Stanley v. Joslin

• Decision Date: 30 December 1987
• Citation: 757 S.W.2d 328
• Parties: Bill W. STANLEY, Patricia Stanley, Natural Parents and Next of Kin of Jason Wayne Stanley, Deceased, Plaintiffs-Appellants, v. Kenneth R. JOSLIN, Kenneth Forrest Joslin, and Ida Joslin, Defendants-Appellees, and Karl S. Joslin, a Minor, Joyce Joslin Redden, A.F. Joslin, and Grace Baptist Church Defendants. 757 S.W.2d 328
• Court: Tennessee Court of Appeals

Page 328

757 S.W.2d 328

Bill W. STANLEY, Patricia Stanley, Natural Parents and Next of Kin of Jason Wayne Stanley, Deceased Plaintiffs-Appellants, v. Kenneth R. JOSLIN, Kenneth Forrest Joslin, and Ida Joslin Defendants-Appellees and Karl S. Joslin, a Minor, Joyce Joslin Redden, A.F. Joslin and Grace Baptist Church Defendants.

757 S.W.2d 328

Court of Appeals of Tennessee, Middle Section, at Nashville.

Dec. 30, 1987.

Application for Permission to Appeal

Denied by Supreme

Court

Aug. 22, 1988.

John E. Rodgers, Sr., Butler, Lackey, Rodgers & Snedeker, Nashville, for plaintiffs-appellants.

Hugh C. Gracey, Jr., Alan M. Sowell, Gracey, Ruth, Howard, Tate & Sowell, Nashville, for defendants-appellees.

OPINION

LEWIS, Judge.

Plaintiffs filed their complaint against seven defendants ¹ and alleged that the defendants "each individually and collectively, negligently and wrongfully exercised their care, custody, control and responsibility over the premises, items, and those in their care and control therein in a negligent and wrongful manner knowingly, willfully and wantonly allowed to exist and caused conditions which directly and proximately caused the injury and death of Jason W. Stanley."

The trial court granted defendants', Kenneth R. Joslin, Kenneth Forrest Joslin, and Ida B. Joslin, motion for summary judgment after finding that plaintiffs failed to prove an essential element of the case, i.e., that the defendants "had the care, custody, control and responsibility of and for the minor, Karl."

The pertinent facts are as follows:

Defendant, Ida Joslin, resides at 1500 Old Hickory Boulevard in Davidson County, Tennessee. Her foster son, defendant Kenneth Russell Joslin, and his son, defendant Kenneth Forrest Joslin, live with Ida Joslin.

Located on the lot at 1500 Old Hickory Boulevard is a house trailer in which Kenneth Russell Joslin's former wife, Joyce Joslin Redden, and their son, Karl Joslin, reside.

Karl Joslin, according to his grandmother, defendant Ida Joslin, "stayed up at my house a lot."

Plaintiffs' decedent, Jason Wayne Stanley, "was the only friend that Karl had and they were very, very close, just like brothers."

On January 29, 1985, Karl Joslin was fourteen years of age and Jason Wayne Stanley was thirteen years of age.

Both Karl and Jason had spent many nights together at Ida Joslin's home. On January 29, 1985, Karl and Jason were spending the night at Ida Joslin's home. They had spent the night of January 28th and had been at Mrs. Joslin's all day on the 29th.

Following supper, Jason had gone to the kitchen and asked Mrs. Joslin if he could have another sandwich. She gave him a sandwich and Jason returned to the den where he had left Karl.

When Jason returned to the den, Karl "showed Jason a gun" which Karl had taken from a gun rack in the den. Karl "put two empty and a live shell in the rifle." He had taken both the empty shells and the live shell from "a little box that was located on the gun rack."

According to Karl, he "barely picked up the rifle. I had my hand on the lever, the hammer was cocked. As I picked up the gun, it went off." Jason was sitting on the floor approximately eight to ten feet from Karl, leaning against a foot stool. Jason was struck by the live round in the left shoulder with the round passing through his chest and exiting through his right shoulder. He was pronounced dead upon arrival at the hospital.

The gun rack contained four rifles. One 30-30 rifle and two 22-caliber rifles belonged to defendant Kenneth Forrest Joslin and a 22-caliber rifle belonged to his father, Kenneth Russell Joslin.

The record shows there was ammunition located in the gun rack for the 30-30 rifle. The record is not clear whether there was any 22-caliber ammunition in the gun rack.

At the time this unfortunate incident occurred, Kenneth Russell Joslin was at work at Tenneco Oil Company. Kenneth Forrest Joslin had returned home from work at about 6:00 p.m. and was there when the rifle was discharged.

Karl Joslin had been forbidden by his grandmother, the defendant Ida Joslin, to ever touch the rifles and, so far as the record shows, this was the first and only time he had removed a rifle from the gun rack.

