Manuel v. Koonce

425 S.E.2d 921, 206 Ga. App. 582, 93 Fulton County D. Rep. 59, 1992 Ga. App. LEXIS 1705
CourtCourt of Appeals of Georgia
DecidedDecember 3, 1992
DocketA92A1297, A92A1298
StatusPublished
Cited by20 cases

This text of 425 S.E.2d 921 (Manuel v. Koonce) 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
Manuel v. Koonce, 425 S.E.2d 921, 206 Ga. App. 582, 93 Fulton County D. Rep. 59, 1992 Ga. App. LEXIS 1705 (Ga. Ct. App. 1992).

Opinions

Sognier, Chief Judge.

Plaintiffs, individually and/or in their representative capacities, brought wrongful death and personal injury suits against Scott Rowland; Rowland’s mother and stepfather, Joann and H. L. Manuel; Scott Steedley and his father, W. J. Steedley; and Huntley’s Jiffy Stores, Inc. and its employee Pamela Youmans. The trial court denied the motions for summary judgment filed by Rowland and the Manuels, and this court granted their applications for interlocutory appeal. The appeal by Huntley’s Jiffy Stores and Youmans was withdrawn with the permission of this court.

[583]*583The record establishes that appellants Joann and H. L. Manuel went to Florida for a long weekend and for the first time ever left 16-year-old appellant Scott Rowland at home alone. On July 8, 1989, the Saturday the Manuels were away, Rowland either personally or through an intermediary purchased two cases (twenty-four bottles) of beer from Huntley’s Jiffy Stores and carried it to the Manuels’ home, where over the course of the evening it was consumed. Rowland’s girl friend, Darby Hester, asked her friend, Tina Dowling, who was with Scott Steedley in his Mazda truck, to take her to the Manuels’ home that evening. The evidence in the record conflicts whether the newcomers were invited, whether they were asked to leave, whether Steedley was inebriated before he arrived, and whether Steedley consumed any of Rowland’s beer at the party. It is uncontroverted that Dowling, not Steedley, was driving Steedley’s truck when she, Steedley, and Hester left the Manuels’ home. Dowling drove Hester home then went to her own home, drove the truck to a convenience store with Steedley to purchase snack food for him, and then returned to her home before she yielded control of the truck to Steedley. Shortly after leaving Dowling’s home, Steedley crashed his truck headlong into a seven-passenger van carrying fifteen people, including appellees and/or their decedents. Two adults and four minors in the van were killed; Steedley and eight persons in the van were injured.

1. In Case No. A92A1297, the Manuels contend the trial court erred by denying their motion for summary judgment. The evidence is uncontroverted that prior to the incident in issue, Rowland had never consumed any alcohol at the Manuels’ home, provided alcohol to others at the Manuels’ home, or hosted a gathering there at which Rowland’s friends or guests had provided any alcohol. It is uncontroverted that no alcohol was present in the home when the Manuels left and that before their departure they instructed Rowland not to have any “parties,” other than a slumber party with two or three of his male friends, and explicitly directed Rowland not to use or be involved in the use of alcohol during their absence. Ms. Manuel stated in her deposition that she considered the instructions to Rowland about no parties or alcohol to have been her “duty as a parent” and explained the need for those instructions “[b]ecause he’s a teenager and that’s what teenagers do when they get a chance to.” Although the Manuels left Rowland alone, the evidence reflects that they did so after contacting Rowland’s natural father and obtaining his agreement to “keep [an] eye out and check on” his son.

Construing conflicting evidence in favor of appellees as the nonmovants, see generally GMS Air &c. v. Dept. of Human Resources, 201 Ga. App. 136, 139 (410 SE2d 341) (1991), the only evidence regarding the Manuels’ knowledge of any prior involvement of Rowland with alcohol consisted of an incident that, according to Jay [584]*584Smith, Rowland’s high school friend, occurred in the fall of 1988. Smith deposed that while Rowland was a passenger in Smith’s car, the police stopped Smith and discovered the two underage boys had been drinking. Smith deposed that both he and Rowland were fined and that their parents were summoned to the police station regarding the matter.

(a) We agree with the Manuels that to the extent appellees assert a claim against them under OCGA § 51-1-40, the trial court erred by denying the Manuels’ motion for summary judgment. The evidence is uncontroverted that the Manuels did not wilfully, knowingly, and unlawfully sell, furnish, or serve alcoholic beverages to Steedley, id. at (b), and that Rowland’s actions in regard to the alcoholic beverages at the Manuels’ home were “in the absence of and without the consent of” the Manuels. Id. at (d).

(b) Pretermitting the Manuels’ arguments that OCGA § 51-1-40 preempted appellees’ claims against them under a theory of negligent parental supervision, we find that the Manuels were entitled to summary judgment on that claim. “[T]he true test of parental negligence vel non is whether in the exercise of ordinary care [the parent] should have anticipated that harm would result from the unsupervised activities of the child and whether, if so, [the parent] exercised the proper degree of care to guard against this result. [Cit.]” Hill v. Morrison, 160 Ga. App. 151 (286 SE2d 467) (1981). Appellees present the ingenious argument that leaving a teenager unsupervised over a long weekend is equivalent to allowing a child (and all the child’s friends) unsupervised access to a dangerous instrumentality, i.e., alcohol. See, e.g., Saenz v. Andrus, 195 Ga. App. 431 (393 SE2d 724) (1990) (butcher knife); McBerry v. Ivie, 116 Ga. App. 808 (159 SE2d 108) (1967) (shotgun); Glean v. Smith, 116 Ga. App. 111 (156 SE2d 507) (1967) (loaded pistol). We agree with the Manuels, however, that they were entitled to summary judgment even if the “dangerous instrumentality” case law is applicable here. “In those cases in which the parent did not furnish the dangerous instrumentality but through negligence allowed access thereto to the child, the standard for imposing liability upon a parent is whether the parent knew of the child’s proclivity or propensity for the specific dangerous activity. If such knowledge cannot be shown on the part of [the parents], then liability cannot attach to [them], as a parent is not an insurer that the child will not harm another.” (Citations and punctuation omitted.) Saenz, supra at 433 (2).

The Manuels adduced evidence establishing that they neither knew nor should have known that Rowland had a propensity for making alcohol available to underage guests at their home during their absence. Although Smith’s testimony about the incident in which Rowland was found intoxicated in Smith’s car placed the Manuels on [585]*585notice of Rowland’s personal propensity to consume alcohol away from his home, it did not place them on notice that Rowland had any propensity whatsoever to violate their explicit orders and furnish alcohol to others at the Manuels’ home. See Saenz, supra (knowledge that child threw pocketknife against wall did not equal knowledge of child’s propensity to throw butcher knives at others). Since the Manuels had no reason to anticipate that Rowland would violate their orders about alcohol and parties and furnish alcohol to other minors at their home during their absence, they had no duty to guard against it. Id. We do not agree with appellees’ contention that the Manuels’ order to Rowland not to have parties and alcohol at the home during their absence gives rise to an inference that the Manuels knew of Rowland’s propensity to engage in such activity.

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Cite This Page — Counsel Stack

Bluebook (online)
425 S.E.2d 921, 206 Ga. App. 582, 93 Fulton County D. Rep. 59, 1992 Ga. App. LEXIS 1705, Counsel Stack Legal Research, https://law.counselstack.com/opinion/manuel-v-koonce-gactapp-1992.