Tissicino v. Peterson

• Decision Date: 03 November 2005
• Docket Number: No. 2 CA-CV 2005-0060.,2 CA-CV 2005-0060.
• Citation: 121 P.3d 1286,211 Ariz. 416
• Parties: Kelly TISSICINO and Kirk Nielson, individually and as wife and husband, Plaintiffs/Appellants, v. Juanita PETERSON, a single woman, Defendant/Appellee.
• Court: Arizona Supreme Court

121 P.3d 1286

211 Ariz. 416

Kelly TISSICINO and Kirk Nielson, individually and as wife and husband, Plaintiffs/Appellants, v. Juanita PETERSON, a single woman, Defendant/Appellee.

No. 2 CA-CV 2005-0060.

Court of Appeals of Arizona, Division 2, Department A.

November 2, 2005.

Reconsideration Denied November 3, 2005.

Stompoly, Stroud, Glicksman & Erickson, P.C., By Elliot Glicksman, Tucson, for Plaintiffs/Appellants.

Hazlett Law Firm, By Carl E. Hazlett, Tucson, for Defendant/Appellee.

OPINION

ECKERSTROM, Judge.

¶ 1 In this action for the wrongful death of their teenage son, Zachary, plaintiffs/appellants Kelly Tissicino and Kirk Nielson appeal from the grant of summary judgment in favor of defendant/appellee Juanita Peterson on their claim of negligent entrustment. Genuine issues of material fact exist as to (1) whether Juanita had the right to control the gun she had provided to her adult son, Timothy, and which he used to shoot Zachary, and (2) whether Juanita knew Timothy was incompetent to use it safely. A genuine issue of material fact also exists as to whether Timothy's shooting of Zachary was a supervening cause of his death that was unforeseeable to Juanita. Accordingly, we reverse summary judgment and remand this matter to the trial court for further proceedings.

¶ 2 In reviewing the trial court's ruling, we view the facts in the light most favorable to Tissicino and Nielson, the parties against whom summary judgment was granted. See Great Am. Mtg., Inc. v. Statewide Ins. Co., 189 Ariz. 123, 124, 938 P.2d 1124, 1125 (App.1997). Juanita's husband, Don, originally had given the gun to Timothy about twenty years earlier, and Don had re-taken possession of the gun because Timothy's brother had used it in a crime. At that time, Don had stated to Timothy, "I'm going to hang onto [the gun] because you let your brother go into your room and take it." For the next twenty years, the gun remained in Don's and Juanita's possession. Juanita testified at her deposition that Don had stored the gun in a drawer and had kept it for protection and that after Don had moved to a nursing home, Juanita had placed the gun in a typewriter case in the closet in a bedroom where Timothy stored clothes and other personal property.

¶ 3 Juanita testified that Timothy had never asked for the gun; rather, she had eventually requested that Timothy take the gun because she did not like having a gun around the house. Juanita also conceded she had been aware that Timothy had abused alcohol and drank regularly at the time she had given him the gun, that she had consumed alcohol with him in the four months preceding the shooting, and that Timothy accidentally had shot himself with a gun on a previous occasion. Within one or two weeks after Juanita gave the gun to Timothy, he shot Zachary accidentally. Timothy erroneously believed the gun was unloaded and pulled the trigger while pointing the gun at Zachary. Timothy admitted at his deposition that he was intoxicated at the time.

¶ 4 After Zachary's death, Timothy pled guilty to manslaughter and was sentenced to seven years in prison. Before sentencing, Timothy underwent a battery of intelligence and proficiency tests. Those tests revealed that Timothy had a below average intelligence quotient (IQ) of seventy-four, and his reading, spelling, and math skills were at a grade school level. After testing, psychologists determined he also suffered from brain damage and a cognitive disorder.

¶ 5 Juanita wrote a letter to the sentencing judge explaining that, while pregnant with Timothy, she had been the victim of extreme domestic violence. She added that she had used alcohol during that pregnancy. She stated that Timothy had suffered head trauma resulting from a serious automobile accident in 1977 and numerous motorcycle accidents. Juanita also maintained that Timothy had suffered from learning difficulties throughout his school career and eventually had been placed into special education classes. She acknowledged in the letter to the sentencing judge that she was aware that Timothy had abused alcohol since the age of fourteen. Timothy's lawyer asserted in a sentencing memorandum that "Tim's long history of alcohol abuse and the strong possibility that he suffers from fetal alcohol syndrome. . . along with the extensively documented mental deficiencies Tim suffers from, call into question Tim's ability to reason right from wrong or to conform his conduct to the requirements of the law."

