Prater v. Burns

• Decision Date: 21 January 1975
• Parties: Margie Faye PRATER, Administratrix of the Estate of Orlando Byron Prater, Deceased, Appellant, v. Michael BURNS and Jennel Jackson Burns, Appellees.
• Court: Tennessee Court of Appeals

Page 846

525 S.W.2d 846

Margie Faye PRATER, Administratrix of the Estate of Orlando

Byron Prater, Deceased, Appellant, v. Michael BURNS and Jennel Jackson Burns, Appellees.

Court of Appeals of Tennessee, Western Section.

Jan. 21, 1975.

Certiorari Denied by Supreme Court July 21, 1975.

Warren Miller, Memphis, for appellant.

J. Harold Ellis, Memphis, Joe H. Walker, Jr., Ripley, for appellees.

MATHERNE, Judge.

This lawsuit grows out of a tragic incident, wherein a .410 gauge shotgun in the hands of thirteen-year-old Michael Burns discharged and killed fourteen-year-old Orlando Byron Prater. The administratrix sues Michael Burns, and his mother Jennel Jackson Burns for damages due to the wrongful death of her son Orlando Byron Prater.

The trial judge directed a verdict in favor of the defendant mother, and the jury found in favor of Michael Burns, the minor defendant. The plaintiff appeals on the following issues: (1) The trial judge erred in granting a directed verdict for the defendant mother; (2) There is no material evidence upon which to base the verdict in favor of the defendant Michael Burns; (3) The trial judge erred in certain charges given the jury.

The defendant Michael Burns and his brother David Burns, age fifteen years, were good friends with the deceased Byron Prater. These boys were together almost daily, walking in the woods, playing, and on a few occasions they hunted together. On October 25, 1972, when Michael Burns and his brother David arrived home from school, Michael called out to his mother that they were going hunting. The boys then each obtained his respective single shot .410 gauge shotgun, and ammunition. Michael states he loaded his shotgun in the house, he thinks he unloaded it when walking out the door, and he does not remember reloading the weapon. When the two Burns boys left the house and while they were in their yard, Byron Prater rode into the yard on his pony. There is no proof that Byron Prater had a shotgun, and apparently he was not going hunting with the Burns boys on this occasion. The three boys talked a few minutes, whereupon Michael Burns, with this .410 gauge shotgun being held in a position across both his shoulders and behind his neck, turned to go to the woods. When Michael Burns turned, the shotgun he was holding discharged and the load hit Byron Practer in the face, killing him instantly.

There is no explanation of what caused the shotgun to discharge. The proof shows it was in good condition, with no defects. No defect in the ammunition was proven. The weapon was a single barrel single shot .410 gauge shotgun with an outside pull back hammer.

The administratrix, mother of the deceased boy, testified the boys were close friends, and the families have remained friendly since the incident being considered. She stated her son Byron went to the Burns home on that occasion for the sole purpose of visiting with the Burns boys. Her son had on a few occasions hunted with the Burns boys.

The defendant Jennel Jackson Burns testified that she, her son Michael and five other children made up the household, her son David being the oldest child. This defendant stated Michael had owned the shotgun in question for about two months prior to the accident. This mother stated she had hunted with Michael; had shown him how to carry a shotgun, and had told him not to carry it across both his shoulders behind his neck. Mrs. Burns stated there were three shotguns in the home, hers, Michael's and David's. She stated she bought the ammunition for the weapons, and it was available to Michael and David. Mrs. Burns said she expected the boys to tell her when they were going hunting, but she had no objection to their hunting at any available time. She stated she was talking on the telephone when her boys came home from school on the day in question, and she did not hear Michael call to her that they were going hunting. Mrs. Burns did not see the accident, and did not know at that time the Prater boy was in her yard.

Michael Burns stated he had hunted with the shotgun about twelve or thirteen times. He had been hunting considerably before obtaining the shotgun in question. Michael said he thought the shotgun was unloaded while he held it across his shoulders and behind his neck on the occasion when it discharged and killed Byron Prater. The evidence establishes there was no ill feeling between the boys. There is no proof of horseplay, pointing or waving of the shotguns during the few minutes the Burns boys talked with young Prater.

As to the defendant mother, Jennel Jackson Burns, the plaintiff alleges her negligence was the direct and proximate cause of the death of Byron Prater wherein she allowed her minor son to have and use a shotgun; failed to properly instruct her son in the use of a shotgun; and failed to supervise her son when he used the shotgun.

