Hansen v. Etheridge

501 S.E.2d 517, 232 Ga. App. 408, 98 Fulton County D. Rep. 1892, 1998 Ga. App. LEXIS 598

• Court: Court of Appeals of Georgia
• Decided: April 3, 1998
• Docket: A97A2299
• Status: Published

Opinions

Beasley, Judge.

The trial court granted summary judgment to defendants in this wrongful death case. “ ‘On appeal from the grant of a motion for summary judgment, we review the record de novo to determine if the moving party has demonstrated there is no genuine issue of material fact and the undisputed facts, construed in a light most favorable to the non-moving party, warrant judgment as a matter of law. Gentile v. Bower, 222 Ga. App. 736, 737 (477 SE2d 130) (1996).’ Sagon Motorhomes v. Southtrust Bank of Ga., 225 Ga. App. 348, 349 (484 SE2d 21) (1997).” LPS Constr. Co. v. Ga. Dept. of Defense, 228 Ga. App. 486, 487 (491 SE2d 920).

Jacob Patton stabbed to death 18-year-old Eric Marc Hansen when Hansen attempted to break up a brawl between Patton and another partier, which erupted during a gathering hosted by Sherri Etheridge for her 15-year-old daughter in their apartment. The fatal incident occurred late in the evening at a complex owned by Grisham and Libby (“landlords”) and operated by their resident security manager, Clara Libby. When Clara Libby detected alcohol use by teens at the party, observed “a number of beer cans in Ms. Etheridge’s apartment” and noticed that the party had “spilled out into the parking lot and was getting loud and out of hand,” she told Etheridge to “break up the party.” Etheridge said she would and Ms. Libby left the apartment complex on other business. Etheridge asked people to leave, and many did. Forty-five minutes later, plaintiff’s son, severely impaired by alcohol, was killed.

Harry Hansen and Elaine W. Hansen, both as Eric’s parents and as administrators of his estate, sued the landlords and Etheridge. The Hansens appeal after the trial court granted the defendants’ motions for summary judgment.

Pursuant to the principles stated above and those articulated in Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991), summary judgment in favor of Etheridge and the landlords is proper for three reasons.

First, there is no proximate cause. In OCGA § 51-1-40 (a) the General Assembly declared “that the consumption of alcoholic beverages, rather than the sale or furnishing or serving of such beverages, is the proximate cause of any injury, including death and property damage, inflicted by an intoxicated person upon himself or upon another person, except as otherwise provided in subsection (b) of this Code section.” Subsection (b) applies only when the drinker will soon be driving a motor vehicle, which is not the case here. This statute insulates providers of alcohol from third-party claims of negligence except as provided in subsection (b). Kappa Sigma Intl. Fraternity v. Tootle, 221 Ga. App. 890, 893 (2) (473 SE2d 213) (1996).

Etheridge did not consume alcoholic beverages and cause harm; she served the beverages or allowed them to be served. The landlords neither consumed nor served the alcohol. The only persons concerned with the incident who the evidence showed consumed alcohol at the party were some of the participants in the fight, which intoxication plaintiffs allege led to Eric Hansen’s death. The negligence plaintiffs allege against the defendants was the allowance of a party where alcohol was given to underage participants. Because OCGA § 51-1-40 specifically sets forth that only the consumption, not the service of the alcohol, is the proximate cause for injuries inflicted by the intoxicated person, Etheridge and the landlords cannot be liable for Eric Hansen’s death, even if the killer were an underage drinker at the party.

Assuming the statute did not preclude a finding of proximate cause, the undisputed facts would. No evidence shows that the killer, Patton, had anything to drink at the party. Bonowitz, who was fighting with Patton, was 27 years old and legally eligible to drink. Eric Hansen, who was under 21 and had drunk, did not stab himself; Patton stabbed him. There is no proximate cause between the act of the sober Patton stabbing Hansen and the underage drinking at the party.

An analogy would be if Eric Hansen had gotten into a car driven by Patton and was killed in an auto accident caused by Patton. Patton’s negligence or even malice would not be caused by the underage drinking at the party (he not having drunk), and thus could not be logically connected to the alleged negligence of the landlords and Etheridge in allowing or encouraging the party to continue. This is true even if an intoxicated Bonowitz had scuffled with Patton as he drove; Bonowitz was 27 and eligible to drink. The allowance of underage drinking would not have been the cause.

OCGA § 51-1-18 (a), which gives a right of action to custodial parents against any person for serving alcohol to their underage children, does not apply because Eric Hansen was 18 and no longer a minor. Burch v. Uokuni Intl., 192 Ga. App. 861 (386 SE2d 889) (1989); see Eldridge v. Aronson, 221 Ga. App. 662, 664 (1) (472 SE2d 497) (1996) (“recovery by the father pursuant to OCGA § 51-1-18 was barred because his son had attained the age of majority”) (citation omitted).

The second reason for affirmance is that Etheridge asked Patton to leave the party, which he did. Bonowitz and Eric Hansen pursued Patton into the parking lot, at which time Bonowitz and Patton got into a fight that led to the stabbing of Eric Hansen when he tried to break it up. Having asked Patton to leave and having watched him leave her leased premises, what else was Etheridge to do? Was she to make sure that no one from the party followed Patton and provoked a fight somewhere else? Such seems hardly reasonable, for its strains credulity to expect a host under these circumstances to foresee that a nondrinking and uninvited party participant would engage in a malicious stabbing of another party participant off her premises.

The third reason for affirmance is that Eric Hansen voluntarily entered into the fight, albeit as a peacemaker. The cause of action against the landlords is based on premises liability, which requires them to have knowledge of the danger superior to that of the victim. Robinson v. Kroger Co., 268 Ga. 735, 736 (1) (493 SE2d 403) (1997). Where someone inserts himself into a fight, “the superior knowledge must always remain with the combatants, as they, by their voluntary participation, have selected the time, date, and place for the altercation.” Sailors v. Esmail Intl., 217 Ga. App. 811, 813 (1) (459 SE2d 465) (1995). Having inferior knowledge, the landlords cannot be held liable.

The cause of action against Etheridge fails on similar grounds. If a guest is “an active participant in a brawl which left him injured,” a social host is not liable. Driver v. Leicht, 215 Ga. App. 694, 695 (452 SE2d 165) (1994). “Even if a social host is negligent, he is not liable to an injured guest if that guest is ... an active participant in the sequence of events resulting in his injury. [Git.]” Id. Etheridge’s described actions cannot make her liable for the subsequent death as a matter of law.

For these reasons, summary judgment to Etheridge and the landlords was required.

Judgment affirmed.

Andrews, C. J., Birdsong, P. J., and Ruffin, J., concur. Smith, J., concurs in the judgment only. McMurray, P. J., and Eldridge, J., dissent.