Packer v. Imboden

37 Pa. D. & C.3d 13, 1984 Pa. Dist. & Cnty. Dec. LEXIS 89
CourtPennsylvania Court of Common Pleas, Northampton County
DecidedJune 11, 1984
Docketno. 1982-C-8429
StatusPublished

This text of 37 Pa. D. & C.3d 13 (Packer v. Imboden) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Northampton County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Packer v. Imboden, 37 Pa. D. & C.3d 13, 1984 Pa. Dist. & Cnty. Dec. LEXIS 89 (Pa. Super. Ct. 1984).

Opinion

FREEDBERG, J.,

This matter is before the court for disposition of preliminary objections filed by additional defendants Philip Packer and Lena Packer to complaints joining them as additional defendants filed by original defendants, Stanley D. Imboden, II and Michael Calvani, Sr. This litigation arises from an incident on July 28, 1981, when the minor plaintiff Jereld Packer was hit by a vehicle operated by Stanley D. Imboden, II as he was crossing South Third Street in Easton. Plaintiff also sued Michael Calvani, Sr. alleging that he failed to properly supervise the minor who had been entrusted to him. The complaint alleges various physical injuries and damage to the youth’s nerves because of the averred negligence.

Both Imboden and Calvani filed complaints joining Philip Packer and Lena Packer, parents of Jereld Packer, as additional defendants. The joinder complaints’ allegations against the parents fall into three categories: (1) The parents failed to warn and in[15]*15struct the minor as to the proper manner to cross a street; (2) The parents failed to properly attire the minor in clothing that would make him likely to be seen by operators of vehicles at night; and (3) The parents failed to obtain proper medical treatment to alleviate their son’s emotional- injuries. In response thereto, the additional defendants have filed preliminary objections in the nature of a demurrer and a motion to strike.

DEMURRER

In Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979), the applicable standards for ruling upon preliminary.objections in the nature of a demurrer were set forth as follows:

“It is axiomatic in the law of pleading that preliminary objections in the nature of a demurrer admit as true all well and clearly pleaded material, factual averments and all inferences fairly deducible therefrom. Yania v. Bigan, 397 Pa. 316, 155 A.2d 343 (1959); Byers v. Ward, 369 Pa. 416, 84 A.2d 307 (1951). Conclusions of law and unjustified inferences are not admitted by the pleading. Lerman v. Rudolph, 413 Pa. 555, 198 A.2d 532 (1964). Starting from this point of reference the complaint must be examined to determine whether it sets forth a cause of action which, if proved, would entitle the party to the relief sought. If such is the case, the demurrer may not be sustained. On the other hand, where the complaint fails to set forth a cause of action, a preliminary objection in the nature of a demurrer is properly sustained.”

With regard to the theory that the parents failed to properly supervise the child by instructing him as to how to cross a street, we believe that the demurrer must be sustained. In Latorre v. Stoll, 46 North[16]*16ampton Co. Rpt. 86, 35 D.&C. 3d 430 (1983), this court recently had occasion to discuss the law with regard to a parent’s liability, for breach of a duty to properly supervise a child as follows:

“He points to the recent decision in Miller v. Leljedal, 71 Pa. Commw. 372, 455 A.2d 256 (1983), which held “that negligent supervision of a minor by a parent is not incognizable as a cause of action as a matter of law.” However, a careful reading of the Leljedal case shows that it does not support plaintiffs’ position in resisting the grant of summary judgment. Relying on Reardon v. Wilbur, 441 Pa. 551, 272 A.2d 888 (1971), the court pointed out that a critical factor in imposing liability on a parent for negligent supervision is the existence of facts which establish that the parent knew or had reason to know that the child was engaging in dangerous conduct. Thus, in Leljedal the parent was aware of her son’s propensity to play on or near a highway, to cross it repeatedly, and she was also aware of a snow bank near the driveway of her residence which would obstruct a motorist’s view of her child. The entry of summary judgment was reversed. In Reardon, however, the tortfeasor failed to allege that the parent had knowingly permitted his child to cross the street at the point at which he was struck. The granting of a demurrer was affirmed. In the instant case, there is no evidentiary support whatsoever to establish that the mother knew or had reason to know either that her son had a propensity.for riding as a passenger on a bicycle operated by another, or that he was doing so on the particular occasion when he was injured. If we were to implicate the parent in a factual situation where there was no showing of knowledge, such as in the instant case, then virtually every time that a child is injured the parent could be held responsible on the theory that [17]*17the injury might not have occurred had the parent only warned of the particular danger. To so hold would impose upon the parents an obligation to warn the child of the infinite .number of dangerous situations into which a young child might wander.”

