KH v. JR, @ No. 107 MAP 2002|

• Decision Date: 23 June 2003
• Docket Number: @ No. 107 MAP 2002|,@ No. 107-108 MAP 2002.
• Citation: 573 Pa. 481,826 A.2d 863
• Parties: K.H. and D.A.H., Both Individually and as Parents of A.H., v. J.R. and N.R. Appeal of J.R. . Appeal of N.R. .
• Court: Pennsylvania Supreme Court

826 A.2d 863

573 Pa. 481

K.H. and D.A.H., Both Individually and as Parents of A.H., v. J.R. and N.R.

Appeal of J.R. (@ No. ).

Appeal of N.R. (@ No. ).

Nos. 107-.

Supreme Court of Pennsylvania.

Argued December 5, 2002.

Decided June 23, 2003.

Jerry A. Snyder, Allentown, for J.R.

Robert Pandaleon, Richard J. Orloski, Allentown, for K.H. and D.A.H Kevin Charles Reid, Allentown, for N.R.

Before: CAPPY, CASTILLE, NEWMAN, SAYLOR and EAKIN, JJ.

OPINION

Justice SAYLOR.

In this case, we consider the procedure for perfecting a post-trial appeal of a pre-trial order granting summary judgment to one, but less than all defendants; the scope of the parental duty to supervise a child in the context of a shared custody arrangement; and the adequacy of a jury's award of damages.

Appellant J.R. is the father of N.R. and is divorced from his mother, T.K., who has since remarried. As part of the divorce decree, J.R. and T.K. agreed to share legal custody of N.R., with primary physical custody remaining with T.K. N.R. thus resides with his mother and stepfather during the week, spending weekends with his father. In 1994, J.R. purchased a BB gun for N.R. as a Christmas present. T.K. approved of the gift, provided that the gun was kept at J.R.'s home. N.R. was aware of such condition, was advised by J.R. concerning the safe use of the gun, and had successfully completed a gun safety program in the course of obtaining a hunting license. At some point, J.R. learned that N.R. wanted to take the gun to his mother's home. Although he did not speak with T.K. regarding the removal of the gun, J.R. allowed N.R. to take the gun after being assured by him that his mother approved. Subsequently, T.K. found the BB gun lying on top of her car in the driveway and confronted her son as to why it had been brought home and left in the open. T.K. then asked N.R. to return the gun to J.R.'s residence. Despite the request, however, N.R. never returned the BB gun, and T.K. never ascertained if he had done so.

On September 27, 1995, N.R., who at the time was fourteen years of age, was in possession of the BB gun and was playing after school with a neighbor, Appellee A.H., who was thirteen years old. At the time, N.R.'s mother and stepfather were at work. Although he had not previously misused the BB gun, on this occasion, N.R. pointed it at A.H. and, believing the gun to be unloaded, pulled the trigger, discharging a BB into A.H.'s abdomen. A.H. ultimately underwent exploratory surgery to determine the extent of the injury, with the operation revealing small perforations of the liver and colon, which were repaired by single sutures. In addition, A.H.'s appendix was removed, although it was not injured from the BB. A.H. was hospitalized for ten days, and returned to school three weeks following the procedure. The surgery left A.H. with an eight-and-one-half to nine-centimeter scar on his abdomen.

A.H.'s parents commenced a negligence action against N.R. and J.R.,¹ alleging that N.R. was negligent in firing the weapon and that J.R. was negligent in conveying the BB gun over T.K.'s objection and in failing to: supervise and control his son; keep dangerous firearms out of his son's possession; communicate with N.R.'s mother and stepfather regarding the location of the BB gun; instruct his son respecting the handling of firearms; and enroll his son in a gun safety course.² Following discovery, J.R. moved for summary judgment, arguing that the record failed to support the negligence allegations, and that he could not be held liable for negligent supervision because T.K. had primary physical custody of N.R. at the time of the accident. The trial court granted summary judgment, and A.H.'s parents proceeded to trial against N.R., who admitted negligence, thereby limiting the issue to one of damages. In this regard, A.H.'s parents presented, inter alia, expert testimony concerning the nature of the surgery and of a potential cosmetic procedure to lessen the scar. The only medical expense evidence introduced was that associated with the cosmetic surgery, which indicated a cost between $2,300 and $2,700. A.H. testified to experiencing considerable pain from the injury and to embarrassment from the appearance of the scar; however, he was undecided as to whether he would proceed with a cosmetic procedure. After the presentation of evidence, the jury found in favor of A.H.'s parents, awarding damages in the amount of $4,625. A.H.'s parents filed a motion for a new trial, challenging the entry of summary judgment on behalf of J.R., and asserting that the damage award was inadequate.

