James v. O'Neal , 63 O.B.A.J. 3219 ( 1992 )

STUBBLEFIELD, Judge

(sitting by designation), concurring specially.

I concur, but write to reiterate the reasonableness of the actions of the O’Neals under the circumstances of this case. They did not know, as claims the dissenter, that “Devon had probably been shot.” What the O’Neals were told was that Devon had earlier said that he had been shot. However, Devon was extremely intoxicated at that time and the O’Neals’ son, Eric, had examined Devon at the scene of the shooting incident and again when making him comfortable in the O’Neals’ garage, and had found no signs of any gunshot wound. The evidence was that Eñe assumed that Devon had not been shot but that he was merely drunk. When Eric told his parents the story of the night’s happening (at around 1:00 a.m.), they went with him to the garage to check on Devon and also looked Devon over and could see no sign of any wound.

Unfortunately, Devon had been shot and had a small bloodless entry wound that was under the waist band of his boxer shorts. The wound went undiscovered, and Devon’s behavior was attributed to his intoxication. The O’Neals had called Devon’s mother and awaited her arrival. They had Eric lie down beside Devon to “keep him quiet” and because they “didn’t want him to make an attempt to get up and fall.” Unfortunately, the undiscovered and unknown wound proved fatal.

Although there was clearly a tragedy here, the facts certainly indicate that the O’Neals had no further duty to the young man. They afforded care and attention commensurate with what they reasonably believed were the facts, and no reasonable man could conclude that they owed some greater duty. Summary judgment was appropriate, and should be affirmed.