In Reardon, supra, a nine-year-old pedestrian was hit by defendant’s car. Defendant joined the child’s father' alleging that he failed to properly supervise her. The Supreme Court upheld the lower court’s granting of a demurrer noting that the mere presence of a young child- on the street unattended does not establish parental negligence in the absence of an averment that the parent “knowingly permitted her to cross the street at a place of danger.”

Nowhere in the pleading is there an assertion that the parents knew or had reason to know that their child had a propensity for dashing out into traffic or that they knew he would be doing so on this particular occasion. Nor is there an allegation that they knew or had reason to know that he would be crossing at a place of danger. Thus, under Reardon and Leljedal we believe that the averments are insufficient to withstand the demurrer.

The second category of allegations advanced in support of the. joinder of the parents is that they did not attire the minor with light colored or light reflective, rain resistant clothing even though they “knew or should have known that the minor plaintiff would most likely be a pedestrian in an area containing motor vehicular traffic at night.” We reject the contention that these allegations áre sufficient to establish negligence on the part of the parents, for as in Reardon, supra, there is no allegation that' the parents either knew or should have known that their son was incapable of appreciating and recognizing the danger of running across a main highway be[18]*18tween intersections or that he would do so under circumstances where he would not be visible to oncoming motorists.

The final category of averments against the parents' is that they allegedly failed to provide reasonable medical attention to the child in the form of counseling and psychological or psychiatric treatment when they knew or should have known that he needed such care, thereby aggravating any psychiatric or psychological condition caused by the accident. We believe that these allegations, unlike the others, are sufficient to withstand the demurrer. A tortfeasor whose negligence is the legal cause of injury to a plaintiff is also liable for additional injury caused by unskillful treatment. Lebesco v. South Eastern Transportation Authority, 251 Pa. Super.

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Related

Gibson v. Gibson
479 P.2d 648 (California Supreme Court, 1971)
Miller v. LELJEDAL
455 A.2d 256 (Commonwealth Court of Pennsylvania, 1983)
George H. Althof, Inc. v. Spartan Inns of America, Inc.
441 A.2d 1236 (Superior Court of Pennsylvania, 1982)
Lebesco v. Southeastern Pennsylvania Transportation Authority
380 A.2d 848 (Superior Court of Pennsylvania, 1977)
Yania v. Bigan
155 A.2d 343 (Supreme Court of Pennsylvania, 1959)
Falco v. PADOS
282 A.2d 351 (Supreme Court of Pennsylvania, 1971)
Byers v. Ward
84 A.2d 307 (Supreme Court of Pennsylvania, 1951)
Goller v. White
122 N.W.2d 193 (Wisconsin Supreme Court, 1963)
LERAMAN v. Rudolph
198 A.2d 532 (Supreme Court of Pennsylvania, 1964)
Lasprogata v. Qualls
397 A.2d 803 (Superior Court of Pennsylvania, 1979)
Reardon v. Wilbur
272 A.2d 888 (Supreme Court of Pennsylvania, 1971)
Sinn v. Burd
404 A.2d 672 (Supreme Court of Pennsylvania, 1979)

Cite This Page — Counsel Stack

Bluebook (online)
37 Pa. D. & C.3d 13, 1984 Pa. Dist. & Cnty. Dec. LEXIS 89, Counsel Stack Legal Research, https://law.counselstack.com/opinion/packer-v-imboden-pactcomplnortha-1984.