Seifert v. Owen

• Decision Date: 29 October 1969
• Docket Number: No. 1,CA-CIV,1
• Citation: 460 P.2d 19,10 Ariz.App. 483
• Parties: Charles SEIFERT and Mary Seifert, husband and wife, Appellants, v. Robert S. OWEN and Joanne Owen, husband and wife, Appellees. 920.
• Court: Arizona Court of Appeals

Page 19

460 P.2d 19

10 Ariz.App. 483

Charles SEIFERT and Mary Seifert, husband and wife, Appellants, v. Robert S. OWEN and Joanne Owen, husband and wife, Appellees.

No. 1 CA-CIV 920.

Court of Appeals of Arizona, Division 1, Department B.

Oct. 29, 1969.

Rawlins, Ellis, Burrus & Kiewit, by Norman D. Hall, Jr., Phoenix, for appellants.

McKesson, Renaud, Cook, Miller & Cordova, by Robert H. Renaud and John H. Seidel, Phoenix, for appellees.

JACOBSON, Judge.

The liability of parents for the acts of their children arising out of their ambulatory and inquisitive natures is called into question on this appeal from a judgment of the Superior Court of Maricopa County.

Appellees-defendants, Mr. and Mrs. Owen, obtained the use of a cabin located approximately seven miles from Kingman, Arizona, owned by appellants-plaintiffs, Mr. and Mrs. Seifert. The defendants and their 23-month old child arrived at the cabin on January 1, 1966, after dark in freezing weather. Mr. Owen, being familiar with the cabin, located a kerosene lantern which he took inside and lit, his family following. Mr. Owen then left the cabin to start a generator which supplied electricity to the cabin. The lighted kerosene lantern had been placed in the living room upon a table surrounded by chairs. While Mr. Owen was outside, Mrs. Owen retired to the bathroom and approximately one minute later she heard a loud noise. She immediately returned to the living room to find her child on the table, the lamp on the floor, and flames spreading. All efforts to extinguish the flames proved futile and the cabin burned to the ground. The foregoing facts are undisputed.

Judge McFate, sitting without a jury entered a judgment in favor of the defendants upon findings of fact and conclusions of law.

Appellee's counsel aptly and succinctly states the question on appeal as: 'Are parents negligent if they leave unattended and alone a child approximately two years of age in a room with easy access to a burning lantern?'

Both counsel agree the parents' liability in this case, if any, ¹ is founded upon the principles enunciated in Restatement (Second) of Torts Sec. 316, Duty of Parent to Control Conduct of Child:

'A parent is under a duty to exercise reasonable care so to control his minor child as to prevent it from intentionally 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.'

The illustration and comments in Sec. 316 coupled with a reading of the Reporter's Notes and the cases and articles cited in the Appendix of the Restatement clearly indicate that Sec. 316 is dealing with three distinct fact situations:

(1) Where the parent permits the child to have access to an instrument which, because of its nature, use and purposes is so dangerous as to constitute, in the hands of a child, an unreasonable risk to others (Firearms, dynamite, etc. See, e.g., Vallency v. Rigillo, 91 N.J.L. 307, 102 A. 348 (1917).);

(2) where the parent permits the child to have access to an instrumentality which, though not 'inherently dangerous,' is likely to be put to a dangerous use by a Known propensity of the child (Matches, baseball bat, bicycle ridden on a busy sidewalk, etc. See, e.g., Bateman v. Crim, 34 A.2d 257, (D.C.Mun.App.1943).); and

(3) where the parent fails to restrain the child from vicious conduct imperiling others and the parent Knows of the child's propensity toward such conduct (Beating up little children, etc. See, e.g., Condel v. Savo, 350 Pa. 350, 39 A.2d 51 (155 A.L.R. 81) (1944).).

See also F. Harper and F. James, Law of Torts Sec. 8.13 (1956).

As Sec. 316 of the Restatement correctly states, fact situations arising under (2) and (3) above require knowledge on the part of the parent of the propensity of the child for harmful or potentially harmful conduct. In our opinion a lighted lantern is not inherently dangerous and although at first glance it might appear that this conduct would fall within category (2) above, we do not believe that the propensity of a child to be attracted to bright objects or to climb upon chairs and tables is within the concept of habitual conduct tending to be harmful to others contemplated by Sec. 316 of the Restatement (Second) of Torts, supra.

Moreover, a review of the cases, as indicated above, would appear to limit Sec. 316 liability of a parent for the acts of his child, except in the case of dangerous instrumentalities, to those instances where there is no actual, active participation by the parent in the alleged negligent act.

The type of conduct complained of here--an adult placing a burning kerosene lantern on a table and leaving a young child alone in the room with access to it--in our opinion, is akin to the type of conduct contemplated by Sec. 302A of the Restatement (Second) of Torts (1965). ² As is pointed out in Comment (d) of Section 302A, '* * * if the actor knows or should realize that there is a serious chance of grave harm to valuable interests of others, and the utility of his own conduct is less than the risk, he is required to take...