Driver v. Leicht

Court of Appeals of Georgia

Driver v. Leicht

452 S.E.2d 165, 215 Ga. App. 694, 94 Fulton County D. Rep. 4110, 1994 Ga. App. LEXIS 1357

CourtCourt of Appeals of Georgia

DecidedDecember 1, 1994

DocketA94A1464

StatusPublished

Cited by12 cases

This text of 452 S.E.2d 165 (Driver v. Leicht) 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.

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Driver v. Leicht, 452 S.E.2d 165, 215 Ga. App. 694, 94 Fulton County D. Rep. 4110, 1994 Ga. App. LEXIS 1357 (Ga. Ct. App. 1994).

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Opinions

Pope, Chief Judge.

Plaintiff Henry Driver was injured in a fight with defendant Christopher Lee while they were both attending a party hosted by defendants Tim and Sheila Leicht. The trial court granted summary judgment for the Leichts, and plaintiff appeals.

After Lee bumped into plaintiff while plaintiff was playing pool, causing him to miss a shot, Lee and plaintiff had several hostile ver[695]*695bal exchanges. Tim Leicht and others advised plaintiff to go outside and “simmer down.” Plaintiff did so, but he later returned and initiated the encounter which resulted in his injury.

Relying on Moon v. Homeowners’ Assn. of Sibley Forest, 202 Ga. App. 821 (2) (415 SE2d 654) (1992), plaintiff argues that the Leichts are liable for his injury. Under Moon, a social host may be liable to an innocent guest who is injured if the host is aware of a dangerous activity going on at his party and fails to stop it. However, it is undisputed that plaintiff in this case was not an innocent guest. Rather, he was an active participant in a brawl which left him injured. Plaintiff willingly drank to excess and became involved in an altercation, and then, after being convinced to leave, voluntarily returned to initiate the encounter which resulted in his injury.

Even if a social host is negligent, he is not liable to an injured guest if that guest is an initiator of or active participant in the sequence of events resulting in his injury. See Sapp v. Effingham County Bd. of Ed., 200 Ga. App. 695 (1) (409 SE2d 89) (1991). Under such circumstances, the injured guest’s negligence rather than that of the host is the proximate cause of the injury. “ ‘Assumption of the risk is a complete defense and arises when, even if the defendant is negligent, plaintiff himself is negligent in such a way that his own negligence is the sole proximate cause. (Cits.)’ [Cit.]” Id. at 696. Accordingly, the trial court’s grant of summary judgment for the Leichts was proper.

Judgment affirmed.

Birdsong, P. J., Beasley, P. J., Andrews, Johnson, Blackburn, Smith and Ruffin, JJ., concur. McMurray, P. J., dissents.

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Pope, Chief Judge.

Plaintiff Henry Driver was injured in a fight with defendant Christopher Lee while they were both attending a party hosted by defendants Tim and Sheila Leicht. The trial court granted summary judgment for the Leichts, and plaintiff appeals.

After Lee bumped into plaintiff while plaintiff was playing pool, causing him to miss a shot, Lee and plaintiff had several hostile ver[695]*695bal exchanges. Tim Leicht and others advised plaintiff to go outside and “simmer down.” Plaintiff did so, but he later returned and initiated the encounter which resulted in his injury.

Relying on Moon v. Homeowners’ Assn. of Sibley Forest, 202 Ga. App. 821 (2) (415 SE2d 654) (1992), plaintiff argues that the Leichts are liable for his injury. Under Moon, a social host may be liable to an innocent guest who is injured if the host is aware of a dangerous activity going on at his party and fails to stop it. However, it is undisputed that plaintiff in this case was not an innocent guest. Rather, he was an active participant in a brawl which left him injured. Plaintiff willingly drank to excess and became involved in an altercation, and then, after being convinced to leave, voluntarily returned to initiate the encounter which resulted in his injury.

Even if a social host is negligent, he is not liable to an injured guest if that guest is an initiator of or active participant in the sequence of events resulting in his injury. See Sapp v. Effingham County Bd. of Ed., 200 Ga. App. 695 (1) (409 SE2d 89) (1991). Under such circumstances, the injured guest’s negligence rather than that of the host is the proximate cause of the injury. “ ‘Assumption of the risk is a complete defense and arises when, even if the defendant is negligent, plaintiff himself is negligent in such a way that his own negligence is the sole proximate cause. (Cits.)’ [Cit.]” Id. at 696. Accordingly, the trial court’s grant of summary judgment for the Leichts was proper.

Judgment affirmed.

Birdsong, P. J., Beasley, P. J., Andrews, Johnson, Blackburn, Smith and Ruffin, JJ., concur. McMurray, P. J., dissents.

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452 S.E.2d 165, 215 Ga. App. 694, 94 Fulton County D. Rep. 4110, 1994 Ga. App. LEXIS 1357, Counsel Stack Legal Research, https://law.counselstack.com/opinion/driver-v-leicht-gactapp-1994.

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