Smith v. Brooks, A00A2012.

• Decision Date: 06 February 2001
• Docket Number: No. A00A2012.,A00A2012.
• Citation: 545 S.E.2d 135,247 Ga. App. 831
• Parties: SMITH v. BROOKS et al.
• Court: Georgia Court of Appeals

545 S.E.2d 135

247 Ga. App. 831

SMITH v. BROOKS et al.

No. A00A2012.

Court of Appeals of Georgia.

February 6, 2001.

Webb, Stuckey & Lindsey, Fairburn, Martin C. Jones, Jonesboro, William M. McHugh Jr., Fairburn, Sharon S. Whitwell, Locust Grove, for appellant.

Seacrest, Karesh, Tate & Bicknese, Gary L. Seacrest, Annarita M. Busbee, Atlanta, for appellees.

SMITH, Presiding Judge.

Debbie Smith brought this action as custodian of Patrick Johnson, a ten-year-old child, after Patrick was accidentally shot and wounded by his brother Danny with a .22 rifle while visiting Gary Brooks, Jr. at the Brookses' home. Smith contended that the Brookses were negligent in allowing the boys access to a firearm and ammunition while they were absent from the home. After discovery, including depositions of the parties and witnesses, the trial court granted summary judgment in favor of the Brookses. Because Smith has failed to show, as required, both that the Brookses negligently made available a dangerous instrumentality to their son and that they knew of a proclivity on the part of their son for engaging in the specific dangerous activity, we must affirm.

Construed in favor of the respondent, the evidence shows that Smith's sons, Patrick and Danny Johnson, were ten and twelve years old respectively at the time of the incident. They told their mother they were going to the park, but Patrick went to the Brookses' home instead and Danny followed him. When they arrived, they found 12-year-old Gary, Jr. home alone.

Both Gary, Jr. and Danny testified that Patrick continually asked to shoot the antique rifle hanging over the fireplace mantel. This single-shot .22 caliber rifle was approximately 100 years old, had not been fired for years, and was worn out and partially inoperable, requiring the use of a pair of pliers to remove a shell. The rifle, which had belonged to Mr. Brooks's grandfather, was hanging above the mantelpiece between six and one-half and seven feet from the floor.

Patrick continued to ask to shoot the rifle until Danny told Gary, Jr. to "just let him do it so he'll shut up." But the rifle was unloaded, and Mr. Brooks kept all his other guns, all ammunition, and a knife collection locked in a gun cabinet in his bedroom. This cabinet was a solid oak cabinet with a half-inch plywood back, weighing between 75 and 100 pounds. It was kept locked, and Mr. Brooks kept the keys with him at all times. One or more of the boys pried open the back of the cabinet. According to Gary, Jr., he and Patrick used a screwdriver to pry off the back of the cabinet. Danny, on the other hand, contended that Gary, Jr. opened the back of the cabinet by himself and did so easily. Patrick claimed the cabinet was "already opened" when he first walked by.

Because the boys were unable to get into the drawer in which the ammunition was stored, they removed cartridges from another.22 rifle that was stored in the upper part of the gun cabinet.¹ The boys then took turns loading the antique rifle in the living room and firing it out a window at the circuit breaker on a nearby telephone pole, each time removing the spent shell with a pair of pliers. After they reloaded the rifle for the final time, Danny was holding it in his lap with his finger on the trigger when Gary, Jr. slipped from the arm of his chair and struck him, causing the rifle to discharge. The bullet struck Patrick in the neck, injuring him.

Mr. and Mrs. Brooks testified that Gary, Jr. had been instructed not to touch any firearm without an adult present. They also stated that to their knowledge he had never before handled a firearm or ammunition without an adult present and had never disturbed Mr. Brooks's gun cabinet. Gary, Jr. also testified that he had never done so.

The law governing this case is well established:

It is well settled in this state that parents are not liable in damages for the torts of their minor children merely because of the parent-child relationship. When liability exists it is based on a principal-agent or a master-servant relationship where the negligence of the child is imputed to the parent, or it is based on the negligence of the parent in some factual situation such as allowing the child to have unsupervised control of a dangerous instrumentality. Where the child is not pursuing the parent's business or acting on the parent's behalf at the time the incident occurred, the parent cannot be held liable on a theory of agency. In cases of this sort the question is whether the facts of the case impose upon the parent a duty to anticipate injury to another through the child's use of the instrumentality. Recovery has been permitted where there was some parental negligence in furnishing or permitting a child access to an instrumentality with which the child likely would injure a third party.

(Citations and punctuation omitted.) Jacobs v. Tyson, 200 Ga.App. 123-124, 407 S.E.2d 62 (1991). A clear distinction is made between the parent actually furnishing or providing the dangerous instrumentality to the child and "those cases in which the parent did not furnish the dangerous instrumentality but through negligence allowed access thereto to the child." (Punctuation and emphasis omitted.) Jackson v. Wimbley, 218 Ga.App. 698(1), 463 S.E.2d 48 (1995). The standard in the latter case

is whether the parent knew of the child's proclivity or propensity for the specific dangerous activity. If such knowledge cannot be shown on the part of the parent, then liability cannot attach to her, as a parent is not an insurer that the child will not harm another.

(Citations and punctuation omitted.) Id. See also Saenz v. Andrus, 195 Ga.App. 431, 432-433(2), 393 S.E.2d 724 (1990).

The law is different with respect to an "inherently dangerous" instrumentality such as a loaded firearm. In Jacobs, supra, we held that a loaded firearm which a child discovered in an unlocked dresser drawer amounted to an inherently dangerous instrumentality, basing this conclusion upon the potential for accidental discharge without...