Hansen v. Etheridge , 232 Ga. App. 408 ( 1998 )

McMurray, Presiding Judge,

dissenting.

This wrongful death case represents why Georgia’s criminal sanctions against underaged drinking remain ineffective. Contrary to the majority’s holding, the facts in this case would authorize a finding that the illegal use of alcohol by teens during an adult sanctioned, but loosely supervised party resulted in the stabbing death of 18-year-old Eric Marc Hansen (“the victim”). I, respectfully, dissent because I believe that such illegal teenage drinking activities pose lethal risks, within a potential realm of legal foreseeability; that a social host may be found liable (by a jury) for damages stemming from such illegal conduct, but that this liability should only attach if the host is aware of the criminal activity and fails to stop it. See Moon v. Homeowners’ Assn. of Sibley Forest, 202 Ga. App. 821, 822 (2) (415 SE2d 654). I also believe the same rule should apply if a security provider observes illegal teenage drinking but fails to report the crime to police.

Jacob Patton stabbed and killed the victim when the victim attempted to break up a brawl which erupted during a party that Sherri Etheridge hosted for her 15-year-old daughter. The fatal incident occurred late in the evening, at an apartment complex owned by Grisham and Libby (“the landlords”) and operated by their resident security manager, Clara Libby. Although Ms. Libby detected illegal alcohol use by teens at the party, observed “a number of beer cans in Ms. Etheridge’s apartment” and noticed that the party had “spilled out into the parking lot and was getting loud and out of hand[,]” she did not call for police assistance as was required under her watch as resident security manager. Other than telling Ms. Etheridge to “break up the party,” Ms. Libby did nothing. She instead left the apartment complex on other business. Forty-five minutes later, the teenage victim, severely impaired by alcohol, was stabbed to death when he attempted to break up a violent brawl between two other party-goers.¹

Harry Hansen and Elaine W. Hansen, individually (as the victim’s parents) and as administrators of the decedent’s estate, filed this wrongful death action against the landlords and Sherri Etheridge. The Hansens filed this appeal after the trial court granted the landlords’ and Sherri Etheridge’s respective motions for summary judgment.

“Under [Moon v. Homeowners’ Assn. of Sibley Forest, 202 Ga. App. 821, 822 (2), supra], a social host may be liable to an innocent guest who is injured if the host is aware of a dangerous activity going on at his party and fails to stop it.” Driver v. Leicht, 215 Ga. App. 694, 695 (452 SE2d 165). Construing the evidence in the case sub judice most strongly against Sherri Etheridge, she not only knew her teenage daughter’s friends were consuming alcohol illegally, but she closed her eyes to this illegal conduct as her daughter’s party progressively went out-of-control. Under such circumstances, considering proof that the teenage victim was severely intoxicated when he stepped between two brawling party-goers, and recognizing alcohol as an unpredictable mind-altering substance — too dangerous under Georgia law for teenage consumption, I would hold that genuine issues of material fact remain as to Sherri Etheridge’s alleged negligent parental conduct and supervision. Moon v. Homeowners’ Assn. of Sibley Forest, 202 Ga. App. 821, 822 (2), supra. See Hill v. Morrison, 160 Ga. App. 151 (286 SE2d 467), and cits. Compare Manuel v. Koonce, 206 Ga. App. 582, 583 (1), 584 (b) (425 SE2d 921), and Kappa Sigma Intl. Fraternity v. Tootle, 221 Ga. App. 890, 893 (2) (473 SE2d 213). Further, because the landlords’ security manager admitted that she observed illegal teenage drinking activities but failed to summon for police assistance, I would hold that genuine issues of material fact remain as to the landlords’ liability of providing inadequate security services at their apartment complex. Such holdings not only square with the facts in this case and traditional tort law principles (as Judge Eldridge demonstrates in his dissent), but also encourages enforcement of Georgia’s laws against underage drinking by placing some responsibility on adults. See Morella v. Machu, 563 A2d 881, 884 (N.J.Super.A.D. 1989).

I concur fully with Judge Eldridge’s dissent.

1 Although the events in the case sub judice are hotly disputed, I enter these facts because “ ‘[o]n appeal from the grant of a motion for summary judgment, we review the record de novo to determine if the moving party has demonstrated there is no genuine issue of material fact and the undisputed facts, construed in a light most favorable to the non-moving party, warrant judgment as a matter of law. Gentile v. Bower, 222 Ga. App. 736, 737 (477 SE2d 130) (1996).’ Sagon Motorhomes v. Southtrust Bank of Ga., 225 Ga. App. 348, 349 (484 SE2d 21) (1997).” LPS Constr. Co. v. Ga. Dept. of Defense, 228 Ga. App. 486, 487 (491 SE2d 920).