The plaintiff charged Michael Burns with negligence wherein he handled a shotgun in a careless and negligent manner; failed to check the shotgun to see if it was loaded; in placing the shotgun on his shoulders behind his neck; and in pointing the shotgun at Byron Prater, all of which constituted the direct and proximate cause of the death of Byron Prater.

The defendants denied all acts of negligence and averred the deceased Byron Prater 'was a social guest at the home of the defendants and that his death was the result of a freakish accident and not due to any negligence on the part of these defendants.'

The trial judge directed a verdict for the defendant Mrs. Burns on the ground the deceased child was a social guest on the premises of that defendant. The corresponding duty or degree of care thus imposed by the trial judge upon the defendant Mrs. Burns is that which she owed to a licensee, which is no duty except to refrain from willfully injuring the person or from committing negligence so gross as to amount to willfulness, or from leading him into a trap. Walker v. Williams (1964) 215 Tenn. 195, 384 S.W.2d 447; Hall v. Duke (Tenn.1974) 513 S.W.2d 776.

In the case of Smith v. Salvaggio (1914) 4 Tenn.Civ.App. (Hig.) 727, the Court in discussing the liability of a parent who permits his or her minor child to have possession of a deadly weapon, stated the rule:

'. . . the parent is chargeable with negligence in such cases, if, from all the facts and circumstances, he should have known of the probable danger and injury that might result to others from permitting the child to have the weapon in his possession (citations).

'The rule for such liability upon the part of the parent is not founded upon the relation of parent, but upon the ground of the negligence of the parent in permitting the child to have possession of the dangerous and deadly weapon, when, from his youth and inexperience, it might be reasonably anticipated, that in the use of such weapon the child would inflict injury upon others.'

We adopt the rule stated in Smith and we hold the duty owing by the defendant Mrs. Burns to the deceased Byron Prater was to not entrust the possession of the .410 gauge shotgun in her minor son Michael Burns, if it might be reasonably anticipated that due to his youth and inexperience he would inflict injury upon others in the use of the weapon.

There is respectable authority for the proposition that under certain circumstances a parent is entitled to a directed verdict in a lawsuit charging the parent with the negligent entrustment of a firearm in a minor child who injures another in the use thereof. These cases seem to hold the parent free of liability as a matter of law where the facts disclose the minor was thoroughly familiar with the use of firearms and had a history of considerable experience in handling same. See and compare: Herndobler v. Rippen (1915) 75 Or. 22, 146 P. 140; Klop v. Vanden Bos (1933) 263 Mich. 27, 248 N.W. 538; Palm v. Ivorson (1905) 117 Ill.App. 535, as cited at 68 A.L.R.2d 791.

In this respect we note the Court in Smith v. Salvaggio, supra, stated 'The question of the parent's negligence in such cases is always for the jury.' Without belaboring the import of the words, 'always for the jury,' we realize the issues of negligence and contributory negligence are normally for the jury. More importantly, however, the facts of this lawsuit made the negligence of Mrs. Burns an issue for the jury. Even though Michael Burns had some experience in hunting and Mrs. Burns had trained him in the handling of firearms, the record reveals Michael Burns was so inexperienced, untrained and irresponsible as to not know the shotgun was loaded. From the testimony of Michael Burns describing his action of loading the shotgun in the house, thinking he had unloaded, not remembering whether he reloaded, material evidence was before the jury upon which Mrs. Burns could be found negligent in the entrustment of the shotgun in Michael because of his exhibited total incompetence on the occasion of the injury. The jury could find that due to Michael's incompetence, Mrs. Burns might have reasonably anticipated injury would result to others by his use of the shotgun.

We hold the trial judge erred in directing a verdict for the defendant Mrs. Burns, and the plaintiff is granted a new trial as to that defendant. The parent's liability is not based upon the alleged negligent act of the minor in the use of the weapon. The parent's liability rests alone upon whether there was a negligent entrustment of the weapon to the minor. Where there is a negligent entrustment of a weapon to a minor, the subsequent discharge of the weapon by the minor which injures another is not such an independent intervening act as will break the chain of causation between the parent's negligence and the injury which occurred.

We would further note, however, there may arise many situations wherein...