James v. O'Neal

RAPP, Presiding Judge. The plain facts are that two young adults went out on the town, drinking and riding in a motor vehicle. Devon James, who would die this night, was so intoxicated that he at one point, upon being left alone by Eric Riley while he went into a teen nightspot, got out of the vehicle and was later found lying in a ditch unconscious. Riley himself returned to the vehicle because he too was drunk and had been told to leave the teen nightspot. Riley placed James into the vehicle and started home with James asleep or passed out. Riley, while jockeying for position with another — 32 — vehicle, stopped by it at a stoplight. James, who had woken up, got out and walked to the other vehicle. Riley heard a “pop” above the radio. James went to one knee and the other vehicle drove away. Riley assisted James to the vehicle and, thinking there was a possibility of a shot, examined him briefly and found no blood or other evidence of a gunshot wound. He then chased the other vehicle as James did not apparently request medical aid or for that matter any aid. Failing to catch the other vehicle, he then drove to the house of his aunt and uncle, the defendants O’Neals. John O’Neal met the boys at the door. Riley said his friend was drunk and requested that he be allowed to spend the night. Shirley O’Neal refused and called James’ mother, the plaintiff, told the plaintiff her son had been drinking, was rowdy and acting up in her front yard and garage and told her to come and get him. The boy’s mother agreed to do so but delayed in order to obtain help because her son was violent when drunk and she could not handle him. She did not tell the O’Neals she was going to delay her arrival or that she was going to obtain assistance. She delayed not only before leaving her house but also approximately thirty minutes at the house of a friend where she stopped to get assistance. Meanwhile, Riley took James into the garage, quieted him down, took off his clothes except his shorts and covered him with a blanket, waiting for James’ mother to arrive. Riley then went into the house and told the O’Neals of the car and that he had thought he heard a gunshot. He also stated he had examined his friend James for blood and a possible gunshot wound at the stoplight and also when he took his clothes off in the garage and found neither. Riley went to the garage and went to sleep beside James. When James’ mother finally arrived she saw both boys on the garage floor on a blanket, one asleep and the other dead. The police on professional examination located a small, apparently bloodless bullet wound under the waist band of James’ boxer shorts. On these facts the plaintiffs filed a lawsuit grounding their claim against the defendants in negligence. The trial court granted summary judgment in favor of the O’Neals, and the plaintiffs now appeal asserting as error that a genuine issue of fact existed as to whether the O’Neals breached a legal duty to the plaintiffs’ son. This appeal is fatally flawed for the simple reason that negligence requires a duty that was breached. The plaintiffs have failed to establish a duty owed them or the deceased. The youth’s friend had examined him after what he thought was possibly a gunshot and found nothing. Even after undressing him at the O’Neals’ home to make him more comfortable so he could lie down in the garage and sleep off the alcohol, he again found no evidence of a wound. Riley quieted down from what for all purposes was a rowdy, known violent drunk he brought to the O’Neals’ home to sleep off the effects of alcohol. They called the young man’s parents to come and take care of their son. The plaintiff delayed because she knew she could not handle her son’s violence by herself when he was drunk. The youth’s mother, upon being requested to pick him up from the O’Neals’ home, twice delayed prior to showing up at the O’Neals — once at her home approximately fifteen minutes and then an additional twenty-five minutes at her friend’s house. This then constitutes the plaintiffs’ cause of “negligence.” The plaintiffs have wholly failed to demonstrate a scintilla of duty beyond what the O’Neals thought they were undertaking — to give shelter to a drunken violent-prone youth pending the parents’ delayed arrival. To support this alleged duty the plaintiffs cite a secondary source for a general principle that if one attempts to care for an injured person they are required to provide proper care. This too must fail for the simple reason there has been shown no undertaking of care other than to quiet and temporarily shelter a rowdy violent young drunk, suffering from an excess of alcohol, pending the expected eminent arrival of his parent. The plaintiffs’ reliance on Nye v. Cox, 440 P.2d — 33 — 683 (Okla.1968), is also misplaced. Here the deceased was drunk. It was not known that he was shot or injured. His actions— jumping around and being rowdy in the yard and garage — are not actions indicative of a fatal or even nonfatal gunshot wound. The plaintiffs here have failed to establish any knowledge of a gunshot wound or any assumption of care for an injured person other than as one handicapped by alcohol poisoning. Care appropriate to a drunk, violent young man was given. Nye requires the plaintiffs to establish the deceased’s injury in whole or in part from the defendants’ negligence, but prior to the negligence there must be a duty — which is here wholly missing. There is no such thing as negligence in the air. Neither the concept of duty or negligence may be grafted onto a set of facts to grow a tort. It is well established that negligence can only exist where there is a duty owed and breached. See Nicholson v. Tacker, 512 P.2d 156, 158 (Okla.1973). Here the plaintiffs wholly failed to establish even the remotest concept of duty owed the deceased. The trial court’s judgment was correct and should be affirmed. STUBBLEFIELD, J. (sitting by designation), concurs specially. BRIGHTMIRE, J., dissents.