Bartoletti v. Kushner

Court of Appeals of Georgia

Bartoletti v. Kushner

231 S.E.2d 358, 140 Ga. App. 468, 1976 Ga. App. LEXIS 1524

CourtCourt of Appeals of Georgia

DecidedOctober 22, 1976

Docket52294

StatusPublished

Cited by2 cases

This text of 231 S.E.2d 358 (Bartoletti v. Kushner) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bartoletti v. Kushner, 231 S.E.2d 358, 140 Ga. App. 468, 1976 Ga. App. LEXIS 1524 (Ga. Ct. App. 1976).

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Opinions

Quillian, Judge.

John Bartoletti, the defendant, was bom April 6, 1962. He is charged in the petition with wilfully and maliciously entering the plaintiffs home on March 5, 1974, being at that time one month short of 12 years of age, and wantonly and maliciously vandalizing the premises, destroying equipment, fixtures and personalty such as cutting up electrical wiring, bending the plumbing and filling it with debris, bursting water pipes, defacing walls, cutting telephone cables and pulling up drainage pipes. The defendant moved for summary judgment on the ground that he was immune from liability for damages because of his age. The trial court denied the motion, and an interlocutory appeal was granted. Held:

1. The motion to transfer this case to the Supreme Court is denied. The question is not one of the constitutionality of Code § 105-1806 (which has been decided in the affirmative by Hatch v. O’Neill, 231 Ga. 446 (202 SE2d 44)) but the manner of its application to the facts of this case.

2. This case is controlled by the decisions of Brady v. Lewless, 124 Ga. App. 858 (186 SE2d 310), cert. den.; Scarboro v. Lauk, 133 Ga. App. 359 (1) (210 SE2d 848); Soles v. Beasley, 137 Ga. App. 280 (223 SE2d 477). Our Supreme Court, in Hatch v. O’Neill, 231 Ga. 446, 448, supra, held that "the Court of Appeals correctly interpreted the meaning of Code § 105-1806” in Brady and agreed that "[a]n infant under the age of criminal responsibility is immune from suit for tort.”

Ashbaugh v. Trotter, 237 Ga. 46 (226 SE2d 736), is not applicable here since it was expressly restricted to the issue of whether an infant plaintiff could be guilty of contributory negligence.

It was error to deny the defendant’s motion for summary judgment.

Judgment reversed.

Bell, C. J., Clark, Webb and Marshall, JJ., concur. Deen, P. J., Stolz, McMurray and Smith, JJ., dissent. [469]*469Argued May 24, 1976 Decided October 22, 1976 Rehearing denied November 18, 1976 Donald M. Fain, Michael J. Gorby, Michael S. Reeves, for appellant. Kaler, Karesh & Frankel, Lawrence J. Movshin, for appellee.

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Quillian, Judge.

John Bartoletti, the defendant, was bom April 6, 1962. He is charged in the petition with wilfully and maliciously entering the plaintiffs home on March 5, 1974, being at that time one month short of 12 years of age, and wantonly and maliciously vandalizing the premises, destroying equipment, fixtures and personalty such as cutting up electrical wiring, bending the plumbing and filling it with debris, bursting water pipes, defacing walls, cutting telephone cables and pulling up drainage pipes. The defendant moved for summary judgment on the ground that he was immune from liability for damages because of his age. The trial court denied the motion, and an interlocutory appeal was granted. Held:

1. The motion to transfer this case to the Supreme Court is denied. The question is not one of the constitutionality of Code § 105-1806 (which has been decided in the affirmative by Hatch v. O’Neill, 231 Ga. 446 (202 SE2d 44)) but the manner of its application to the facts of this case.

2. This case is controlled by the decisions of Brady v. Lewless, 124 Ga. App. 858 (186 SE2d 310), cert. den.; Scarboro v. Lauk, 133 Ga. App. 359 (1) (210 SE2d 848); Soles v. Beasley, 137 Ga. App. 280 (223 SE2d 477). Our Supreme Court, in Hatch v. O’Neill, 231 Ga. 446, 448, supra, held that "the Court of Appeals correctly interpreted the meaning of Code § 105-1806” in Brady and agreed that "[a]n infant under the age of criminal responsibility is immune from suit for tort.”

Ashbaugh v. Trotter, 237 Ga. 46 (226 SE2d 736), is not applicable here since it was expressly restricted to the issue of whether an infant plaintiff could be guilty of contributory negligence.

It was error to deny the defendant’s motion for summary judgment.

Judgment reversed.

Bell, C. J., Clark, Webb and Marshall, JJ., concur. Deen, P. J., Stolz, McMurray and Smith, JJ., dissent. [469]*469Argued May 24, 1976 Decided October 22, 1976 Rehearing denied November 18, 1976 Donald M. Fain, Michael J. Gorby, Michael S. Reeves, for appellant. Kaler, Karesh & Frankel, Lawrence J. Movshin, for appellee.

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231 S.E.2d 358, 140 Ga. App. 468, 1976 Ga. App. LEXIS 1524, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bartoletti-v-kushner-gactapp-1976.

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