Explaining the reasons for granting summary judgment, the trial court offered that the record failed to establish negligence on the part of J.R., as he communicated with T.K. concerning the purchase of the BB gun, he instructed N.R. on the handling of firearms, he directed that the gun be kept at his (J.R.'s) home, and N.R. had completed a gun safety course. Furthermore, the court reasoned that no basis existed upon which to find that J.R. was negligent in supervising his son, as T.K. had primary physical custody of N.R. and, correspondingly, had the responsibility to control her son while he was on her property. With respect to the amount of damages, the trial court noted that: A.H. testified that the scar only bothered him when people asked about it; the jury was not shown any recent pictures of the scar; the only evidence concerning the medical expenses was connected with the cosmetic surgery; and A.H. was undecided as to whether he was going to undergo such procedure. The court therefore concluded that the verdict was not so contrary to the evidence as to shock its sense of justice.

A.H.'s parents appealed from the order denying post-trial relief and J.R. and N.R. responded by asserting that the appeal was improper, as it was filed prior to the entry of judgment. See generally Pa. R.A.P. 301(a), (c), (d), note (providing the requisites for an appealable order, including entry of judgment in the docket). To the extent that the appeal sought to challenge the order entering summary judgment, J.R. argued that it was untimely, as A.H.'s parents should have obtained a determination of finality when the order was issued. In the alternative, J.R. maintained that A.H.'s parents should have filed a separate and specific notice of appeal from the summary judgment order following entry of the order denying post-trial motions, as opposed to challenging the order in an appeal generally from the denial of post-trial relief. Reversing in a published decision, the Superior Court concluded that, where, as here, judgment was ultimately entered, a notice of appeal filed prior to the entry of judgment will be treated as timely filed. See K.H. v. J.R., 778 A.2d 695, 697 (Pa.Super.2001)

(citing Pa.R.A.P. 905(a)). Next, the court observed that the note following Pennsylvania Rule of Appellate Procedure 341,³ which concerns final orders, explains that the failure of a party to apply for a determination of finality shall not constitute a waiver, and that the matter may be raised in a subsequent appeal following the entry of a final order disposing of all claims and all parties. See id. at 698. The court did not address the assertion that a separate notice of appeal should have been filed regarding the summary judgment decision.

Proceeding to the substantive claims, the court determined that, pursuant to Section 316 of the Second Restatement of Torts, RESTATEMENT (SECOND) OF TORTS § 316 (1965) (hereinafter "Section 316 of the Restatement"), a parent has a duty to exercise reasonable care to control his or her minor child,⁴ and that, since J.R. was aware of the existence of the BB gun, knew that his son had taken it to the home of his mother, and did not speak with his son's mother concerning the return of the gun, he should have reasonably foreseen that his son would misuse the gun. See id. at 700. In reaching this conclusion, the court acknowledged that it had rendered a different holding in a similar case, J.H. ex rel. Hoffman v. Pellak, 764 A.2d 64 (Pa.Super.2000). See id. at 699. The court distinguished Pellak, explaining that the non-custodial parent in that case was unaware of the air pistol used in the incident, whereas in the present case, the father was aware of the existence and possible location of the BB gun. See id. at 700. Under such circumstances, the court concluded that there was sufficient evidence, if believed by the jury, that J.R. knew or should have known of the necessity to exercise control over N.R. See id. The court also held that the verdict of $4,625 was inadequate because: A.H. testified that he felt pain like he never felt before and was fearful of undergoing surgery; exploratory surgery was performed, resulting in a six-inch incision; and A.H. remained in the hospital for ten days, during which he underwent treatment for fear and refusal to eat. See id. at 700-01. In addition, the court noted that A.H. testified that the scar caused him some embarrassment, and that plastic surgery to lessen the scar would cost between $2,300 and $2,700. See id. at 701.

This Court allowed appeal to review whether a single notice of appeal from an order denying post-trial relief is sufficient to permit review of a prior order granting summary judgment, the extent of a parent's duty to supervise his/her child in connection with a shared custody arrangement, and the adequacy of the jury's award of damages.

I.

Concerning the threshold issue involving the propriety of the appeal, J.R. argues that A.H.'s parents waived any challenge to the order granting summary judgment by not separately and specifically appealing such order when it became final following the denial of post-trial motions and the entry of judgment. J.R. emphasizes that the notice of appeal was filed from the order denying post-trial motions; while acknowledging that such motions included a challenge to the order...