The trial judge, in granting the motion for summary judgment, relied on Moman v. Walden, 719 S.W.2d 531, 533 (Tenn.App.1986), in which this Court adopted the language of Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), as follows:

"[S]ummary judgment shall be entered against a party who failed to make a showing sufficient to establish the existence of an essential element to that party's case and on which the party will bear the burden of proof at trial. If the non-moving party fails to establish the existence of an essential element, there can be no genuine issue as to any material fact since a complete failure of proof concerning an essential element of the non-moving party's case necessarily renders all other facts immaterial."

The trial court then stated: "Plaintiffs alleged but have no proof that these moving defendants had the care, custody, control and responsibility of and for the minor, Karl. They therefore failed to prove an essential element of their case."

The trial court correctly stated the rule. However, it incorrectly applied the rule. Whether defendants had the "care, custody, control and responsibility of and for the minor, Karl" is not an essential element of their case.

Whether the defendants are liable to the plaintiffs or not is not predicated upon whether they had "care, custody, control and responsibility" for Karl. "[I]n the absence of a statute, the law is well settled that a parent is not liable for the torts of his minor child as a general rule." Highsaw v. Creech, 17 Tenn.App. 573, 581, 69 S.W.2d 249, 254 (1933). This rule would also apply to a grandparent or to a sibling.

Therefore, we are not confronted with whether the half-brother, father, or grandmother is liable based upon their relationship with Karl but with whether the defendants or either of them by their conduct was guilty of negligence and, if so, was their negligence the proximate cause of the death of Jason Wayne Stanley.

We have been cited to no Tennessee case, nor has our research revealed one that has directly faced the situation we have here, i.e., the duty of care of one who owns or possesses a dangerous instrumentality and leaves it where minors may have access to that dangerous instrumentality or the duty of care of one who has control of the premises where a dangerous instrumentality is left where minors may frequent the premises and have access to the dangerous instrumentality.

Many jurisdictions have considered this question, ² and are divided. Some have held that no liability arises from the fact that a dangerous instrumentality is left where a minor may have access to it.

In Lacker v. Ewald, 8 Ohio N.P. 204, 11 Ohio Dec. 337 (1901), the court held that the mere fact that a father carelessly and negligently left his gun exposed did not render the father liable for the killing of a dog by his infant son.

Defendants were held not to be liable in Lopez v. Chewiwie, 51 N.M. 421, 186 P.2d 512 (1947), merely by reason of leaving a loaded firearm in their home with their thirteen-year-old son. The son had taken the rifle and shot and killed plaintiffs' intestate. The court reasoned that loaded firearms were kept in a great many homes in the state and that the general policy of the state relative to firearms was found in the constitutional provision that the people have the right to bear arms for their security and defense. The court further reasoned that absent knowledge on the part of the parents that their child of thirteen was indiscreet or reckless in handling firearms, the mere keeping of a loaded gun on the premises and leaving the boy there alone did not render the parents liable for torts committed by the child.

Other jurisdictions have held that where a person leaves a dangerous instrumentality where it is accessible to children, that person may be guilty of negligence and liable for injuries caused by the dangerous instrumentality if their negligence is the proximate cause of the injury.

The court in Mazzilli v. Selger, 23 N.J.Super. 496, 93 A.2d 216 (1952), aff'd 13 N.J. 296, 99 A.2d 417 (1953), held that the mother's negligence was a jury question where her nine-year-old child obtained a shot gun belonging to his step-brother from the top of a closet where it had been placed by the mother and the room was shared by the nine-year-old and the step-brother and the nine-year-old obtained shells for the shot gun from the step-brother's dresser drawer in the same room. The father was held not to be liable where it was shown that the mother and father were separated at the time of the incident and the father had no control of the premises.

In Kuhns v. Brugger, 390 Pa. 331, 135 A.2d 395 (1957), a twelve-year-old plaintiff sought damages for personal injuries sustained when he was shot with a 22-caliber pistol that his twelve-year-old cousin had taken from an unlocked dresser drawer in the bedroom of their grandfather's summer cottage where they were both visiting. The court stated:

The possession of this loaded Colt pistol did not constitute Bach an insurer against liability for injuries arising from its use nor render him liable without fault; it did, however, impose upon him a very serious and grave responsibility. Its possession placed upon him the duty of exercising not simply ordinary, but extraordinary care so that no harm might be visited upon others. We are not called upon to determine whether the possession of other instrumentalities or objects, such as knives, medicines, poisonous substances, etc., would impose the same degree of care under similar circumstances; we are simply to determine the degree of care imposed upon the possessor of a loaded pistol, a weapon possessing lethal qualities, under the...