Muldovan v. McEachern

523 S.E.2d 566, 271 Ga. 805, 99 Fulton County D. Rep. 4120, 1999 Ga. LEXIS 956
Supreme Court of Georgia·Decided November 15, 1999·No. S99G0012·Published·Cited by 50 cases

Opinions

Sears, Justice.

Certiorari was granted from the Court of Appeals’ ruling that assumption of the risk is not available as a defense to tortious claims [806] arising from wilful or wanton misconduct.1 Based upon the Court of Appeals’ own precedent and other authorities, we conclude that assumption of the risk is a valid defense where a plaintiff makes a subjective decision to assume the risk of harm posed by particular wilful or wanton acts. Therefore, we reverse.

Appellant Michael Muldovan and decedent Michael McEachern, both 17 years old, were best friends. Along with other teenagers, they attended a party at a residence where alcohol was consumed. During the evening, McEachern left the party with others to obtain more alcohol, which was brought back to the party. McEachern had in his possession, a handgun that had previously been sold to Muldovan by Graham. McEachern repeatedly exhibited the handgun, pointed it at others, and operated its mechanisms. Several of those present at the party became concerned about McEachern’s handling of the gun, although McEachern told them that it was not loaded and that the bullets were in his pocket. As the evening wore on, McEachern continued pointing the unloaded gun at others, pulling the hammer back, and snapping the trigger. Concern among the partygoers increased, and one young woman went so far as to take the gun from McEachern and run outside with it. McEachern pursued her and retrieved the handgun. Muldovan and others repeatedly told McEachern to put the handgun away.

Eventually, McEachern and Muldovan sat around a dining table with several others, passing the gun back and forth, pointing it at one another and snapping the trigger. During these exchanges, McEachern repeatedly loaded and unloaded the gun. He left the table with the gun unloaded, then returned to the table, loaded the cylinder with a bullet, pointed the gun at Muldovan’s head, and snapped the trigger. The gun did not fire. There is conflicting evidence as to whether Muldovan saw McEachern load a bullet into the gun’s cylinder. McEachern then handed the gun to Muldovan, who pointed the gun back at McEachern and pulled the trigger. The gun did not discharge. McEachern told Muldovan to do it again. When Muldovan pulled the trigger a second time, the gun fired, killing McEachern.

McEachern’s parents filed suit, alleging that their son’s death was proximately caused by Muldovan’s negligence, intentional battery, and wilful and wanton misconduct.2 The trial court granted summary judgment to Muldovan on all counts. The trial court found [807] it was undisputed that McEachern knew the gun was loaded when he handed it to Muldovan, and that when he told Muldovan to fire the gun at him, McEachern consented for Muldovan to pull the trigger without incurring liability for the consequences of that action. Accordingly, the trial court concluded that McEachern had assumed the risk of being injured.3 In reaching this conclusion, the trial court noted correctly that the acts of a voluntarily intoxicated individual are judged by the same rules as the acts of a sober person.4

Although it agreed that McEachern should be held to the standard of a sober person, the Court of Appeals nonetheless reversed after finding that McEachern’s conduct did not establish a defense of assumption of the risk, because as a matter of law, the assumption of the risk defense cannot bar tortious claims based upon intentional or wilful and wanton conduct.5 In its decision, the Court of Appeals noted some authorities that favor making the assumption of the risk defense available to charges of wilful and wanton tortious conduct, but nonetheless concluded that the defense is only available when one could have avoided harm by exercising ordinary care to protect themselves from another’s negligence, and that wilful and wanton acts are more analogous to intentional conduct than they are to negligent conduct.6 This Court granted certiorari to examine whether assumption of the risk is a valid defense to claims arising from wilful and wanton conduct.

1. With reference to several opinions of this Court that are silent on the issue, the Court of Appeals’ opinion questions the viability of the principle that the “conduct of one voluntarily drunk will be measured by the same rules as those applying to a sober person.”7 Even though the Court of Appeals’ opinion ultimately upholds that principle, we take this opportunity to reiterate that a voluntarily intoxicated person’s acts will be evaluated by the same standard as a sober person’s acts. Nothing in this Court’s precedent indicates otherwise, nor should it be so construed.

2. The affirmative defense of assumption of the risk bars recovery when it is established that a plaintiff, “ ‘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.’ ”8 In Georgia, a defendant asserting an assumption of the [808] 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.9

“ ‘Knowledge of the risk is the watchword of assumption of the risk,’ ”10 and means both actual and subjective knowledge on the plaintiff’s part.11 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.12 As recently stated by this Court:

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.13

As stated by the Court of Appeals, the standard to be applied in assessing an assumption of the risk defense is “a subjective one, geared to the particular plaintiff and his situation, rather than that of a reasonable person of ordinary prudence who appears in [the completely separate defense of] contributory negligence.”14

Free access — add to your briefcase to read the full text and ask questions with AI

Muldovan v. McEachern, 523 S.E.2d 566, 271 Ga. 805, 99 Fulton County D. Rep. 4120, 1999 Ga. LEXIS 956 (Ga. 1999).

523 S.E.2d 566 (Muldovan v. McEachern) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Daniel Cook v. Smg Construction Services, LLC
Court of Appeals of Georgia, 2026
DANIELLA MEJIA v. SK BATTERY AMERICA INC
Court of Appeals of Georgia, 2026
Smg Construction Services, LLC v. Cook
Supreme Court of Georgia, 2025
ROBERT M. MCCOMMONS v. DEBRA ANN WHITE
Court of Appeals of Georgia, 2024
Patrina Williams v. City of Tybee Island
Court of Appeals of Georgia, 2022
DALY v. BERRYHILL
843 S.E.2d 870 (Supreme Court of Georgia, 2020)
Brian William Thompkins v. Enrique Gonzalez-Nunez
Court of Appeals of Georgia, 2020
Mike Smith v. Alda Jean Found
806 S.E.2d 287 (Court of Appeals of Georgia, 2017)
Johnson Street Properties, LLC v. Clure
805 S.E.2d 60 (Supreme Court of Georgia, 2017)
Thomas Fuller v. William McCormick
798 S.E.2d 280 (Court of Appeals of Georgia, 2017)
Ronald Miller v. Turner Broadcasting System, Inc.
794 S.E.2d 208 (Court of Appeals of Georgia, 2016)
Randy Taylor v. Kimberly Ann McGraw
Court of Appeals of Georgia, 2014
Taylor v. McGraw
760 S.E.2d 657 (Court of Appeals of Georgia, 2014)
Ralph James Puckett, III v. The Plastics Group, Inc.
561 F. App'x 865 (Eleventh Circuit, 2014)
Nicholas Brown v. Eco-Clean, Inc.
Court of Appeals of Georgia, 2013
Eco-Clean, Inc. v. Brown
749 S.E.2d 4 (Court of Appeals of Georgia, 2013)