Levangie v. Dunn , 182 Ga. App. 439 ( 1987 )

Benham, Judge.

This appeal arose out of a bizarre and tragic set of events which apparently left a 16-year-old boy with serious and possibly permanent spinal injuries. Claiming error in the trial court’s granting of summary judgment, appellants lay this controversy at our feet for determination.

Michael Levangie, a 16-year-old eleventh grader, suffered a disabling spinal injury on January 12, 1985, while attending a rock concert and dance at appellee’s sports pavilion in Spalding County, Georgia. During the first of two nights of the concert, one or more fights erupted and on both nights there was evidence of alcoholic beverages being consumed on the premises even though many of the concertgoers were minors. Music was furnished by the rock group, Phylon, and as part of the dance ritual Levangie donned a wolf’s head mask and simulated banging his head in an attempt to get the crowd involved in the show. Though Levangie was not a member of the band, he was a friend of the band and he took it upon himself to perform as mentioned above to heighten the frenzied atmosphere. On the night in question, Levangie was joined by members of the audience in simulating group head-banging. While this ritual was in progress and during the playing of “Born to be Wild,” Levangie was approached from behind by Mike York, nicknamed “York the Dork,” who was obviously intoxicated from guzzling “Jack Daniel’s” whiskey. York grabbed Levangie, supposedly to perform assisted simulated headbanging, and then shook him violently, allegedly causing a severe spinal cord injury. A suit followed against Robert Dunn, d/b/a The Math Field, owner of the sports pavilion, claiming, inter alia, violations of certain ordinances and statutes as to public gatherings and failure to supervise activities. The trial court granted summary judgment to Dunn and this appeal was taken.

1. The question presented by appellants’ third enumeration of error is whether the victim’s injuries were proximately caused by appellee’s alleged negligence. Appellants’ complaint alleged that appellee negligently allowed the dance to be held on his premises without having a dance hall permit; that he allowed patrons to consume alcoholic beverages on the premises without having an alcoholic beverages consumption permit; that he inadequately supervised the safety and well-being of the patrons; and that those omissions were the proximate cause of Levangie’s injuries. We disagree.

Encompassed within the concept of negligence is an element of foreseeability (Teppenpaw v. Blaylock, 126 Ga. App. 576, 578 (191 SE2d 466) (1972)), which need not be as to the specific injury suffered but as to some injury. Mixon v. Dobbs Houses, 149 Ga. App. 481, 483 (254 SE2d 864) (1979). However, the concept does not include foreseeability of remote or unusual events. Aretz v. United States, 503 FSupp. 260 (1977). “It is well settled that there can be no proximate cause where there has intervened between the act of the defendant and the injury to the plaintiff, an independent, intervening, act of someone other than the defendant, which was not foreseeable by defendant, was not triggered by defendant’s act, and which was sufficient of itself to cause the injury.” Union Carbide v. Holton, 136 Ga. App. 726 at 729 (222 SE2d 105) (1975).

Even if appellee could have foreseen Levangie’s injury, he had no supervisory control over how the patrons danced and, therefore, he would have been powerless to prevent such an injury, whether he had a dance permit or not. Appellee had no duty to protect Levangie against such an intervening cause as a fellow party-goer walking up to and shaking him. The record indicates that Levangie’s assailant, York, had been drinking whiskey straight from the bottle prior to arriving at the dance. That fact, coupled with the fact that appellee did not sell or otherwise offer alcohol to the patrons, also created a break in the chain of causation that culminated in Levangie’s injury. Even if appellee had obtained a liquor permit he could not have prevented York from consuming his liquor elsewhere and then attending the dance. There is nothing in the record to indicate appellee was aware of York’s presence or condition before the accident occurred. Therefore, appellee could not, as a matter of law, be held responsible for Levangie’s injury.

We have said repeatedly that foreseeability as an element of negligence is a jury question (Collins v. Altamaha &c. Corp., 151 Ga. App. 491, 492 (260 SE2d 540) (1979)), except where the evidence is plain, palpable and undisputable. Western Stone &c. Corp. v. Jones, 180 Ga. App. 79, 80 (348 SE2d 478) (1986). The case before us being within the exception, the trial court did not err in granting summary judgment for appellee.

2. The holding in appellee’s favor in Division 1 of this opinion renders moot appellants’ remaining two enumerations of error regarding assumption of the risk.

Judgment affirmed.

Birdsong, C. J., Banke, P. J., Carley and Sognier, JJ., concur. Deen, P. J., McMurray, P. J., and Pope, J., dissent. Beasley, J., dissents in judgment only.