SW Legal Educational Publishing

Willful Misconduct Not a Bar to Assumption of the Risk Defense
Description The high court of Georgia held that assumption of the risk is a valid defense that can be raised even in cases of intentional willful misconduct. The fact of intoxication does not change the legal standards applied to the parties involved.
Topic Torts
Key Words Willful Misconduct; Assumption of the Risk; Intoxication
C A S E   S U M M A R Y
Facts Two 17-year old boys, Muldovan and McEachern, were drinking and playing with a pistol at a party. Despite warnings from others to stop, they kept loading and unloading the gun, handing it back and forth, pointing it at each other, and pulling the trigger. One time, McEachern told Muldovan to pull the trigger; he did and killed McEachern. McEachern's parents sued Muldovan for negligence, intentional battery, and willful misconduct. The trial court granted Muldovan summary judgment, holding that McEachern assumed the risk of being killed; the fact of intoxication did not matter. The appeals court reversed, holding that assumption of the risk is not a defense in case of willful misconduct. Muldovan appealed.
Decision The Georgia high court reversed. "A voluntarily intoxicated person's acts will be evaluated by the same standard as a sober person's acts... The affirmative defense of assumption of the risk bars recovery when it is established that a plaintiff 'without coercion or circumstances, chooses a course of action with full knowledge of its dangers while exercising a free choice whether to engage in the act or not.' In Georgia, a defendant asserting an assumption of the risk defense must establish that the plaintiff (1) has actual knowledge of the danger; (2) understood and appreciated the risks associated with such danger; and (3) voluntarily exposed himself to those risks." Summary judgment for Muldovan.
Citation Muldovan v. McEachern, 523 S.E.2d 566 (Sup. Ct., Ga., 1999)

Back to Torts Listings

©1997-2001  South-Western, All Rights Reserved