus available for purchase by them or the actual boundaries of the property which they had contracted to buy prior to receiving the inaccurate deed. While questions of due diligence generally will be for resolution by a jury, one may fail to exercise due diligence as a matter of law. Hill, supra at 756.

Hill involved a real estate purchase in which the purchaser intended to use the property for a used car lot and had been assured by the seller’s agent that the property was zoned commercial and he would have no problem doing so, when in fact the property was not so zoned. Hill’s failure to check the zoning status of the property was found, as a matter of law, to be lack of due diligence which defeated his fraud claim. See also T.O.H. Assoc. v. 2B Enterprises, 224 Ga. App. 730, 731-732 (482 SE2d 393) (1997) (lessee’s failure to check to see if leased premises zoned for indoor recreational use); Smith v. Stanley, 223 Ga. App. 334 (477 SE2d 618) (1996) (failure to determine if purchased property within flood plain); Real Estate Intl. v. Buggay, 220 Ga. App. 449, 451 (2) (469 SE2d 242) (1996) (failure to investigate drainage problems on purchased property); Hanlon v. Thornton, supra at 502 (2) (failure to ascertain presence of landfill in vicinity of purchased property). All of these failures were deemed lack of due diligence as a matter of law. We find, as did the trial judge, that the Klusacks failed to exercise due diligence.

Decided August 13, 1998

Reconsideration dismissed September 1, 1998.

Farless & Newton, Floyd H. Farless, for appellants.

Farrar & Farrar, Archibald A. Farrar, Jr., Christopher L. Corbin, for appellees.

The Klusacks’ reliance on Etheridge, supra, is unavailing. There, the seller was granted summary judgment on a breach of title claim and no reliance was found by the purchaser on the allegedly fraudulent misstatement.

2. There is also an additional basis upon which the sellers were entitled to summary judgment. It is not disputed that, upon the attorney’s discovery of the inaccurate description, a revised deed was issued to and accepted by the Klusacks. Their motives for doing so are not relevant to our conclusion that “ ‘[accepting and retaining the benefits under the contract alleged to be fraudulent after discovering the alleged fraud constitutes an affirmance. (Cit.)’ Garcia v. Charles Evans BMW, 222 Ga. App. 121, 122 (473 SE2d 588) (1996).” Reeves v. Edge, supra at 619 (2).

Judgment affirmed.

Smith, J., and Senior Appellate Judge Harold R. Banke concur.


author: Beasley, Judge.

text:
    A97A0109.
    CORBIN et al. v. FARMEX, INC.
    (506 SE2d 406)
   Beasley, Judge.

In Corbin v. Farmex, Inc., 227 Ga. App. 620 (490 SE2d 395) (1997), we reversed the trial court’s grant of summary judgment to Farmex. The Supreme Court granted certiorari and reversed in Farmex, Inc. v. Wainwright, 269 Ga. 548 (501 SE2d 802) (1998). Accordingly, our judgment in this case is vacated, and the judgment of the Supreme Court is made the judgment of this Court.

Judgment affirmed.

Andrews, C. J., McMurray, P. J., Smith, Ruffin, Eldridge, JJ, and Senior Appellate Judge Harold R. Banke concur.

Decided September 1, 1998.

Miller & Towson, Wallace Miller III, John D. Raines III, for appellants.

Reynolds & McArthur, W Carl Reynolds, Katherine L. McArthur, Adams, Barfield, Dunaway & Hankinson, David B. Dunaway, for appellee.


text:
    A97A0841.
    THOMAS v. DIAMOND RUG & CARPET MILLS.
    (505 SE2d 848)
    Decided September 1, 1998.

      Bennett & Hamilton, Rodney H. Bennett, for appellant.

      Drew, Eckl & Farnham, John C. Bruffey, Jr., Hall, Booth, Smith & Slover, Steven D. Prelutsky, for appellee.
   Beasley, Judge.

In Thomas v. Diamond Rug & Carpet Mills, 226 Ga. App. 403 (486 SE2d 664) (1997), we reversed the superior court’s affirmance of the denial of Thomas’ claim for workers’ compensation benefits. The Supreme Court of Georgia granted certiorari and reversed in Ga. Self-Insurers Guaranty Trust Fund v. Thomas, 269 Ga. 560 (501 SE2d 818) (1998). Accordingly, our judgment in this case is vacated, and the judgment of the Supreme Court is made the judgment of this Court.

Judgment affirmed.

McMurray, P. J., and Smith, J., concur.


author: McMurray, Presiding Judge.

text:
    A98A0983.
    ARMSTRONG STATE COLLEGE et al. v. McGLYNN.
    (505 SE2d 853)
   McMurray, Presiding Judge.

