eNotes: Liability – May 2021
April 30, 2021
SIGNIFICANT CASE SUMMARIES
FEDERAL CASE SUMMARY
Darrup v. Wal-Mart Stores East, L.P.
United States District Court for the Eastern District of Pennsylvania
Decided: February 18, 2021
In Federal District Court, a motion to transfer venue to another district will be granted where there are no contacts with the current forum.
Plaintiff Darrup moved to Arizona but, at the time she filed the underlying lawsuit, she lived in Northumberland County, Pennsylvania. Plaintiff alleged that in August 2018, she slipped and fell in a puddle while entering the Wal-Mart Store in Northumberland County. Plaintiff initially brought suit in Philadelphia County, and Wal-Mart removed the action to Federal Court in the Eastern District of Pennsylvania. Thereafter, Wal-Mart filed a Motion seeking to transfer the case to the Middle District of Pennsylvania. The Motion was granted and the case ordered transferred to the Middle District.
The controlling legal standard provides that a District Court may transfer a civil action to another District where the case may have been brought. While these transfer Motions are not to be liberally granted, courts are to consider all relevant factors to determine whether the litigation would more conveniently proceed and the interest of all litigants would better be served by transfer to a different forum.
In this case, Judge Wolson began his discussion by noting that the Plaintiff could have filed this case in the Middle District of Pennsylvania because a substantial part of the events giving rise to the litigation occurred in Northumberland County which is within the Middle District. Judge Wolson then moved on to the private and public interest factors, resolving both sets in favor of transfer. Specifically, he found that the accident occurred in the Middle District and, therefore, the majority of the events giving rise to the litigation arose within the Middle District, as well as the likely fact that many, if not all, witnesses would reside within the Middle District.
While Plaintiff attempted to argue that Wal-Mart “preferred” the Eastern District by filing the Notice of Removal there, this argument was dismissed since Wal-Mart was required to file the Notice of Removal within the Eastern District as that District contained the County in which the State civil litigation was filed (Philadelphia). Finally, the Judge found that the public interest factors weighed in favor of transfer since the case would be easier tried with the relevant personnel in the Middle District and that the Middle District had a greater interest in resolving the dispute since the events occurred in the District. In sum, Judge Wolson ultimately found that the case should be transferred to the Middle District and so ordered it. As an aside, the Opinion is well, if not humorously, written and is worth a read. It can be found at https://casetext.com/case/darrup-v-wal-mart-stores-e-lp. The decision recognizes that a defendant’s choice to remove a state action to the federal system does not mean that the parties are “locked” into the removal district if that district bears no relationship to the underlying suit.
Questions about this case can be addressed to Ryan C. Blazure at (570) 825-3867 or firstname.lastname@example.org.
PA CASE SUMMARIES
Gussom v. Teagle
Pennsylvania Supreme Court
No. 74 EAP 2020
Decided: March 25, 2021
Pennsylvania Supreme Court affirms dismissal of action when the Plaintiff failed to prove diligent attempts to serve original process and there was no evidence that Defendant had actual notice of the suit.
Plaintiff Gussom and Defendant Teagle were involved in a car accident on July 25, 2016. On April 26, 2018, Gussom filed a Complaint against Teagle, within the 2 year statute of limitations for negligence actions, but never properly served Teagle who had moved from Philadelphia to Virginia. An Affidavit of non-service was filed on May 9, 2018 confirming the attempt of service on May 4, 2018. On August 22, 2018, approximately one month after the expiration of the statute of limitations, Gussom filed a Praecipe to reinstate the Complaint. Teagle then filed Preliminary Objections asserting that Gussom improperly served the Complaint and claimed that after the initial attempt failed, Gussom “utterly failed to make any semblance of good-faith efforts to serve the Complaint.” Gussom filed no response to the preliminary objections, but once again filed a Praecipe to reinstate the Complaint.
The Court sustained Teagle’s Preliminary Objections and dismissed the Complaint with prejudice. Gussom then filed a Motion with the Court to reconsider, asserting that her counsel “inadvertently” failed to respond to the Preliminary Objections. She further asserted that she had made “good faith” attempts at service by attempting to serve the Complaint via certified mail in August, which went unclaimed, and by reinstating the Complaint in September based on a reasonable belief that Teagle had returned to Philadelphia. The Trial Court denied the Motion to reconsider. Gussom then appealed to the Superior Court.
The Superior Court affirmed the Trial Court’s decision. After confirming that it was the Plaintiff’s burden to establish good faith efforts to serve original process, the Superior Court agreed that Gussom had failed to allege or prove any evidence of a good faith investigation to locate or serve Teagle and the Trial Court had not abused its discretion by sustaining the Preliminary Objection for lack of service.
The Supreme Court affirmed. The Court held that Lamp and the cases that followed require a plaintiff to make a good faith effort to diligently and timely serve process on a defendant and to prove that she did so. As long as credible evidence is presented that attempts at service were made, the plaintiff has fulfilled the requirement to prove good faith. Failing to do so, regardless of whether that failure was intentional, unintentional or otherwise, means that she has not satisfied the burden of proof. However, if the plaintiff is able to establish that through those diligent attempts at service the defendant did receive timely actual notice of the action, and the failure to serve the process properly was not done to “stall the judicial machinery” or otherwise prejudice the defendant, only then could she avoid the dismissal of her action. The Supreme Court agreed that the record showed that Gussom failed to prove that she acted diligently in attempts to make good faith service of the Complaint, and that there was no record evidence that Teagle had received timely notice of the suit. Thus, the dismissal of her action was within the sound discretion of the Trial Court and affirmed.
Questions about this case can be directed to Rebecca Sember-Izsak at (412) 926-1446 or email@example.com.
Sullivan v. Werner Co.
