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Parents not responsible for partygoer’s death, COA holds

Heath Hamacher//July 1, 2015

Parents not responsible for partygoer’s death, COA holds

Heath Hamacher//July 1, 2015

The parents of a teenager convicted in the death of a fellow teen are not civilly liable, the North Carolina Court of Appeals found on June 16, upholding an earlier ruling from the Transylvania County Superior Court.alcoholic drinks

Even if the parents, who were out of town on business at the time, had a duty and breached that duty to control their son’s behavior, the appeals court ruled, the plaintiff failed to show that it was reasonably foreseeable that such a breach would result in the death of the plaintiff’s son.

Barbara Leonard, the mother of the 16-year-old decedent, filed the negligence lawsuit on his behalf.

According to court documents, 19-year-old Scott Fisher, the son of defendant Tracy Fisher and stepson of Shawn Fisher, threw a party at his home (though it was disputed at the summary judgment hearing whether he actually lived there) on Feb. 21, 2010, without his parents’ knowledge or consent.

Although most partygoers were underage, alcohol was present, court records show, and Scott admitted to being intoxicated at the party.

Scott had invited a number of guests, according to court documents, and authorized at least one friend, Michael Hall, to bring additional guests. Showing up to the party with Hall was the plaintiff’s’ son, Michael Rogers.

Rogers had alcohol in his system, an autopsy revealed, and several people either testified or gave statements that he was “acting drunk” and making guests uncomfortable.

According to court documents, Scott and Rogers got into an altercation at some point that resulted in Rogers being knocked to the ground and punched several times. “Evidence suggests,” documents say, that Rogers was also beaten by another partygoer prior to his fight with Scott.

About 11:30 p.m., Shawn’s uncle and neighbor, Keith Fisher, called Shawn Fisher to let him know that there was a party going on at his house. Shawn reportedly told Keith to break up the party, so Keith walked next door and asked everyone to leave. He allegedly saw Rogers on the floor but was unsure whether he’d been in a fight or had just fallen down. Rogers, Keith said, was “flopping around drunk.”

According to Keith, Rogers had been moved and was lying on the ground outside when he jumped up and started “beating his chest and cussing” before getting into a car with Scott, Hall―whom he came with―and two girls.

That would be the last time anyone saw him alive.

Their intentions, Scott said, were to take Michael home, but he testified that Michael began “freaking out” and hitting him in the back of the head.

The group drove Michael to a parking lot near the intersection of King Road and U.S. Highway 64, court records show, where he exited the vehicle. It’s unclear whether he exited voluntarily and whether he was beaten again after getting out of the car.

For the court, Chief Judge Linda McGee wrote, “It is not disputed that Michael was left in a secluded parking lot, late at night in sub-freezing temperatures, with his torso completely unclothed,” she wrote.

Court records show the temperature that night was in the 20s.

Michael called his parents, but couldn’t tell them his location. The defendants, in turn, called local authorities who began their search for the teen. The Fishers also contacted Scott multiple times, according to court documents, and relayed information gathered from him (though some of it was not entirely true) to police, whom they also contacted directly during the night and early morning.

“All evidence suggests that, when Defendants first spoke with police and were alerted to the fact that Michael was missing and potentially in danger, they fully cooperated with the police,” McGee wrote. “Defendants gave permission for police to enter the house.”

Police searched the surrounding area for hours before finding Michael’s body between 11 a.m. and noon the next day, according to records. He had wandered into an animal pasture, according to the criminal complaint, where he froze to death.

Scott was tried and convicted in criminal court of involuntary manslaughter on May 18, 2012, and sentenced to 19 to 23 months in prison. Leonard filed the civil suit on June 8, 2012, alleging common law negligence and negligence based upon premises liability.

The Fishers filed for summary judgment on Jan. 31, 2014, and their motion was granted on March 12, 2014.

On appeal, Leonard abandoned her argument that the Fishers had a duty to control Scott based on a parent-child relationship, given his age, but maintained her argument that the duty was based on a landowner-licensee relationship.

“And Shawn and Tracy Fisher were the landowners with the actual knowledge of the danger that was happening on their premises at the time it was happening,” Leonard argued. “If [Defendants] had acted sooner within those two hours, law enforcement might have been able to reach Michael while he was still alive before he had succumbed to hypothermia.”

The court, however, found that the arguments were “speculative rather than conclusory” and failed to raise a genuine issue of material fact regarding the proximate cause element of the claim.

Leonard’s attorney, James Reynolds of Karolyi-Reynolds in Asheville, said he was surprised at the ruling on this issue.

“We thought the existence of an active, urgent search-and-rescue effort by multiple law enforcement agencies was enough to show emergency responders would have probably been able to save Michael from hypothermia if Shawn and Tracy Fisher had picked up the phone and dialed 9-1-1 when they first found out about the wild party and the injured boy at their house, rather than just silently waiting the approximately two hours before law enforcement located their then-empty house, and established contact with the Fisher family from there,” Reynolds wrote in an email.

The court also found that the issue of whether a landowner-licensee relationship involving non-commercial property can impose a duty on landowners to control the licensee’s behavior and support a premises liability claim appears to be an “unsettled” question in North Carolina.

Citing 1998’s Liller v. Quick Stop Food Mart, Inc., the court noted that even if the defendants here had a duty to control their son and breached that duty, the plaintiff still needed to show that “a person of ordinary prudence should have foreseen that [Michael’s] injury was probable under the circumstances” as a result of that breach.

The Fishers were represented by Joseph Nelson of Dickey, McCamey & Chilcote in Charlotte.

“While the underlying circumstances of this case are tragic, Plaintiff’s case against my clients was based on speculation and an improper legal theory, and my clients are grateful that the Court of Appeals recognized that,” Nelson wrote in an email.

Reynolds said that while the details of the case have been emotionally taxing and Leonard is disappointed with the court’s ruling, he’s appreciative that the Court of Appeals gave it “careful, thoughtful review.”

“It is a privilege to represent the estate in this tragic case, and I look forward to continuing to prosecute the claims against the remaining defendants now that this interlocutory appeal is complete,” he said.

The 16-page decision is Leonard v. Transylvania County Department of Social Services (Lawyers Weekly No. 15-16-0626). The full text of the opinion is available online at

Follow Heath Hamacher on Twitter @NCLWHamacher


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