Herrin v. Lamar, 39538

• Decision Date: 21 May 1962
• Docket Number: No. 39538,No. 3,39538,3
• Citation: 106 Ga.App. 91,126 S.E.2d 454
• Parties: D. L. HERRIN, by Next Friend v. Marlin LAMAR et al
• Court: Georgia Court of Appeals

Page 454

126 S.E.2d 454

106 Ga.App. 91

D. L. HERRIN, by Next Friend v. Marlin LAMAR et al.

No. 39538.

Court of Appeals of Georgia, Division No. 3.

May 21, 1962.

Syllabus by the Court

1. After an owner of property, or his agent, becomes aware of the presence there of a person, the duty of exercising ordinary care is owed to such person whether he was a licensee or an invitee.

2. The petition stated a cause of action against the parents of a ten-year-old girl who ran over plaintiff's foot while operating a riding power lawn mower in the defendants' yard in the presence of, with the consent of and under the direction of the defendant wife, who was allegedly the husband's agent.

Bass, Burger, Kidd & Rich, Casper Rich, Atlanta, for plaintiff in error.

Edwards, Bentley, Awtrey & Bartlett, Scott S. Edwards, Jr., Marietta, for defendants in error.

EBERHARDT, Judge.

This is a personal injury action brought by Leslie E. Herrin, Jr., as next friend of David Herrin against Mr. and Mrs. Marlin Lamar. Simply stated, the petition alleged that the minor plaintiff was run over and injured by a riding lawn mower operated by defendants' ten-year-old daughter in the presence of and under instruction from the defendant wife. The parties were next-door neighbors and the incident occurred on the defendants' front lawn. The defendants' general demurrer was sustained.

1. The first matter to be decided is the duty owed by the defendants to the minor plaintiff. The petition alleges that it was 'customary and the common occurance' (sic) for the minor plaintiff and the defendants' children to play in the yards of each other. There seems to be no Georgia case adjudicating whether the plaintiff was an invitee or licensee under these facts. While there are many cases holding that an invitation may be implied by 'known, customary use,' e. g., Anderson v. Cooper, 214 Ga. 164, 169, 104 S.E.2d 90, and citations, we have found none which holds a person similarly situated to plaintiff minor to be an invitee.

However, 'the ultimate result so far as the question of the degree of care due the plaintiff is the same under the peculiar circumstances pleaded whether he was a licensee or an invitee' because, after the owner of property becomes aware of or should anticipate the presence of the licensee, the duty is on the owner to exercise ordinary care to avoid injuring him. Cooper v. Anderson, 96 Ga.App. 800, 806, 808, 101 S.E.2d 770, and citations; Henderson v. Baird, 100 Ga.App. 627, 631, 112 S.E.2d 221. The pleadings here amply show that the defendant wife knew of the presence of the plaintiff. Cf. Curl v. Cherry, 105 Ga.App. 239, 124 S.E.2d 289.

The duty owed plaintiff minor, then, was one of ordinary care. Was the duty violated? The allegations of negligence are:

'(1) In permitting a child of such tender age to use the lawn mower in their front yard when they knew that [plaintiff minor] was present.

'(2) In furnishing the said lawn mower to said child of such tender years and permitting her to use same under the circumstances and conditions hereinabove alleged.'

We think the duty of ordinary care was clearly violated by the defendants' daughter. The only question remaining is that of the defendants' liability under the circumstances here for the acts of their daughter.

2. The Code has long made provision concerning liability for the torts of one's child. Code § 105-108. (For the history of this section, see Curtis v. Ashworth, 165 Ga. 782, 142 S.E. 111, 59 A.L.R. 1457.) However, the basis of liability is not the parental relationship. Chastain v. Johns, 120 Ga. 977, 48 S.E. 343, 66 L.R.A. 958; Skelton v. Gambrell, 80 Ga.App. 880 (3), 57 S.E.2d 694. Excluding cases applying the 'family car doctrine,' recovery against the parents has been denied in situations where, because of an act of the child, plaintiff was blinded by sulphuric acid in a school laboratory, Stanford v. Smith, 43 Ga.App. 747, 160 S.E. 93, conf. to cert. quest., 173 Ga. 165, 159 S.E. 666; killed by pistol wounds inflicted by a fourteen-year-old (Skelton v. Gambrell, 80 Ga.App. 880, 57 S.E.2d 694, supra); stabbed by a fifteen-year-old who was allegedly 'reckless, careless, indiscreet, and indifferent as to the rights of others,' Hulsey v. Hightower, 44 Ga.App. 455, 161 S.E. 664; struck by a bicycle being ridden on the sidewalk in violation of an ordinance by a fourteen-year-old on his way to school (Calhoun v. Pair, 71 Ga.App. 211, 30 S.E.2d 776, conf. to cert. quest., 197 Ga. 703, 30 S.E.2d 180; struck by a lawn rake left accessible to a minor (Matthews v. Johnson, 100 Ga.App. 331, 111 S.E.2d 158), and where his livestock was shot (Chastain v. Johns, 120 Ga. 977, 48 S.E. 343, 66 L.R.A. 958, supra). See, as to gun cases, Annot. 68 A.L.R.2d 782; 13 GBJ 101; 14 GBJ 267; cf., Milton Bradley Co. of Georgia v. Cooper, 79 Ga.App. 302, 53 S.E.2d 761, 11 A.L.R.2d 1019, and Gamble v. Davis, 98 Ga.App. 470, 106 S.E.2d 89, both firecracker cases; and, as to intentional torts by the child, Annot. 155 A.L.R. 85. Note that most of the above cases were decided before Ga.L., 1956, p. 699 (Code Ann. § 105-113) providing for parental liability for 'wilful and wanton acts of vandalism' by a minor under seventeen years of age.

None of these cases involves riding, rotary cutting, power lawn mowers. Since the advent of such lawn mowers in the recent past, there is a paucity of Georgia cases concerning these instrumentalities and those decided have involved injuries received because of the missile-launching propensities of the rotary mowing action. ¹ See Taylor v. Atlanta Gas Light Co., 93 Ga.App. 766, 92 S.E.2d 709, where the defendant gas company left a piece of pipe on a lawn, which pipe was later thrown into the air by a power lawn mower striking the plaintiff. The court held that no cause of action was stated because there was an intervening and superseding cause; and see Purkey v. Sears, Roebuck & Co., 220 F.2d 700 (5th Cir.) where Georgia Law was applied to support a directed verdict for the vendor-defendant in a products liability case. Similar cases are found in Annot., 80 A.L.R.2d 598, 663. The risk of being cut by the moving blades, as here, is a more obvious one which would tend to make the case somewhat simpler from a foreseeability standpoint.

Apparently the only cases allowing recovery against a parent for the injury inflicted by a minor child are Faith v. Massengill 104 Ga.App. 348, 121 S.E.2d 657, and Davis v. Gavalas, 37 Ga.App. 242, 139 S.E. 577. See Milton Bradley Co. of Georgia v. Cooper, 79 Ga.App. 302, 53 S.E.2d 761, 11 A.L.R.2d 1019, supra. Faith...