Plaintiff Brien McGlynn brought this action under the Georgia Tort Claims Act (“GTCA”), OCGA § 50-21-20 et seq., against defendants Armstrong State College (“ASC”) and the Regents of the University System of Georgia, seeking to recover for personal injuries sustained when, as a student enrolled at ASC in a military science Mountaineering Techniques class, plaintiff injured his right ankle. Specifically, “[o]n or about July 2, 1991, Plaintiff was practicing rappelling techniques at the 30 foot tower on Defendant ASC’s property with [Sergeant First Class (SFC)] Bryan K. Staggs in attendance as senior instructor.” During this instruction, plaintiff was allegedly “negligently instructed by SFC Staggs to let go of the rappelling rope and to free fall off the 30 foot tower so that the ‘belayer’ on the ground could apply tension to the rappel rope and bring Plaintiff to a stop before he would strike the ground. Plaintiff followed SFC Staggs’ instructions and proceeded to fall directly to the ground with great force and violence, causing him to suffer a calcaneal fracture to his right foot.” It was further alleged that SFC Staggs was an “agent of Defendants and [that] his negligent acts and omissions were within the scope of his duties, permission and authorization. As such, Defendants [were alleged to be] jointly and severally liable for damages suffered by Plaintiff due to the negligence of SFC Bryan K. Staggs.”

Defendants’ joint answer denied the allegations of negligence while admitting that “at the time of the accident . . . Plaintiff was enrolled as a student in the MIL 203 Mountaineering Techniques course offered by Armstrong State College to its students.” But defendants further asserted that “SFC Bryan K. Staggs was a full-time Army officer who was being paid by the United States Army and was assigned to Armstrong State College in order to instruct [Reserve Officer Training Corps (‘ROTC’)] courses.” After discovery, plaintiff moved for partial summary judgment over “the issue of agency,” i.e., whether SFC Staggs was an “agent of the State within the meaning of the Tort Claims Act. . . .”

It is undisputed that Sergeant (Sgt.) Staggs was an active duty noncommissioned officer in the United States Army. The ROTC program at ASC was an extension of the ROTC program established at Georgia Southern University. In support of his contention that Sgt. Staggs was a member of the ASC faculty, plaintiff relied on Sgt. Staggs’ description of the ROTC extension at ASC as a whole: “[PLAINTIFF’S COUNSEL]: Were you all considered faculty? [SERGEANT STAGGS]: YES, sir. Faculty and staff.” In addition, plaintiff points to the following circumstances as proof of agency: the ROTC program is a “separate department [that] operates academically as a part of or with the school of arts and sciences.” For academic programming, the commissioned officer in charge of the military science program at ASC reported to Joseph Adams, Dean of the School of Arts & Sciences. The officer in charge attended monthly meetings of all academic department heads, chaired by Dean Adams. Military science classes had to be approved by the faculty curriculum committee. The Army ROTC program is listed in the ASC annual catalogue, and the mountaineering course was offered to the general student body as a whole. ASC charged students a tuition fee for the course, and the students would receive a grade. The syllabus distributed to students by Sgt. Staggs was printed on ASC letterhead. ASC provides the Department of Military Science with office space, a paid secretary, and classrooms. The rappelling tower from which plaintiff fell was jointly maintained by the Department of Military Science and the plant operations personnel of ASC.

In opposition to this motion, defendants submitted the affidavit of Dean Joseph Adams, who deposed that, pursuant to the Army’s specifications, “the officer in charge of the ROTC program [is made] a professor of military science . . . [but that] enlisted men and non-commissioned officers [such as Sgt. Staggs] who taught the ROTC program had no official status with [ASC]. They were not professors or instructors.” Dean Adams further deposed that “Sgt. Staggs was not controlled in his day to day activities by anyone employed by [ASC, and that ASC] did not have the authority to terminate the employment of Sgt. Staggs and could not control his assignment to assist the instructor in charge of the ROTC courses. [ASC] could only prohibit his presence on campus if Sgt. Staggs had acted in a manner that would have compromised [ASC’s] ability to protect the students on campus [from] sexual harassment of a student or criminal conduct on campus.” Nor did ASC “have the authority to control the activities of Sgt. Staggs in teaching the mountaineering course in which the Plaintiff was injured.”

