Mancino v. Webb

• Decision Date: 09 February 1971
• Citation: 274 A.2d 711
• Parties: Marcia A. MANCINO, by her next friend, Francis E. Mancino, Francis E. Mancino, Christina M. Mancino, Plaintiffs, v. George R. WEBB, Guardian ad litem of Barry Webb, George R. Webb, Joan Webb, Defendants.
• Court: Delaware Superior Court

Page 711

274 A.2d 711

Marcia A. MANCINO, by her next friend, Francis E. Mancino Francis E. Mancino, Christina M. Mancino, Plaintiffs, v. George R. WEBB, Guardian ad litem of Barry Webb, George R Webb, Joan Webb, Defendants.

Superior Court of Delaware, Kent County.

Feb. 9, 1971.

Nicholas H. Rodriguez, of Schmittinger & Rodriguez, Dover, for plaintiffs.

Roger Sanders and Steven J. Rothschild, of Prickett, Ward, Burt & Sanders, Wilmington, for defendants.

OPINION

STOREY, Judge.

This is a personal injury action by a nine year old girl and her parents against a twelve year old boy and his parents arising when the girl was hit in the head by a dirt clod thrown by the boy. The complaint contains three counts alleging the above facts: The first is on behalf of the girl claiming compensatory and punitive damages from the boy, alleging his malicious, willful and wanton assault and battery on her; the second is on behalf of the girl seeking similar damages from the boy's parents, alleging their negligent failure' * * * to exercise the proper power of control over their son when they knew, or in the exercise of due care, should have known of his mischievous and reckless disposition which made injury to others a probable consequence'; and the third is on behalf of the girl's parents claiming damages for travel, lodging and telephone calls incurred while their daughter was in a hospital in another town; loss of their own wages; loss of their child's services; and mental anguish and suffering. The defendant parents have moved to dismiss the second count for failure to state a cause of action upon which relief can be granted, and to strike the second count for failure to allege negligence with sufficient particularity. Simultaneously, defendant parents have moved to strike that portion of the third count that seeks damages for travel; lodging and telephone calls, loss of wages; loss of plaintiffs' child's services; and mental anguish, on the ground that these elements are not properly recoverable as elements of damages.

The first question to be resolved is whether a complaint seeking damages for injuries caused by a child's willful and wanton act alleges a negligence cause of action against the child's parents, when it charges the parents with failure to exercise the proper power of control over their child when they knew or should have known of his mischievous and reckless disposition.

As stated in 39 Am.Jur. 695, Parent and Child, § 58:

'* * * the general rule is that a parent may be liable for the consequences of failure to exercise the power of control which he has over his children, where he knows, or in the exercise of due care should have known, that injury to another is a probable consequence.'

While indicating that failure to restrain a child known to possess dangerous tendencies may lead to parents' liability, the Court in Repko v. Seriani, 3 Conn.Cir. 374, 214 A.2d 843, 844 (1965) cited § 316, Restatement, 2 Torts, as follows:

'A parent is under a duty to exercise reasonable care so to control his minor child as to prevent it from inentionally harming others or from so conducting itself as to create an unreasonable risk of bodily harm to them, if the parent (a) knows or has reason to know that he has the ability to control his child, and (b) knows or should know of the necessity and opportunity for exercising such control.'

To the same effect see Gillespie v. Gallant, 24 Conn.Sup. 357, 1 Conn.Cir. 594, 190 A.2d 607 (1963); Guzy v. Gandel, 95 N.J.Super. 34, 229 A.2d 809, 810 (1967).

In Klein v. Sunbeam Corp., 8 Terry 526, 94 A.2d 385, 391 (1952), the Delaware Supreme Court indicated that:

'* * * A complaint will not be dismissed for failure to state a claim upon which relief can be granted unless it appears to a certainty that the plaintiff could not recover under any reasonably conceivable set of circumstances susceptible of proof.'

See also Phillips v. Delaware Power and Light Company, 194 A.2d 690, 696 (Del.Super., 1963). Utilizing this standard, and comparing the substance of plaintiffs' allegations in count two of the complaint to the above authorities, it is the Court's opinion that defendants' motion to dismiss the second count should be denied.

The second issue in this case is whether the allegation in the second count of the complaint alleges negligence with sufficient particularity. Superior Court Civil Rule 9(b), Del.C.Ann. requires averments of negligence to be stated with particularity. The purpose of this rule is to apprise the adversary of the acts or omissions by which it is alleged that a duty has been violated. See 1A; Barron and Holtzoff, Federal Practice and Procedure, § 302 at p. 224. As stated in Universal Oil Products Co. v. Vickers Petroleum Co., 2 Terry 143, 16 A.2d 795, 797 (Del.Super., 1940):

'In Campbell v. Walker, supra, it was laid down as a general rule that it is not sufficient to state the result or conclusion of fact arising from circumstances not set forth in the declaration, nor to make a general statement of the facts which admits of almost any proof to sustain it.'

Notwithstanding a relaxing of the particularity requirement where 'passive' as opposed to 'active' negligence is alleged, see Phillips v. Delaware Power and Light Company, Supra, 194 A.2d at 698, the allegations in the second count in the instant case not only fail to allege facts as to how the defendant parents failed to exercise proper power of control, but also are devoid of facts to indicate a prior mischievous and reckless disposition of the defendant child and the parents' knowledge thereof. In short, these allegations lack the required particularity and should be...