Spivey v. Sheeler

• Decision Date: 23 August 1974
• Citation: 514 S.W.2d 667
• Parties: Gregory Allen SPIVEY, an infant By and Through Hobart Spivey, his next friend, et al., Appellants, v. R. T. SHEELER and Carolyn Sue Sheeler, Appellees.
• Court: United States State Supreme Court — District of Kentucky

Page 667

514 S.W.2d 667

Gregory Allen SPIVEY, an infant By and Through Hobart

Spivey, his next friend, et al., Appellants, v. R. T. SHEELER and Carolyn Sue Sheeler, Appellees.

Court of Appeals of Kentucky.

Aug. 23, 1974.

Rehearing Denied Nov. 15, 1974.

Amos H. Eblen, Eblen, Howard & Milner, Lexington, for appellants.

W. R. Patterson, Jr., Landrum & Patterson, Lexington, for appellees.

JAMES S. CHENAULT, Special Commissioner.

The infant appellant, Gregory Allen Spivey, suffered an accidental gunshot wound at the hands of Robert Sheeler, son of the appellees, R. T. Sheeler and Carolyn Sue Sheeler. This action was brought by the Spiveys individually and by Hobart Spivey as next friend of Gregory against the Sheelers for damages resulting from the injury.

The facts developed on the trial are largely undisputed and, so far as pertinent to the issue here presented, are as follows:

On a Friday afternoon following school Gregory, then 12 years of age, and a playmate, Dan Patrick, 11 years of age, met with Robert Sheeler, also 11 years of age, and another playmate, Ricky Creech, 14 years of age, and engaged in a discussion of playing kickball. The boys then entered the Sheeler home for the purpose of obtaining a ball. Neither of Robert's parents was at home. The boys spent some time in the home, perhaps long enough to play a mechanical game of soccer, but soon started for the outdoors again. On their way out they stopped to look at a glass-front gun case containing several guns. The gun case was locked and it was too tall for any of the boys to reach the top while standing on the floor. Robert climbed up on something and obtained the key from the top of the case, then unlocked the case, opened it and took out various guns and passed them around among his friends. Apparently all of the boys examined one or more guns and snapped the triggers and passed them around to the other boys. Robert got out a .25-caliber automatic pistol, waved it around, made some remark, and snapped the trigger. The gun discharged with the bullet piercing the body of Gregory.

At the conclusion of the appellants' case the trial court directed a verdict in favor of the appellees, the Sheelers, for the reason that there had been no showing of 'any negligence on the part of the appellees which would entitle' the appellants to relief.

The question here before us is whether an issue of fact has been presented upon which reasonable men might differ, concerning the negligence or absence of same in parents maintaining within their home a highly dangerous instrumentality, a loaded pistol, in such a manner and in such a position that it was accessible to an 11-year-old son. If such actions on the part of the parents were negligence, it would be because of the reasonably foreseeable likelihood of a boy of tender years' being attracted to the use of said weapon and the likely consequence of serious harm following such untrained and inexperienced use. By granting a directed verdict the trial court determined that reasonable men could not differ on the question and that as a matter of law such conduct on the part of the parents was not negligence.

Appellants argue that four factors are present in this case to establish the failure of appellees to use the care of a reasonably prudent person under the circumstances. These are:

(1) minors were involved;

(2) both parents were absent from the premises at the time, being thus unable to exercise control over their infant son's conduct when they knew or should have known he had access to the home and would be with playmates;

(3) a loaded pistol, a highly dangerous instrumentality, was kept in the house, in a gun case having a glass front so that the guns therein were visible, and their son knew the key to the gun case was on top of the case; and

(4) boys of the age involved would be attracted by guns, and the small size of a .25-caliber automatic would make it appear more as a toy than a dangerous instrumentality.

Appellees counter with the argument that the injury was not foreseeable because none of the boys had previously opened the gun case nor been present when, if ever, their son had opened same that the gun case was in fact locked and the key was out of sight.

Basically, the resolution of this matter must turn on the standard of conduct expected or required of parents of minor children in having loaded deadly weapons in their household. The Restatement of Torts, 2nd, § 308, prescribes a general standard of conduct frequently cited by the courts, as follows:

'It is negligence to permit a third person to use a thing or engage in an activity which is under the control of the actor, if the actor knows or should know that such person intends or is likely to use the thing or to conduct himself in the activity in such a manner as to create an unreasonable risk of harm to others.'

In the Comment b under this section, at p. 100, is the following:

'The rule . . . has its most frequent application where the third person is a member of a class which is notoriously likely to misuse the thing which the actor permits him to use. Thus, it is negligent to place loaded firearms or poisons within reach of young children or feebleminded adults.'

In § 316, defining in more specific detail the duty of a parent, the Restatement continues:

'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.

'Comment: a. While the father as head of the family group is no longer responsible for the actions of all members of his household or even for those of his minor child, he is responsible for their conduct insofar as he has the ability to control it. This duty is not peculiar to a father. It extends to the mother also insofar as her position as mother gives her an ability to control her child' (pp. 123--124).

An application of § 308, supra, was made by the Supreme Court of Kansas in Wroth v. McKinney, 190 Kan. 127, 373 P.2d 216 (1962), a case involving a loaded gun and an infant. Wroth, a plumber, the father of a deceased infant, brought suit for the wrongful death of his son against a householder who kept a loaded gun in his home. The householder had engaged the plumber to make a service call, and he knew the plumber frequently was accompanied on such calls by his infant child. While the plumber was working in the householder's home the infant found the gun and fatally shot himself. In discussing the degree of care of the householder, the court stated:

'One knowingly dealing with such an instrumentality which may cause harm to others unless due care is exercised must answer for the results which follow from a negligent failure to exercise such care, and a higher degree of care is required in dealing with dangerous instrumentalities than in the ordinary affairs of life or business which involve little or no risk. As the hazard from the use or threatened use of dangerous instrumentalities increases, the responsibility of the person employing them becomes...