¶ 6 Tissicino and Nielson brought a wrongful death action against Juanita, but Juanita moved for summary judgment, arguing, inter alia, that she owed no duty to Tissicino, Nielson, or Zachary, because "a defendant [cannot] `negligently entrust' property to its lawful owner," and Timothy was the undisputed owner of the gun. The trial court agreed, finding that Restatement (Second) of Torts § 390 (1965), was inapplicable because "in the cases under Restatement § 390, the liable party actually owned the chattel," and there was no genuine issue of material fact as to whether Juanita owned the gun. The trial court also found that Tissicino and Nielson had presented insufficient facts to demonstrate that Juanita knew or should have known her providing the gun to Timothy posed an unreasonable risk of harm to others. "We review the propriety of summary judgment de novo." AHCCCS v. Bentley, 187 Ariz. 229, 231, 928 P.2d 653, 655 (App.1996). A motion for summary judgment should be granted when no genuine issues of material fact exist so that the movant is entitled to judgment as a matter of law. Id.

¶ 7 Tissicino and Nielson argue there was a genuine issue of material fact as to who owned the gun and whether Juanita negligently had entrusted the gun to Timothy because she knew or should have known that providing a gun to him posed an unreasonable risk of harm to others. Tissicino and Nielson claim Juanita's duty arises under Restatement (Second) § 390, which states:

One who supplies directly or through a third person a chattel for the use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for the physical harm resulting to them.

¶ 8 At the outset, we disagree that plaintiffs were required to establish Juanita owned the gun in order to maintain their claim against her for negligent entrustment pursuant to § 390. Although Arizona courts have not yet squarely addressed this issue, there are cases that suggest a defendant's ownership of a chattel is not a prerequisite to liability for negligent entrustment. See State Farm Auto. Ins. Co. v. Dressler, 153 Ariz. 527, 529-30, 738 P.2d 1134, 1136-37 (App.1987) ("[N]egligent entrustment liability is theoretically possible in a case where the defendant neither owned, maintained nor used the vehicle in question . . . ."); Lumbermens Mut. Cas. Co. v. Kosies, 124 Ariz. 136, 138, 602 P.2d 517, 519 (App.1979) ("In order to prove negligent entrustment it is necessary for the plaintiff to show . . . that the defendant owned or controlled the motor vehicle concerned . . . .") (emphasis added).

¶ 9 The plain language of § 390 does not make ownership a material element. Section 390 is "a special application of the rule stated in [Restatement (Second) of Torts] § 308 [(1965)]." Restatement § 390 cmt. b. Section 308 provides as follows:

It is negligence to permit a third person to use a thing or to 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.

(Emphasis added.) In defining control, comment a to § 308 states that

[t]he words "under the control of the actor" are used to indicate that the third person is entitled to possess or use the thing or engage in the activity only by the consent of the actor, and that the actor has reason to believe that by withholding consent he can prevent the third person from using the thing or engaging in the activity.

¶ 10 A majority of other jurisdictions have defined right to control the chattel as the essential element of a negligent entrustment claim, rather than ownership. See, e.g., Mills v. Crone, 63 Ark.App. 45, 973 S.W.2d 828, 831 (1998) ("According to the Restatement, one is not liable for negligent entrustment of a thing if he has no right to control its use."); Zedella v. Gibson, 165 Ill.2d 181, 209 Ill.Dec. 27, 650 N.E.2d 1000, 1003 (1995) (defining entrustment under the restatement "with reference to the right of control of the subject property"); Green v. Harris, 70 P.3d 866, 871 (Okla.2003) (acknowledging that, although negligent entrustment usually involves ownership, possession and control is actual requirement).

¶ 11 We conclude that a genuine issue of material fact exists as to whether Juanita had the right to control the gun. As noted, in assessing whether genuine issues of material fact exist, we view the facts and all reasonable inferences therefrom in the light most favorable to the party that opposed summary judgment. Wilson v. U.S. Elevator Corp., 193 Ariz. 251, ¶ 2, 972 P.2d 235, 236-37 (App.1998). Summary judgment is only proper if the facts produced in...