Schwartz v. Elerding

270 P.3d 630, 166 Wash. App. 608
CourtCourt of Appeals of Washington
DecidedFebruary 21, 2012
DocketNo. 29207-0-III
StatusPublished
Cited by7 cases

This text of 270 P.3d 630 (Schwartz v. Elerding) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Schwartz v. Elerding, 270 P.3d 630, 166 Wash. App. 608 (Wash. Ct. App. 2012).

Opinion

Siddoway, J.

¶1 Charles and Shanna Lee Schwartz appeal the summary judgment dismissal of their claims for negligence, negligent supervision, and negligent entrustment, asserted against the parents of a 17-year-old who used a shotgun received from his parents to strike Mr. Schwartz during the course of an assault. At issue is whether, based on the evidence presented, any reasonable juror could find that the parents, Steven and Linda Elerding, acted unreasonably in failing to recognize a risk that their son would misuse the weapon. We find no error and affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 Around midnight on April 20, 2007, Joey Elerding, then 17 years old and a junior in high school, was driving his father’s truck in an unfamiliar area, trying to locate the home of a friend, when the truck became stuck in soft dirt as he attempted to turn around in the driveway of Charles and Shanna Lee Schwartz’s rural home. Mr. Schwartz noticed the lights of the truck and could see that it was not leaving, so he drove his own truck out to investigate and/or help. Upon approaching Joey,1 Mr. Schwartz could tell he had been drinking. Mr. Schwartz reached into the truck, pulled the keys out of the ignition, and told Joey he was going to call his parents to pick him up and drive him home. Although the two disagree on details of what happened next, they began to fight, with Joey attempting to get his keys back. In the course of the fight, Joey grabbed an unloaded 20-gauge shotgun from a toolbox in the bed of the truck and, holding it by its barrel, used it to strike Mr. Schwartz.

[612]*612¶3 Mr. Schwartz was badly injured by the time his wife walked out to look for him, saw what was happening, and called 911. Officers responded and arrested Joey. Both men were taken to the hospital. Mr. Schwartz suffered several facial fractures and incurred $40,000 in medical bills. He claims permanent damage to his left eye and ongoing memory loss, sleep disorders, and headaches. Joey eventually pleaded guilty to second degree assault and was sentenced to nine months’ confinement.

¶4 After the Schwartzes learned that Joey’s parents purchased the shotgun for him as a gift and allowed him to keep it in Mr. Elerding’s truck, they commenced the action below, asserting claims against the Elerdings for negligent supervision of a child, negligent furnishing of a firearm, and general negligence, and for statutory liability under RCW 4.24.190, which imposes strict liability on parents in an amount up to $5,000 for certain willful and malicious actions of minor children living at home.2 Early on, the Elerdings offered $5,000 in settlement in light of the claim for statutory liability with the caveat that the statutory claim required no proof of negligence, and they conceded none. They later moved the trial court to dismiss the Schwartzes’ remaining claims under CR 12(c) for failure to allege that their son had a dangerous proclivity known to them and which they failed to control. They moved alternatively for summary judgment dismissing the negligence claims.

¶5 In support of their motion, the Elerdings submitted evidence that Joey took and passed a firearm safety course and had his parents’ permission to keep firearms in Mr. Elerding’s truck for hunting purposes but was required not [613]*613to have the shotgun and shells in the same place; that he had a valid hunting license; that he had never improperly-used the shotgun in the past; that prior to his assault of Mr. Schwartz, his only encounter with law enforcement had been one speeding ticket received in West Richland when he was 16; that he was virtually a straight-A student with high test scores on college entrance exams; and that the only blemish on his school attendance record were days missed when he traveled to compete in a junior national swimming championship. They submitted the discipline records maintained by the school Joey attended, which reflected only the following instances of discipline:

10/1/2004: “Ms. Hedstrom gave Joey a detention for misbehavior in English 9; Joey threw paper wads. Detention One.”
5/4/2006: “Joey admitted to drinking at a party. Joey will serve his athletic code violation during the [sic] of ’06-’07 swimming season, if he swims. A second violation will result in a loss of all athletics for a calendar year and no class trips, including Close-up.”
9/27/2006: “Joey squealed tires when leaving the parking lot after school - warning, next time will lose at least 2 weeks of off-campus privileges.”

Clerk’s Papers (CP) at 131-36.

¶6 In opposition to the motion, the Schwartzes identified the following allegations and facts that they contend both state a claim and present genuine issues of fact, parenthetically identifying the supporting evidence or documents:

9. Defendants’ son, Joseph Elerding, had a dangerous proclivity. (Complaint ¶ 4.6).
10. Defendants’ son had been disciplined at school for underage drinking at a party about one year prior to the incident. (Letter from [defense counsel] to [plaintiffs’ counsel], Exhibit A).
11. Defendants’ son had been drinking alcohol the night of the incident. (Sheriff’s Report, Exhibit B).
[614]*61412. Defendants furnished their son with a firearm. (Complaint ¶ 4.10, Answer to Interrogatory No. 34, Exhibit C; see also Exhibit B).
13. Defendants allowed their son to keep the firearm with him in his car allowing him unsupervised access and control of the firearm. (Complaint ¶ 4.11, Answer to Interrogatory No. 35, Exhibit C) [and]
14. Defendants]’] son had a disciplinary school action in September 2006 that resulted in a revocation of all off-campus privileges for two weeks. (Exhibit A).

CP at 69-70. The document attached as exhibit A was a letter from defense counsel forwarding the school disciplinary records. The record did not indicate that Mr. or Mrs. Elerding had been notified or otherwise knew of any of the incidents resulting in discipline by the school. The Schwartzes offered no other evidence that either Mr. or Mrs. Elerding had known prior to April 20,2007, of the facts identified as 10, 11 and 14.

¶7 At the conclusion of the hearing on the motion, the trial court granted the motion for summary judgment. Following entry of the order dismissing the three negligence claims, the Schwartzes accepted the Elerdings’ offer to settle the claim for statutory liability for the earlier-offered $5,000. They timely appealed dismissal of their negligence claims.

ANALYSIS

¶8 The Schwartzes argue that the rationale offered by the trial court in granting summary judgment — the lack of evidence that Joey’s assault was foreseeable — addresses an issue that is not itself an element of negligence; that foreseeability, as an aspect of duty or proximate cause, is ordinarily an issue of fact; and that it should not have been analyzed identically for what they argue are three distinct theories of liability.

¶9 We review summary judgment orders de novo. Hisle v. Todd Pac. Shipyards Corp., 151 Wn.2d 853, 860, 93 [615]*615P.3d 108 (2004).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Hendrickson v. Moses Lake Sch. Dist.
428 P.3d 1197 (Washington Supreme Court, 2018)
Jon Rappaport v. Nicole Hanson
Court of Appeals of Washington, 2018
Ashley Brown v. Dept. of Social & Health Services, CPS
360 P.3d 875 (Court of Appeals of Washington, 2015)
State v. Bauer
295 P.3d 1227 (Court of Appeals of Washington, 2013)
State Of Washington, V Douglas L. Bauer
Court of Appeals of Washington, 2013

Cite This Page — Counsel Stack

Bluebook (online)
270 P.3d 630, 166 Wash. App. 608, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schwartz-v-elerding-washctapp-2012.