Landis v. Condon
| Decision Date | 03 April 1952 |
| Citation | 116 N.E.2d 602,95 Ohio App. 28 |
| Parties | , 66 Ohio Law Abs. 193, 52 O.O. 371 LANDIS et ux. v. CONDON et ux. |
| Court | Ohio Court of Appeals |
Herbert M. Eikenbary, Dayton, for plaintiffs-appellants.
Scharrer, Scharrer & Hanaghan, Dayton, for defendants-appellees.
This is an appeal on questions of law from a judgment of the Common Pleas Court dismissing plaintiffs' amended petition after the sustaining of defendants' general demurrer thereto.
The amended petition of the plaintiffs, parents of the minor child, Carl Landis, institute the action in his behalf and say:
'That on the date alleged Carl Landis, while walking along a corridor in the Colonel White School, the child of the defendants, Fred Condon, aged fourteen years, did willfully and maliciously attack the son of Nathan and Clara Landis by jumping upon his back and throwing him to the floor of said corridor.'
The injuries suffered are set out and the petition continues and avers:
'That the parents and guardians of said Fred Condon, well knew said child to be of vicious propensities and disposition, and that said child should not have been at large, without a proper guard or watch over said Fred Condon, and that said parents, the defendants herein, were negligent in letting said child run at large, knowing full well the reckless and vicious disposition of said child.'
The brief of appellants quotes the decision of the trial court on the demurrer as follows:
Condensing the petition, it avers the assault, which it is claimed was willful and malicious; that it was made by the son of the defendants who had vicious propensities and disposition, known to the parents and that they negligently failed to properly guard or restrain said child.
There is paucity of adjudication in Ohio upon the question presented. Of course, it is a safe proposition to say that conclusions of law are not sufficient against general demurrer, but the averment of knowledge is a mixed question of law and fact or of fact alone and in many instances is considered to be adequate pleading. For instance, in negligence actions against a city for the maintenance of a nuisance in the streets. In these cases it is essential that notice to the city be pleaded and proven, but such notice is charged by the averment that the city...
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...while carrying air rifle without firing it, pointed air rifle directly at another person and shot him in the eye); Landis v. Condon, 95 Ohio App. 28, 116 N.E.2d 602 (1952) (child with vicious propensities and disposition jumped upon another child's back and threw the child to the floor); Sa......
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...e.g., Cashman v. Reider's Stop-N-Shop Supermarket (1986), 29 Ohio App.3d 142, 29 OBR 158, 504 N.E.2d 487; Landis v. Condon (1952), 95 Ohio App. 28, 52 O.O. 371, 116 N.E.2d 602; Parsons v. Smithey (1973), 109 Ariz. 49, 504 P.2d 1272; Gissen v. Goodwill (Fla.1955), 80 So.2d 701; see, also, 2 ......
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...knowledge of a child's "vicious propensities" is an essential element in establishing negligent supervision. Landis v. Condon , 95 Ohio App. 28, 29–30, 116 N.E.2d 602 (2d Dist.1952). " ‘To establish foreseeability of the act or injury [pursuant to negligent supervision], plaintiff must prov......
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