Edmunds v. Cowan

386 S.E.2d 39, 192 Ga. App. 616, 1989 Ga. App. LEXIS 1123
CourtCourt of Appeals of Georgia
DecidedJuly 11, 1989
DocketA89A0985
StatusPublished
Cited by8 cases

This text of 386 S.E.2d 39 (Edmunds v. Cowan) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Edmunds v. Cowan, 386 S.E.2d 39, 192 Ga. App. 616, 1989 Ga. App. LEXIS 1123 (Ga. Ct. App. 1989).

Opinions

Birdsong, Judge.

This is an appeal by plaintiff Derek Edmunds (Edmunds) from the grant of summary judgment to defendant, Edmund G. Cowan, Sr., (Cowan) on Edmunds’ claim against Cowan arising from the shooting of Edmunds by Edmund G. Cowan, Jr. (Jerry), another defendant. Jerry shot Edmunds, a Gwinnett County Police Sergeant, while Ed-munds was apprehending Jerry for attempting to steal a car. Jerry pleaded guilty to shooting Edmunds and was sentenced to 50 years confinement for that and other offenses arising from the incident.

Edmunds sued both Jerry and Cowan to recover his lost wages, medical expenses, and damages for pain and suffering. The allegations against Jerry are based upon his direct actions of shooting Edmunds. The allegation against Cowan is based on his “negligence in permitting [Jerry], a convicted felon, who resided in the household, to have access to a dangerous instrumentality . . . the .22 caliber revolver.”

After answering the Complaint and conducting discovery, Cowan moved for summary judgment alleging that he had no actual knowledge of his son’s dangerous propensities, he had no legal responsibility for Jerry’s acts based merely upon parenthood, the pistol was not entrusted to Jerry by Cowan, and there was an unforeseeable intervening act between Cowan’s actions and the shooting. The trial court agreed with Cowan’s contentions and granted summary judgment to him.

Some months before the shooting, Jerry had been twice convicte [617]*617of breaking and entering into a business and had also been convicted of carrying a concealed weapon, another .22 caliber pistol. When Jerry was released from prison in October 1986, he was on probation and returned to live in his parents’ home. As a convicted felon Jerry was prohibited by law from possessing a pistol. Nevertheless, Cowan purchased the .22 caliber pistol in November 1986 for his own use, and after that bought a holster and a trigger lock for the pistol for safety reasons. A trigger lock is attached to the pistol over the trigger. In place it keeps the trigger from operating, and, hence, the pistol from firing. The trigger lock can be removed only with keys that Cowan kept on his person, or, as in this instance, with great difficulty by someone using a power drill. After an initial supply of ammunition was used up shortly after the purchase, Cowan kept no ammunition for the pistol in his home. The pistol was on a shelf in a closet in Cowan’s bedroom. The closet and the bedroom were not locked.

Jerry knew about the pistol and knew where it was kept, and although Cowan did not tell or show Jerry where it was kept, Cowan admits that he was aware that Jerry knew where he kept the pistol. Also, shortly after he purchased the pistol, Cowan showed the pistol to Jerry, and according to Cowan’s deposition testimony, let Jerry handle the pistol. Although Jerry stated that he “stole” the pistol from where his father kept it, there is no evidence of record that Cowan instructed Jerry not to take or use the pistol. Indeed, Jerry never used the pistol until the day he took it, drilled off the trigger lock with his power drill, purchased ammunition for the pistol, and put the pistol under his car seat. Jerry admits that he took the pistol without permission from his father or mother: he “stole the gun.” Further, Cowan did not know his pistol was gone until after Jerry shot Edmunds with it.

On the day of the shooting Jerry and some friends spent their time drinking beer and riding around. In the process they decided to steal a car from an apartment complex. That night they went to the apartments and were stealing the car when the police arrived.

Although ordered to get out of the car and freeze, Jerry pulled his pistol and shot Edmunds. The bullet penetrated Edmunds’ chest, severely wounding him. Edmunds was out of work for over three months, incurring substantial lost wages and medical expenses.

After the grant of summary judgment, this appeal followed. Held:

1. Appellee Cowan correctly asserts that he cannot be held liable for Jerry’s tortious acts merely because he is Jerry’s father, Hulsey v. Hightower, 44 Ga. App. 455 (161 SE 664), and that he may not be found liable to Edmunds under the theory of negligent entrustment unless there was an entrustment and Cowan had actual knowledge of Jerry’s dangerous propensities. Bonney Motor Express v. Yates, 171 Ga. App. 754 (320 SE2d 844); Brown v. Sheffield, 121 Ga. App. 383 [618]*618(173 SE2d 891).

Pretermitting whether the facts here would support an entrustment and actual knowledge, the case against Cowan is based on neither parenthood nor negligent entrustment. The Complaint states a claim against Cowan based upon his negligence in allowing Jerry to have access to the pistol. Cowan had a duty to exercise ordinary care in storing the pistol. Blackwell v. Cantrell, 169 Ga. App. 795, 797 (315 SE2d 29). Moreover, this court held in Tolbert v. Tanner, 180 Ga. App. 441, 444 (349 SE2d 463), that summary judgment was improperly granted defendants who failed to conclusively refute the plaintiff’s allegations that they negligently allowed the tortfeasor access to an unloaded pistol. Accordingly, there is no support for Cowan’s position that negligent access alone will not support a claim against him.

2. As a defendant moving for summary judgment, Cowan must establish that there are no genuine issues of material fact and that he is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). He has the burden of piercing Edmunds’ pleadings by affirmatively negating at least one of the essential elements of the complaint, Corbitt v. Harris, 182 Ga. App. 81 (354 SE2d 637), and establishing that, as a matter of law, Edmunds cannot recover under any theory fairly drawn from the pleadings and evidence. Reed v. Adventist Health Systems &c., 181 Ga. App. 750, 752 (353 SE2d 523). Cowan’s arguments have been based on the contentions that access to the pistol or parenthood will not support the cause of action, that there was no negligent en-trustment, that Cowan could not foresee that Jerry would shoot Officer Edmunds, and that Cowan’s precautions as a matter of law were not negligence. Division 1, above, of course, disposes of the access alone argument, as well as the parenthood and entrustment contentions.

Considering the foreseeability issue, while one is not generally required to anticipate criminal acts, this rule does not apply if Cowan had reasonable grounds to believe that a criminal act would be committed. Nalle v. Quality Inn, 183 Ga. App. 119, 120 (358 SE2d 281). The test is not whether Cowan must have foreseen that Jerry would take the pistol and shoot Edmunds. It is sufficient that with ordinary prudence Cowan might have foreseen that Jerry would take the pistol and commit an act with generally injurious consequences. Burdine v. Linquist, 177 Ga. App. 545, 547 (340 SE2d 198); Bell v. Adams, 111 Ga. App. 819, 821 (143 SE2d 413). Because of Jerry’s two prior criminal convictions for breaking and entering and one for possession of a concealed .22 caliber pistol, it cannot be said that there was no evidence that Jerry might take the pistol and use it as he did.

Since Edmunds as the respondent to a motion for summary judgment is entitled to all reasonable inferences and all reasonable doubt from the evidence, and to have the evidence construed in his favor [619]*619McNish v.

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Edmunds v. Cowan
386 S.E.2d 39 (Court of Appeals of Georgia, 1989)

Cite This Page — Counsel Stack

Bluebook (online)
386 S.E.2d 39, 192 Ga. App. 616, 1989 Ga. App. LEXIS 1123, Counsel Stack Legal Research, https://law.counselstack.com/opinion/edmunds-v-cowan-gactapp-1989.