Horneman v. Hills Department Store

8 Pa. D. & C.4th 361, 1990 Pa. Dist. & Cnty. Dec. LEXIS 159
CourtPennsylvania Court of Common Pleas, Westmoreland County
DecidedJuly 9, 1990
Docketno. 8245 of 1989
StatusPublished

This text of 8 Pa. D. & C.4th 361 (Horneman v. Hills Department Store) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Westmoreland County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Horneman v. Hills Department Store, 8 Pa. D. & C.4th 361, 1990 Pa. Dist. & Cnty. Dec. LEXIS 159 (Pa. Super. Ct. 1990).

Opinion

SCHERER, J.,

This matter comes before the court upon preliminary objections, filed by plaintiffs and additional defendant, to defendant’s new matter, new matter under 2252(d), and complaint to join an additional defendant.

While shopping with his mother, the minor plaintiff, Matthew Horneman, allegedly pulled a clothing rack down on himself resulting in various injuries. Plaintiffs, the minor and his father, have brought suit against the defendant department store.

Defendant store has joined the father, John Hor-neman, as an additional defendant pursuant to Pa.R.C.P. 2252(d). Defendant store alleges that the plaintiff father is liable to the minor plaintiff or, in the alternative, is liable to the defendant store, for failure to train and instruct the minor, and for negligent entrustment of the minor child to the mother.

Plaintiff father raises an objection to defendant’s new matter under 2252(d) in the nature of a motion to strike paragraphs 20 to 26 or in the alternative, a demurrer for failure to state a cause of action. Defendant store asserts that plaintiff father was negligent in entrusting the minor plaintiff to the custody of the child’s mother, Darcy Horneman. [363]*363Plaintiff father argues that he was not present when the alleged injuries occurred, and that a cause of action does not exist for a father’s negligent entrustment of the child to the care and supervision of the mother.

A demurrer can only be sustained where the complaint is clearly insufficient to establish a right to relief. County of Allegheny v. Commonwealth, 507 Pa. 360, 490 A.2d 402 (1985):

“Since the sustaining of a demurrer results in a denial of the pleader’s claim or a dismissal of his suit, a preliminary objection in the nature of the demurrer should be sustained only in cases that clearly and without a doubt fail to state a claim for which relief may be granted. If the facts as pleaded state a claim for which relief may be granted under any theory of law then there is sufficient doubt to require the preliminary objection in the nature of a demurrer to be rejected.” Id. (citations omitted)

Parents have a duty to exercise reasonable care to protect their children and to keep them from danger. Miller v. Leljedal, 71 Pa. Commw. 572, 455 A.2d 256 (1983). Defendant’s position is that this level of care, owed by the father to his three-year-old son, necessarily entailed the father’s assurance that the child would not be subjected to inadequate supervision.

In Reardon v. Wilbur, 441 Pa. 551, 272 A.2d 888 (1971), a case similar to the present matter, a minor child was injured as a result of negligent operation of a motor vehicle. The defendant filed an amended answer and new matter joining the minor’s father as an additional defendant and alleged that the father failed to supervise the child and failed to provide for the child’s safety. The father filed preliminary objections on the grounds that the facts stated were not sufficient to state a cause of action against him.

[364]*364The Reardon court held that the defendant’s new matter failed to set forth sufficient facts to establish the negligence of the father. Specifically, the Pennsylvania Supreme Court stated that the defendant did not allege that the father knowingly permitted the child to cross the street at a place of danger and did not allege that the child suffered from any incapacity or was other than a normal child.

Defendant department store argues that, unlike the defendant in Reardon, it has alleged the knowledge of the father in subjecting the child to the risk of inadequate supervision in breach of the father’s duty of care and protection. Defendant asserts:

“(22) On or about June 16, 1988, John Horneman entrusted the minor plaintiff, Matthew J. Horne-man, to the custody of his wife and the mother of Matthew J. Horneman, Darcy Horneman.

“(23) If the minor plaintiff was damaged as alleged in the plaintiff’s complaint, said damages and injuries are the direct and proximate result of the negligence of John Horneman in entrusting the minor, Matthew J. Horneman, to the care, control, and custody of Darcy Horneman when he knew, or in the exercise of reasonable attention and care should have known that Darcy Horneman would not pay proper attention to the whereabouts and conduct of Matthew J. Horneman while, at the Hills Store on June 16, 1988.” Defendant’s new matter under 2252(d).

Defendant store’s allegations do not state a cause of action against the father for “negligent entrustment.” The court recognizes that parents have a duty to exercise reasonable care to protect their children and to keep them from danger. However, from the facts averred in defendant store’s new matter, the court cannot conclude that the parent’s duty to protect his child and to exercise reasonable [365]*365care requires an absent parent to know that the child, who is shopping with the other parent, is in danger.

Defendant store attempts to make an absent parent liable for the other parent’s alleged breach of duty. Defendant store’s new matter fails to allege that the father knowingly permitted the child to go to a place of danger. Defendant store also does not aver that the mother suffered from some incapacity or was other than a normal person and would not exercise reasonable care as a parent. The facts alleged are not sufficient to state a cause of action against the plaintiff father.

Additionally, in Burton v. Althoff, 64 D.&C. 2d 366 (1973), the court stated that the rule of imputed negligence in parent-child situations will apply only where there is a master-servant relationship or a joint venture which, by law, makes the parent vicariously liable for the acts of the other parent or a child of the parent. In the present case, defendant’s answer does not assert a master-servant relationship or a joint venture between the parents.

Plaintiff father also argues that the failure to teach and to instruct a child is not a cause of action as stated in defendant’s new matter under 2252(d). Plaintiff’s objection is in the nature of a motion to strike or in the alternative, a demurrer for failure to state a cause of action.

Preliminary objections, in the nature of a motion to strike or, in the alternative, a demurrer for failure to state a cause of action, are also raised in regard to paragraphs 7(a) and (b) of the defendant’s complaint to join additional defendant Darcy Horneman.

Defendant store claims that the parents were negligent for failing to teach their child not to reach up and pull things down from above him. Plaintiff argues that because a minor under the age of seven [366]*366cannot be held negligent it is therefore impossible to train and instruct a child of seven years or younger. Defendant store responds that a reasonably prudent parent must take precautions and make an effort to instruct the child as to proper behavior in a department store.

■ In defendant’s new matter under 2252(d), defendant store alleges the following facts as to the plaintiff father’s liability:

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Related

Miller v. LELJEDAL
455 A.2d 256 (Commonwealth Court of Pennsylvania, 1983)
Kuhns v. Brugger
135 A.2d 395 (Supreme Court of Pennsylvania, 1957)
County of Allegheny v. Commonwealth
490 A.2d 402 (Supreme Court of Pennsylvania, 1985)
Reardon v. Wilbur
272 A.2d 888 (Supreme Court of Pennsylvania, 1971)
Styer v. Reading
61 A.2d 382 (Supreme Court of Pennsylvania, 1948)
Debnam v. Commonwealth, Pennsylvania Board of Probation & Parole
455 A.2d 297 (Commonwealth Court of Pennsylvania, 1983)

Cite This Page — Counsel Stack

Bluebook (online)
8 Pa. D. & C.4th 361, 1990 Pa. Dist. & Cnty. Dec. LEXIS 159, Counsel Stack Legal Research, https://law.counselstack.com/opinion/horneman-v-hills-department-store-pactcomplwestmo-1990.