Vance by and Through Vance v. Thomas

1986 OK CIV APP 3, 716 P.2d 710, 1986 Okla. Civ. App. LEXIS 39
CourtCourt of Civil Appeals of Oklahoma
DecidedMarch 4, 1986
Docket63399
StatusPublished
Cited by13 cases

This text of 1986 OK CIV APP 3 (Vance by and Through Vance v. Thomas) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Vance by and Through Vance v. Thomas, 1986 OK CIV APP 3, 716 P.2d 710, 1986 Okla. Civ. App. LEXIS 39 (Okla. Ct. App. 1986).

Opinions

MEANS, Presiding Judge.

This appeal was placed on the Accelerated Docket for early disposition. Oral argument was heard on February 20, 1986.

Plaintiff appeals from the order of the trial court sustaining Defendants’ motion for summary judgment and refusing Plaintiffs request to amend. Having reviewed the record and applicable law, we reverse and remand.

Plaintiff Christopher Vance brought this action by and through his mother for injuries which he sustained when he was shot in the eye with a BB gun on October 13, 1980. Earlier that day, defendant Phyllis Rae Thomas purchased a BB gun for her two sons, ten-year-old Bobby and eight-year-old Brian. Neither boy received any training with the gun or any instructions from either parent concerning safety. When she returned from purchasing the gun, Mrs. Thomas let Bobby take it to his room. She stated that she told him to put the gun away, but she did not make any other determination as to where he had placed it. She knew that he had taken it from the box and was playing with it because he had asked her what the safety button was for.

That same evening, Mrs. Thomas brought Mrs. Vance and her three young boys to the Thomas home. Christopher Vance was six years old at the time. His brother Mark was two and Eric was one. All five boys went into Bobby and Brian’s room to play. A few moments later, the parents heard screams from the room where the boys were playing and discovered that Christopher had been shot in the eye with the BB gun. Although there is some dispute as to whether Bobby was shaking the gun when it discharged or whether the gun fell off the bed and discharged, it is undisputed that the BB gun had not been put away, was loaded, and was easily accessible to the children.

Plaintiff brought this action against Bobby Thomas and Bobby’s parents.1 Defendants, Mr. and Mrs. Thomas, moved for summary judgment which was sustained. Parents asserted that there was no substantial controversy as to any material fact and that, under the law in Oklahoma, they were not responsible for the negligence of their child. Plaintiff objected to the motion for summary judgment and raises those same objections on appeal. Plaintiff also complains that the court erred in refusing to allow him to amend his pleadings.

We find the sustainment of the summary judgment erroneous as a matter of law. Plaintiff’s response to the motion for summary judgment and evidentiary materials present several legal theories under which Parents’ negligence should be decided by a jury.

As pointed out by Parents, the mere fact of paternity does not make a parent liable for the torts of his minor child. Stumpf v. Montgomery, 101 Okla. 257, 226 P. 65 (1924). However, a parent may be liable for an act of his child if the parent’s conduct was such as to render the parent a principal tortfeasor, or, in other words, if the parent’s own negligence was a proximate cause of the injury. See, e.g., Dickens v. Barnham, 69 Colo. 349, 194 P. 356 (1920). Thus, a parent may be liable if the parent’s negligence made the injury possible. 59 Am.Jur.2d Parent and Child § 130 (1971). Most often parental liability is sought to be imposed where the parent entrusts his child with an instrumentality which, because of the youth or inexperience of the child, may become a source of danger to others. See, e.g., Carmona v. Padilla, 4 A.D.2d 181, 163 N.Y.S.2d 741 (1957).

In the instant case, Parents correctly point out that there is no factual dispute as to their behavior. Mrs. Thomas stated that she told Bobby to put the gun away, but [712]*712did not check to see if he had obeyed. She knew her sons had been playing with the gun earlier, but she did not check the room before the young Vance children arrived. She further knew that five young boys, aged one to ten, would be playing in the room. Plaintiff contends that these acts and omissions on the part of Mr. and Mrs. Thomas were questions for the jury in deciding whether their alleged negligence was the proximate cause of Christopher’s injury. This court agrees, based on several theories.

One such theory presented by Plaintiff is the theory of negligent entrustment. As noted earlier, a parent may be liable if he or she is negligent in entrusting a dangerous weapon or instrumentality to a child who, because of his age or inexperience, might use the instrumentality in such a way as to endanger the person of another. Honea v. Bradford, 39 N.C.App. 652, 251 S.E.2d 720 (1979). A parent, like anyone else, may be negligent in entrusting to a child a dangerous instrument, or a thing which the child has a propensity to misuse, or in leaving such a thing where it is easily accessible to the child. W. Prosser, Handbook of the Law of Torts § 123 (4th ed. 1971).

This theory is espoused in Connor v. Houtman, 350 P.2d 311 (Okla.1960). Although Connor involved a bow and arrow in the hands of a three-year-old, in dicta, the court commented:

[Generally speaking, an air rifle, where possession or use is not prohibited by statute or ordinance, is not considered a dangerous instrumentality per se in the hands of a child and ... a parent is not liable for injuries inflicted by the child in using the rifle in absence of proof that the parent knew that child, at time of injury or prior thereto, was or had wrongfully or improperly used same.

Id. at 314.

Both Plaintiff and Parents claim that Connor supports their positions. Contrary to Parents’ contention, Connor does not say that parents can never be liable. Instead, the Connor court found that a bow and arrow was not dangerous per se and further that there was no evidence at trial that the parents had any knowledge that their small child was improperly using the bow and arrow. Connor is similar to the instant case in that there is no evidence that the parents had actual knowledge that the child had ever improperly or wrongfully used the BB gun.

There is some judicial disagreement as to whether a BB gun is a dangerous instrumentality. See Annot., 68 A.L.R.2d 782, 795 (1959). While admittedly a BB gun is not classified as a firearm, it is “capable of hurtling a projectile with sufficient force to penetrate an eye and cause severe injury.” Bell v. Tilton, 234 Kan. 461, 470-471, 674 P.2d 468, 476 (1983). See also Phillips v. D’Amico, 21 So.2d 748 (La.Ct.App.1945). Even if a BB gun is not inherently dangerous, the parent may still be liable if he knows that the child’s age or immaturity makes it dangerous. 59 Am.Jur.2d Parent and Child § 132 (1971).

In the instant case, the age and immaturity of the children increased the potential danger. There is no evidence that Bobby understood or had been taught the danger of playing with the BB gun. There is also no evidence that Bobby had been given any instructions except to put the gun away until his father came home.

Plaintiff also pleaded the theory of a duty to an invitee. While our courts have occasionally stated that a social guest is an invitee, Foster v. Harding, 426 P.2d 355 (Okla.1967), explains that a guest is more correctly labeled as a licensee, entitled to a duty of ordinary care. Those who invite children on their premises must take certain precautions dictated by ordinary care to protect them from injury.

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Vance by and Through Vance v. Thomas
1986 OK CIV APP 3 (Court of Civil Appeals of Oklahoma, 1986)

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Bluebook (online)
1986 OK CIV APP 3, 716 P.2d 710, 1986 Okla. Civ. App. LEXIS 39, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vance-by-and-through-vance-v-thomas-oklacivapp-1986.