In the “CROSS-ENROLLMENT AGREEMENT FOR THE ESTABLISHMENT OF ARMY [ROTC] INSTRUCTION AT [ASC],” the Army’s Professor of Military Science agreed to provide “Senior Division Academic Instruction of [ROTC] on the campus of [ASC] . . . available to all qualified students[; to] provide such military personnel as may be required[; to provide] such available US Government property as may be authorized[; to] issue, at the expense of the US Government . . . textbooks for students enrolled in the ROTC program for courses taught by military instructors[; and to] provide grade reports to the [ASC] Registrar. . . .” In return, ASC promised to “adopt as part of its curriculum, a course of Senior División [ROTC] instruction. This curriculum will be developed in coordination with the Professor of Military Science at Georgia Southern University in accordance with current Army Regulations and directives.” ASC further promised to “recognize the senior military officer assigned to Georgia Southern University as Professor of Military Science and all ROTC personnel giving instruction at [ASC] as members of the faculty and Assistant Professors of Military Science.” In practice, “Commissioned officers assigned to [ASC] are . . . appointed as faculty just like the officer in charge is. Noncommissioned officers [such as Sgt. Staggs] do not have the same kind of appointment, but they work to instruct students.”

The trial court granted plaintiff’s motion for partial summary judgment “on the issue of agency,” concluding that the mountaineering course was “overseen by [ASC, such that Sgt. Staggs occupied] the position of an agent of [ASC] when he was instructing the mountaineering course.” The trial court further concluded that ASC “had the right and authority to control the details of [Sgt. Staggs’] work despite the fact that it did not choose to do so.” Pursuant to OCGA § 9-11-56 (h), defendants bring this direct appeal. Held:

“Prior to 1994, the GTCA waived sovereign immunity for 'state officers and employees while acting within the scope of their official duties or employment,’ and included in the definition of officers and employees 'agent(s) of the state, elected or appointed officials, law enforcement officers, and persons acting on behalf or in service of the state in any official capacity, whether with or without compensation, but the term does not include an independent contractor doing business with the state.’ OCGA §§ 50-21-22 (7); 50-21-23 (a). . . . [A]n independent contractor is one who 'exercises an independent business and ... is not subject to the immediate direction and control of the employer.’ OCGA § 51-2-4. ‘The chief test to be applied in determining whether a person is employed as a servant or as an independent contractor . . . continues to be whether the contract gives, or the employer assumes, the right to control the time, manner, and method of the performance of the work, as distinguished from the right merely to require certain definite results in conformity with the contract.’ [Cits.]” (Footnote omitted.) Williams v. Dept. of Corrections, 224 Ga. App. 571, 573 (481 SE2d 272). “The right to control the manner and method means the right to tell the employee how he shall go about doing the job in every detail, including what tools he shall use and what procedures he shall follow.” (Citations and punctuation omitted.) State of Ga. v. Goolsby, 191 Ga. App. 161, 162 (1), 163 (381 SE2d 299) (whole court).

In the case sub judice, the cross-enrollment agreement does not give ASC the right to control the time, manner and method of the Army’s performance of the contract, namely “provid[ing] Senior Division Academic Instruction of the [ROTC],” as that curriculum is developed “in accordance with current Army Regulations and directives.” Dean Adams testified that ASC did not assert any control or supervision over the time, manner and method of instruction in military science. The circumstances that the purported agent provided its own tools of the trade, such as the rappelling tower, textbooks, uniforms and equipment, and employed the Army’s approved training procedures authorize a conclusion that the Department of Military Science is operated by adjunct professors and instructors who are, in legal contemplation, independent contractors. Neese v. Britt Home Furnishings, 222 Ga. App. 292 (2), 293 (474 SE2d 44). See also Moss v. Central of Ga. R. Co., 135 Ga. App. 904, 906 (219 SE2d 593) (applying the ten factors enumerated in the Restatement, Agency 2d, § 220 (2)). Independent contractors are not agents (servants) within the meaning of OCGA § 50-21-22 (7). In view of the evidentiary posture before us, the trial court erred in granting plaintiff’s motion for partial summary judgment as to the issue of agency.

Decided September 1, 1998

Thurbert E. Baker, Attorney General, Jeffrey L. Milsteen, Deputy Attorney General, Dennis R. Dunn, Kathryn L. Allen, Senior Assistant Attorneys General, for appellants.

Godlove & Carellas, Robert L. Persse, Claude M. Kicklighter, Jr., for appellee.

Judgment reversed.

Blackburn and Eldridge, JJ, concur.


text:
    A98A1100.
    NGUYEN v. THE STATE.
    (505 SE2d 846)

   Johnson, Presiding Judge.

Thu Ha Nguyen was tried by a jury on two counts of aggravated assault for shooting her husband and stepdaughter. At trial, Nguyen sought to justify the shootings based on battered person syndrome. Nguyen did not claim to have been physically abused; instead, she claimed her husband and his children were verbally abusive, disrespectful and unkind toward her. The jury found Nguyen guilty on both counts. She appeals from the convictions entered on the verdict.

