Plaintiffs Richard and Susan Flanagan are the surviving parents and executors of the estate of Brian Flanagan. After their son died, they filed two multi-count complaints. In the first of these complaints they named as defendants: Riverside Military Academy; three of its administrators (William Maginnis, Jack Hall and Walter Krasnansky); two of its faculty members (Richard Kerr and Russell Gray); and three of its students (Jason Pullo, Thomas O’Connell and Nathan Wood). In the second complaint plaintiffs named another Riverside student (Robert Slaughter) as a defendant. With the exception of O’Connell, each of the above defendants moved for summary judgment. On appeal, plaintiffs contend that the trial court erroneously granted partial summary judgment to defendants Riverside, Kerr, Gray, Pullo, Wood and Slaughter regarding plaintiffs’ allegations that *124 these defendants were liable to plaintiffs for the wrongful death of their son and for funeral expenses. 1 We agree and reverse.
Construing the evidence in a light most favorable to plaintiffs, the facts of this case are as follows: Brian Flanagan was a cadet student at Riverside. On or about May 6, 1991, he became involved in an altercation with several other students over an earlier incident in which he had struck another cadet with a cane. These students, who were known as “cadet officers,” included defendants Pullo, O’Connell, Wood and Slaughter. According to plaintiffs, Riverside had given the cadet officers the authority to act as its agents in administering Riverside’s disciplinary system. Immediately before the altercation, Brian had inhaled Scotchgard. His body was therefore in an excited state and more susceptible to injury, and there is evidence that the cadet officers were aware of this fact.
During the altercation, the cadet officers physically restrained Brian and struck him with a cane and their fists. One of them also threw Brian to the floor, at which point the altercation continued verbally. According to plaintiffs, defendant Kerr entered the room during the incident, yet failed to act, thereby allowing the cadet officers to continue to intimidate and harass Brian. When Brian started having seizures and stopped breathing, defendant Gray was notified. According to at least one witness, however, Gray treated the situation as a joke and left the room without doing anything. Although attempts were later made to resuscitate Brian, they were unsuccessful, and Brian died.
After all the defendants had filed answers denying their liability, Riverside filed a motion for summary judgment on its own behalf and on behalf of Kerr and Gray. Thereafter, Pullo, Wood and Slaughter filed their own individual motions for summary judgment. In two separate orders dated August 24, 1994, the trial court granted partial summary judgment to each of the above defendants, concluding, based on the affidavit and deposition testimony of plaintiffs’ expert witness (Dr. Joseph Burton), that the sole proximate cause of Brian’s death was his own voluntary inhalation of Scotchgard. Plaintiffs’ appeal of the trial court’s order granting partial summary judgment to defendants Riverside, Kerr, Gray, Pullo and Wood was docketed in this court as Case No. A95A0382. Plaintiffs’ appeal of the order granting partial summary judgment to Slaughter was docketed as Case No. A95A0384. Both cases are discussed below as one.
As a general rule, causation is a jury question, and it should not be determined by a trial court as a matter of law except in plain and
*125
undisputed cases. See
McAuley v. Wills,
Although Dr. Burton stated during deposition that Brian’s inhalation of Scotchgard was the “primary mechanism” and “dominant cause” of his death, Burton’s use of these terms is not dispositive in this case. “No inflexible rule of law can be laid down for determining what would be the proximate cause of an injury. The question must be solved by the facts of each particular case.” (Citation and punctuation omitted.)
Griner v. Groover,
We also note that Burton concluded in his affidavit, “within a reasonable degree of medical certainty, that the physical and psychological trauma suffered by Brian Flanagan was the ‘precipitating cause’ of his seizure and ultimate death.” Burton later defined “precipitating cause” as meaning the “trigger mechanism” of Brian’s death. As such, we cannot conclude as a matter of law that the altercation was not the proximate or efficient cause (i.e. the one that necessarily set the other causes in operation) of Brian’s death. See
Standard Oil Co. v. Harris,
Furthermore, we reject defendants’ contention that Burton’s affi-
davit and deposition testimony are contradictory, and therefore must be construed against plaintiffs in accordance with the contradictory testimony rule. Under that rule, “a
party’s
self-conflicting testimony is to be construed against him.” (Citation and punctuation omitted; emphasis supplied.)
Stone v. Dayton Hudson Corp.,
We also find no merit in defendants’ argument that the trial court properly determined that partial summary judgment was appropriate because Brian’s own negligence in inhaling the Scotchgard exceeded that of defendants. The claims against Riverside, Pullo, Wood and Slaughter are premised on intentional torts rather than negligence. The principle of comparative negligence cannot be applied to bar a claim premised on an intentional tort. See
Terrell v. Hester,
Judgments reversed.
Notes
This appeal does not address plaintiffs’ allegations against defendants Maginnis, Hall and Krasnansky.