Elledge ex rel. Pendergrass v. Mathis

686 So. 2d 317, 1996 Ala. Civ. App. LEXIS 850, 1996 WL 675436
CourtCourt of Civil Appeals of Alabama
DecidedNovember 22, 1996
Docket2950689
StatusPublished
Cited by1 cases

This text of 686 So. 2d 317 (Elledge ex rel. Pendergrass v. Mathis) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Elledge ex rel. Pendergrass v. Mathis, 686 So. 2d 317, 1996 Ala. Civ. App. LEXIS 850, 1996 WL 675436 (Ala. Ct. App. 1996).

Opinions

RICHARD L. HOLMES, Retired Appellate Judge.

This is a personal injury case.

Cathy Pendergrass and her minor son, Tracy Elledge, appeal from a summary judgment in favor of John Mathis and Annette Mathis.

Our review of the record reveals the following pertinent facts: On August 6, 1993, Tracy Elledge, Jeremy Wilkes, and two other boys were voluntarily engaged in a game of “war.” The boys were apparently exchanging shots at one another, when one of the BB’s from Jeremy’s air rifle struck Tracy in the eye.1 The accident occurred while the boys were at the Mathises’ residence. An[318]*318nette Mathis is Jeremy’s mother. John Mathis was Jeremy’s step-father at the time the accident occurred. The Mathises are now divorced.

Thereafter, Pendergrass, individually, and as next friend and mother of Tracy, filed a complaint against John Mathis, individually, and Annette Mathis. The complaint sought damages under the theories of negligent supervision and negligent entrustment. We note that the complaint did name other defendants. However, those defendants are not germane to this appeal. The Mathises filed individual answers, wherein they each alleged contributory negligence and assumption of the risk.

On January 2, 1996, the Mathises filed a motion for a summary judgment, along with their documentation in support thereof. Pendergrass and Tracy responded with a brief in opposition, along with their documentation in support thereof.

On January 12, 1996, the trial court granted the Mathises’ summary judgment motion. Pendergrass and Tracy appeal.

Rule 56(c), Ala. R. Civ. P., provides that a summary judgment is appropriate in situations where no genuine issue of a material fact exists and the movant is entitled to a judgment as a matter of law. It is well settled that the moving party has the burden of establishing that no genuine issue of a material fact exists and that all reasonable uncertainties regarding the existence of a genuine issue of a material fact must be resolved against the moving party. Porter v. Fisher, 636 So.2d 682 (Ala.Civ.App.1994).

Once the movant makes a prima facie case showing that no genuine issue of a material fact exists, then the burden shifts to the non-moving party to present substantial evidence regarding the existence of a genuine issue of a material fact. Porter, 636 So.2d 682.

At the outset we note that Pender-grass and Tracy failed to present an argument in regard to their claim on negligent supervision. It is well-settled law that the failure to argue a specific issue in a brief that is submitted to the appellate court is the equivalent of a waiver of that issue on appeal. Ex parte Riley, 464 So.2d 92 (Ala.1985).

Therefore, the only issue on appeal is whether Pendergrass and Tracy presented substantial evidence to support their theory of negligent entrustment.

In Brown v. Vanity Fair Mills, Inc., 291 Ala. 80, 82, 277 So.2d 893, 895-96 (1973), our supreme court stated the following:

“Negligent entrustment is defined in Restatement (Second) of Torts § 390, as follows:
“ ‘One who supplies directly ... 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 physical harm resulting to them.’
“The elements of negligent entrustment have been listed as follows:
“ ‘(1) Proof that the entrustee was incompetent, inexperienced or reckless; (2) that the entrustor “knew or had reason to know” of the entrustee’s condition of proclivities; (3) that there was an entrustment of the chattel; (4) that the entrustment created an appreciable risk of harm to the plaintiff and a relational duty on the part of the defendant; (5) that the harm to the plaintiff was “proximately” or “legally” caused by the negligence of the defendant.’ ”

In support of their contention that Jeremy was not incompetent, inexperienced, or reckless, the Mathises introduced Jeremy’s testimony. Jeremy testified that he acquired his Crossman air rifle when he was approximately twelve years old. He was sixteen years old when the accident occurred. Jeremy stated that, all of his life, his natural father had instructed him on how to operate guns and how to operate them safely. Jeremy further testified that he did not fire his air rifle at Tracy’s eye or head. Jeremy’s account of how the accident occurred is as follows:

[319]*319“Q. Going to August the 6th of 1993, tell me when was the first time that you saw Tracy Elledge on that day?
“A. He walked through my yard and across the street.
“Q. And what, if anything, did you do when you saw him walk across the yard to the street?
“A. I opened my door and shot air out of my gun out the door. I just dry fired it or whatever you want to call it.
“Q. And which direction did you shoot this air out of your gun?
“A. I shot it out the door just making a noise.
“Q. Well, did you shoot it in the direction of Tracy and his friends or your friends?
“A. No.
“Q. When is the next or — what did you do next?
“A. I shut my door and they came over there in the yard and they were like hiding beside my house, and I walked outside and one of them shot me in the back. I went back inside and I went to the other door and I opened it up and I shot air in my garage. And then they started shooting at the house and they shot the door and the walls in there. And then I put a BB in my gun and I shot it out and it hit the concrete and hit [Tracy] in the eye.”

(Emphasis added.)

The Mathises then offered Tracy’s téstimo-ny. Tracy testified that he and his friends were just having fun on the day of the accident and that they had never played “war” with air rifles before. Tracy further testified that he did not have any reason to believe . that Jeremy was actually trying to shoot him since they were just playing around. Tracy could not say whether Jeremy raised the air rifle to a position that would indicate that he was aiming. In addition, Annette Mathis testified that she was not at home on the day the accident occurred. She further testified that she had never known Jeremy to fire his air rifle at anyone before.

Pendergrass and Tracy failed to present any evidence that would indicate that Jeremy was incompetent, inexperienced, or reckless. Instead, in their brief Pendergrass and Tracy made the general proposition that “[tjaking aim and shooting at someone’s eye or head with a bb or pellet gun is definitely reckless.”

In Cooter v. State Farm Fire & Casualty Co., 344 So.2d 496, 497 (Ala.1977), our supreme court stated, “the manifestation of the incompetence of the user is an essential element to the gravamen of the negligent en-trustment action. That is to say, but for the incompetent ... misconduct in the use of the [air rifle], no liability could result to the entrustor.”

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Cite This Page — Counsel Stack

Bluebook (online)
686 So. 2d 317, 1996 Ala. Civ. App. LEXIS 850, 1996 WL 675436, Counsel Stack Legal Research, https://law.counselstack.com/opinion/elledge-ex-rel-pendergrass-v-mathis-alacivapp-1996.