S99G0012. MULDOVAN v. MCEACHERN et al.
S99G0012
Supreme Court of Georgia
NOVEMBER 15, 1999
DECEMBER 20, 1999
523 SE2d 566
SEARS, Justice.
Stеven E. Phillips, for appellant. Paul L. Howard, Jr., District Attorney, Bettieanne C. Hart, Assistant District Attorney, Thurbert E. Baker, Attorney General, Paula K. Smith, Senior Assistant Attorney General, Adam M. Hames, Assistant Attorney General, for appellee.
This charge is not among the suggested pattern jury instructions for criminal cases. When a legal issue involves such well-established principles as the definition of reasonable doubt, there are few, if any, circumstances which would justify a trial court‘s failure to use the suggested pattern criminal chаrges compiled by the Council of Superior Court Judges of Georgia. Accordingly, we emphatically disapprove the use of the challenged charge. Although its use here does not require reversal, continued use of the disapproved charge in disregard of this opinion may result in the reversal of future сonvictions.
Accordingly, we disapprove the language in those cases upholding the giving of this charge. E.g., Williams v. State, 210 Ga. 207, 208 (1) (78 SE2d 521) (1953); Connell v. State, 153 Ga. 151 (2) (111 SE 545) (1922); Andrews v. State, 201 Ga. App. 329 (2) (411 SE2d 52) (1991); Nebbitt v. State, 187 Ga. App. 265 (2) (370 SE2d 1) (1988); Campbell v. State, 181 Ga. App. 1 (2) (351 SE2d 209) (1986); Veasley v. State, 142 Ga. App. 863 (4) (237 SE2d 464) (1977); Deering v. State, 123 Ga. App. 223 (3) (180 SE2d 245) (1971).
Judgment affirmed. All the Justices concur.
DECIDED NOVEMBER 1, 1999 —
RECONSIDERATION DENIED DECEMBER 20, 1999.
Steven E. Phillips, for appellant.
Paul L. Howard, Jr., District Attorney, Bettieanne C. Hart, Assistant District Attorney, Thurbert E. Baker, Attorney General, Paula K. Smith, Senior Assistant Attorney General, Adam M. Hames, Assistant Attorney General, for appellee.
S99G0012. MULDOVAN v. MCEACHERN et al.
(523 SE2d 566)
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
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 еvening, 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. Severаl 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
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 аssumption 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 Aрpeals’ 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 voluntаrily 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 circumstаnces, 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
” ‘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 thе 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 leаve 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 complеtely separate defense of] contributory negligence.”14
Thus, the extent to which a plaintiff assumes the risk of injury caused by another‘s action or inaction depends upon the extent to which the plaintiff subjectively comprehended the specific hazard posed, and affirmatively or impliedly assumed the risk of harm that could be inflicted therefrom. Where a plaintiff subjectively assumed only the specific risk of harm emanating from negligent conduct, recovery is barred only for injuries that were negligently inflicted; in that situation, recovery is not barred for injuries that resulted from wilful and wanton conduct.15 However, as recognized by the Court of Appeals in Roberts v. King,16 where a plaintiff subjectivеly chooses to assume a specific risk of harm posed by wilful or wanton misconduct that he knows is contemplated by the party that inflicts the injury, recovery on the basis of such misconduct is precluded.17 In those situ-
The case of Roberts, supra, which is closely analogоus to the present matter, is instructive on this point. In Roberts, the plaintiff‘s decedent voluntarily entered into an automobile, knowing that the driver was about to participate in a dangerous drag race. The driver lost control of the car, and the passenger was killed. Affirming a directed verdict for the defendant, the Court оf Appeals held:
When one assumes the risk of the wilful and wanton misconduct of another, a recovery on the basis of such misconduct is precluded and the law will not undertake to divide the wantonness into degrees or fractions of degrees to ascertain whether the death or injury resulting was fully realized and appreciated by the one so assuming the risks. The law will hold such a one to have assumed whatever risks develop in the process of the activity engaged in.20
Applying these principles to the tragic facts of this case, it is undisputed that McEachern, knowing that the handgun was loaded (having himself placed a bullet in the cylinder only moments earlier), handed the gun to Muldovan during a game of “Russian Roulette.” Muldovan pointed the gun at McEachern and pulled the trigger, but the gun did not discharge. McEachern then told Muldovan to pull the trigger a second time, and the fatal bullet was fired. These undisputed facts establish that McEachern consentеd to assume the risk of suffering whatever harm he might sustain if the gun chamber being fired was loaded. Under the authorities discussed above, to the extent that Muldovan‘s conduct in firing the gun at his friend‘s urging was wilful or wanton, McEachern assumed the risk of harm therefrom.21 It follows that the trial court correctly granted Mul-
Judgment reversed. All the Justices concur.
BENHAM, Chief Justice, concurring.
I reluctantly concur with the majority opinion because I believe that the legislature should modify the assumption of risk defense provided for under Georgia law in tortious claims arising from wilful or wanton acts in conformance with the prevailing approach used in other states.
The common-law contributory negligence doctrine has been uniformly criticized as being overly harsh. 57A AmJur2d 752, Negligence, § 856. In response, the vast majority of states, including Georgia, have largely replaced the common-law doctrine of contributory negligence with some form of comparative negligence, where the negligence of the plaintiff is compared with the negligence of the defendant and may serve to reduce the plaintiff‘s recovery of damages instead of completely barring the plaintiff‘s action. Id.;
However, Georgia has continued to recognize a plaintiff‘s assumption of risk as a complete bar to actions for all torts rather than as a factor that reduces a plaintiff‘s recovery.
loaded has no impact on the availability of an assumption of the risk defense, because, as discussed above, the relevant inquiry on the availability of that defense is what was subjectively known by the plaintiff‘s decedent.
The potential for unfair results is great, particularly since under Georgia law assumption of risk is a complete defense against tort actions based on a defendant‘s wanton or wilful conduct or evеn a plaintiff‘s intentional conduct.
I am authorized to state that Justice Hunstein joins in this opinion.
DECIDED NOVEMBER 15, 1999 —
RECONSIDERATION DENIED DECEMBER 20, 1999.
Reinhardt, Whitley & Wilmot, Glenn Whitley, Robert C. Wilmot, for appellant.
J. Hugh Gordon, Walters, Davis & Pujadas, J. Harvey Davis, Moore & Studstill, Daniel L. Studstill, for appellees.