Soundara v. AMB Sports & Ent.
GA Court of Appeals, 3/6/24
No. A23A1449, 2024 WL 954114
Judge Hodges
Topics: Assault, Battery, Assumption of the Risk
Quick Take: By jumping into a brawl to aid her fiancé, Plaintiff assumed the risk, which was a bar to recovery for non-intentional torts. It did not bar her intentional tort claims such as battery.
Full Take: Lynda Soundara was injured in a brawl during a college football game at Mercedes-Benz Stadium in 2017. She sued AMB Sports & Entertainment (“AMB Sports”) and the Atlanta Falcons Stadium Company (“StadCo”) (collectively, “the Stadium Defendants”); the Stadium Defendants’ security service, SAFE Management of Georgia (“SAFE”); as well as Charles Kraver Jr. (“Kraver Jr.”) and his son, Charles Kraver III (“Kraver III”) (collectively, “the Kravers”).
So what happened? Soundara and her companions were sitting in the Florida State University section of the area of the stadium, also called the “seating bowl.” The Kravers are University of Alabama fans but had mistakenly bought tickets for seats in the Florida State section. During the game, Soundara left to use the restroom and purchase concessions. While she was gone, the Kravers became involved in a fight in the seating bowl, punching and hitting several fans including Soundara’s fiancé’s brother-in-law.
StadCo employees escorted the Kravers to the concourse area outside the seating bowl. But that’s where the bathrooms and concessions are. When Soundara’s fiancé exited the restroom, the brawl between the Kraver group and Soundara’s group began again. Both sides claimed that the other started it and that they only attacked members of the other group in order to defend their own family member.
For Soundara’s part, she walked up to the fighting group, got “knocked down onto her bottom,” got up, took a step or two backwards toward the wall and away from the fight, and then pulled off her sandal and ran directly into the fight, striking people with the sandal in her hand. Kraver Jr. then grabbed Soundara by her long hair and slammed her to the ground before security workers moved in to restrain him. Soundara testified that she did not start the fight and joined in to try and protect her fiancé.
Soundara sued for negligence and vicarious liability against the Stadium Defendants and SAFE, respectively. She asserted claims of assault and battery against the Kravers. All defendants moved for summary judgment contending, among other things, that Soundara cannot recover because she assumed the risk of harm by voluntarily inserting herself into an ongoing altercation. The trial court granted all three motions in separate and brief orders. Soundara appealed the orders.
Soundara argued that because employees of the Stadium Defendants and of SAFE knew that fights could erupt during football games and also knew of the initial fight in the seating bowl, they had superior knowledge of the risk for later violence. She also argues that the Stadium Defendants and SAFE violated their own safety policies, failed to guard, warn, and protect her, and failed to quickly report the incident to the Stadium Operation Center. She avers that the Stadium Defendants and SAFE were the proximate cause of her injuries because, inter alia, they neither prevented the Kravers from walking back toward the seating bowl nor ejected them from the stadium. Soundara further asserts that because the Stadium Defendants failed to show that she lacked care for her own safety and that no prudent person would have acted as she did, they have failed to show that she assumed the risk of injury. The Court disagreed.
Assumption of the risk is a complete defense and arises when, even if defendant is negligent, plaintiff herself is negligent in such a way that her own negligence is the sole proximate cause. Although issues of negligence, lack of care in avoiding the negligence of others, lack of care for one's own safety, and assumption of the risk are ordinarily not susceptible to summary adjudication, where the evidence shows clearly and palpably that the jury could reasonably draw but one conclusion, the issue of assumption of risk may be determined on summary judgment.
The elements of assumption of risk are: (1) a hazard or danger which is inconsistent with the safety of the invitee, (2) the invitee must know and appreciate the danger, and (3) there must be an acquiescence or willingness on the part of the invitee to proceed in spite of the danger. The plaintiff must at all times use ordinary care for her own safety; and second, the plaintiff must use ordinary care to avoid the consequences of the defendant's negligence when it is apparent or when in the exercise of ordinary care it should become apparent.
A business invitee on private premises assumes the risk of a danger that she knows about and fully comprehends or that is sufficiently obvious. Where a plaintiff accepts a risk so obvious that taking it amounts to failure to exercise ordinary care for her own safety, or recklessly to test an observed and clearly obvious peril, she cannot recover. A person cannot undertake to do an obviously dangerous thing without herself being guilty of such lack of due care for her own safety as to bar her from recovery if she is injured.
Here, Soundara had “a clear choice of alternative actions. It is well settled that an adult of ordinary intelligence assumes the risk of possible injury when she deliberately and voluntarily joins in a fight, or enters into a fight for the purpose of breaking it up. Since any breach of duty by the Stadium Defendants was not the ‘proximate cause’ of Soundara's injuries, the trial court properly granted the Stadium Defendants’ motion for summary judgment.”
In regard to the claims of civil assault and battery against the Kravers, the trial court granted summary judgment in an order containing no findings of fact or conclusions of law. Kraver Jr.’s only argument was that he deserved summary judgment because Soundara assumed the risk of harm when she inserted herself into the fight; Soundara countered that she did not assume the risk of harm. Both arguments are misguided. It is well-settled that assault and battery are intentional torts. Assumption of the risk is not a defense to an intentional tort. Neither are comparative negligence, negligence per se, assumption of the risk or contributory negligence. Thus, the trial court erred in entering summary judgment in Kraver Jr.’s favor, and its decision in this regard must be reversed.
Her claim of civil conspiracy against Kraver III, who did not touch her but (according to the allegations) worked in concert with Kraver, Jr.’s intentional tort, is contingent on proving the son’s intentional tort. Summary judgment was premature. AFFIRMED IN PART, and REVERSED IN PART.