1. In two enumerations, Nguyen contends the trial court erred in not allowing her to present expert testimony on the battered person syndrome without there being any evidence that she had been subjected to physical abuse. She argues that evidence that she was verbally abused by the victims is sufficient to allow the expert testimony. Because controlling authority from the Supreme Court holds otherwise, we disagree.

In Chester v. State, 267 Ga. 9 (471 SE2d 836) (1996), the Supreme Court held that a defendant seeking to rely on the battered person syndrome to justify her use of deadly force must show she was previously subjected to acts of actual or attempted violence committed by the victims. Id. at 10-11 (2). Verbal threats alone, unaccompanied by actual or attempted violence, cannot authorize reliance upon the battered person syndrome. Id. at 11. The court held further that expert testimony as to the syndrome is not admissible absent a showing of actual or attempted violence perpetrated by the victims. We note that in defining the syndrome, the Supreme Court has consistently included “physical abuse” as one of the requirements. See, e.g., Johnson v. State, 266 Ga. 624, 626 (2) (469 SE2d 152) (1996); Selman v. State, 267 Ga. 198, 200 (3) (475 SE2d 892) (1996). Accordingly, evidence that Nguyen’s husband verbally threatened her and, together with his daughter, was verbally disrespectful or unkind toward her was not sufficient to authorize her reliance on the battered person syndrome.

Nguyen claims we should not follow Chester and should overrule the decision because the holding is not supported by case law and because scientific evidence shows that threats and emotional abuse can be as devastating as physical abuse in the development of battered person syndrome. This Court is not authorized to overrule the Supreme Court. If the law needs to be changed, it is a task for the Supreme Court or the legislature.

Moreover, the fact that some scientific research may show that emotional abuse can substitute for physical abuse in creating battered person syndrome does not require our courts to rule that verbal abuse alone supports reliance on the syndrome. As the Court stated in Chester, “scientific research and study cannot change this state’s long-standing law of justification so as to authorize one against whom only verbal threats were made to evade criminal culpability for the [use of deadly force against] one who verbally threatened [her]. Justification is a legal, not a scientific, concept. . . .” Id. at 11; see OCGA § 16-3-21 (a). These enumerations are without merit.

2. Nguyen contends that the trial court erred in not allowing a political scientist who specialized in Asian culture to testify as to differences between Asian and American cultures. Nguyen, who is Vietnamese, claims the expert’s testimony was necessary for the jury to understand her reaction to her husband’s and stepdaughter’s behavior, since conduct which incited fear in her might not have incited fear in a person born and raised in the United States. We disagree.

First, the fact that verbal threats or verbal abuse might justify the use of deadly force in some cultures is not relevant to whether the use of such force is justified under Georgia law. Second, every aspect of a defendant’s background is not relevant to a battered person defense. For example, the Supreme Court of Georgia has held that evidence of justification in battered person cases should be based solely upon the circumstances occurring between the defendant and the victim; evidence that the defendant previously suffered abuse at the hands of other men is not relevant to whether she acted with the fears of a reasonable person under the circumstances. Clenney v. State, 256 Ga. 123, 124 (3) (344 SE2d 216) (1986).

We are not persuaded by Nguyen’s argument that Smith v. State, 268 Ga. 196 (486 SE2d 819) (1997) requires a different result. Nguyen claims Smith demands a consideration of the defendant’s psychological characteristics; in this case, she argues, her psychological characteristics include her Vietnamese upbringing. Smith did not involve cultural issues. More importantly, that case involved claims and evidence of physical violence. The Court held in Smith that a defendant who was a victim of family violence or child abuse may offer battered person syndrome evidence to illustrate her reasonable belief in the imminence of the victim’s use of unlawful force. Id. at 199. The Court further reiterated that evidence that the defendant suffered from the syndrome is admissible where it would show that a victim of physical abuse would reasonably believe force was necessary. Id. In the case before us, there was no claim or evidence of violence or physical abuse. The trial court did not abuse its discretion in excluding the testimony. See Selman, supra.

Decided September 1, 1998

Westmoreland, Patterson & Moseley, Thomas W. Herman, for appellant.

Charles H. Weston, District Attorney, Thomas C. Woody II, Howard Z. Simms, Assistant District Attorneys, for appellee.

3. Inasmuch as a battered person syndrome self-defense claim was not raised by the evidence, the trial court did not err in failing to charge the jury as to the syndrome. See generally Wainwright v. State, 197 Ga. App. 43, 44 (2) (397 SE2d 456) (1990).

Judgment affirmed.

Smith, J, and Senior Appellate Judge Harold R. Banke concur.