Pennsylvania Superior Court
2021 Pa. Super. 66, 2021 Pa. Super. LEXIS 210
Decided: April 12, 2021
Addressing Pennsylvania products liability law, the Superior Court rules that trial courts should continue to bar evidence regarding industry standards from products liability trials and may bar a jury from considering Plaintiff’s own negligence even as it relates to causation.
This case presents some of the first appellate guidance on the question of the admissibility of evidence of compliance with industry standards since the Pennsylvania Supreme Court issued its seminal 2013 decision in Tincher v. Omega Flex. The Sullivan Plaintiffs brought strict liability, design defect, and failure to warn claims against Defendants Werner and Lowe’s. Sullivan had suffered permanent injuries to his back when he fell through a six-foot tall steel rolling scaffold manufactured by Werner and sold by Lowes. Before trial, the Court barred Defendants from presenting any evidence that the design of the scaffolding was similar to many other designs in the industry. During the trial, the Court also barred Defendants from arguing in their closing statement that Sullivan’s own negligence in assembling and using the scaffold was the sole cause of the accident, on the basis that, under Pennsylvania law, contributory negligence is inadmissible in strict liability actions unless it amounts to assumption of risk, misuse of a product or highly reckless conduct. A jury determined that a design defect in the scaffold caused the accident and awarded Sullivan $2.5 million in damages.
Defendants raised a number of issues on appeal, including that the Trial Court erred in precluding industry standards evidence, and that they should have been allowed to argue that Sullivan’s negligence was the sole cause of the accident. In addressing industry standards, the Court noted that such evidence has long been precluded in product liability cases in Pennsylvania, citing Lewis v. Coffing (1982) and Guadio v. Ford (2009). However both Lewis and Guadio relied on the distinct divide between strict liability and negligence claims created by the Pennsylvania Supreme Court in 1978 in Azzarello v. Black Bros. and overruled more recently in Tincher. In addressing the effect of Tincher, the Superior Court noted that it previously addressed the issue in dicta in past cases, and no lower Pennsylvania Court has provided a definitive ruling on the ongoing vitality of the evidentiary rule found in Lewis/Guadio. The Superior Court affirmed the decision to uphold the same rule, but left the door open for a likely appeal, stating “we agree . . . that our Supreme Court may allow industry and governmental standards in a manner suggested by the Restatement (Third) in the future, until it does, Tincher neither explicitly nor implicitly overrules the exclusion of industry standards in a products liability case.”
The Court next addressed whether it was an error to instruct the jury that it could not consider whether Sullivan was negligent in determining defectiveness or causation. The Court noted that evidence of a plaintiff’s negligence is generally inadmissible, with an exception if it can be shown that the accident was solely the result of the user’s conduct and not related in any way with the alleged defect in the product. Here, the Superior Court noted that the alleged negligence related to Sullivan’s actions in setting up the product itself, and thus could not be considered by the jury.
The Superior Court affirmed the jury’s verdict in favor of the Plaintiffs, holding that the long standing prohibition of industry standards evidence in products cases still applies post-Tincher. The Superior Court further held that a defendant cannot argue that a plaintiff’s ordinary negligence was the sole cause of an accident unless it is completely unrelated to the product.
Timmonds v. AGCO Corp.
Pennsylvania Superior Court
No. 2916 MDA 2019, 2021 Pa. Super. Unpub. LEXIS 961
Decided: April 12, 2021
In a non-precedential opinion, the Superior Court affirms a defense verdict, provides an extensive discussion of current Pennsylvania product liability law following Tincher, and addresses how evidence of the employer’s negligence may be relevant to causation in cases involving negligence and product liability claims.
This appeal arises from a jury verdict in Philadelphia County, in favor of all Defendants, AGCO C, M.M. Weaver, Sporting Valley Turf Farms, Hummer Sports Surfaces, and Hummer Turfgrass Systems. Plaintiff Timmonds, had been injured at work when he was run over by a tractor manufactured by AGCO. Plaintiff was working for his employer, George E. Ley Co., and performing irrigation work at a golf course. When his tractor would not start, Timmonds positioned himself in front of the tractor to hotwire/jumpstart it, which entailed touching an uncovered wire directly to the tractor’s battery. Upon doing so, tractor immediately started and ran over Timmonds’ foot. Plaintiff brought claims of negligence and products liability against AGCO and Weaver, and negligence against the Turf Defendants. Prior to trial, Ley was dismissed from the action by stipulation after it became clear that any claim against it was barred by the Workers’ Compensation Act. However, during the trial, and over Plaintiff’s objections, the jury heard evidence that Ley had removed a guard on the battery intended to prevent hotwiring/jumpstarting the tractor. During trial, the judge entered a directed verdict on Plaintiff’s negligence claim against ACGO because Timmonds’ expert focused his testimony on product liability and “failed to set forth how AGCO, an agricultural tractor manufacturer, failed to conform to a certain standard of conduct . . . .” The jury then returned a verdict in favor of all Defendants.
On appeal, Timmonds raised issues regarding the directed verdict, the jury instructions given on the product liability claims, and the Court allowing evidence to be heard regarding Leys’ negligence as the cause of his injuries. In response, the Superior Court dismissed an argument made by AGCO that following the PA Supreme Court’s seminal 2013 decision in Tincher v. Omega Flex, a plaintiff cannot pursue both claims of negligence design and products liability. Next, the Court found that both Timmonds’ issues regarding the directed verdict on negligence, and the form of jury instructions given on the risk-benefit standard for products cases were waived respectively for failure to fully brief the issue, and to preserve the issue during trial with a proper objection. Finally, the Court addressed the Trial Court’s decision to allow evidence of Ley’s negligence. The Court rejected Timmonds’ argument that such evidence was barred by the Workers’ Compensation Act, and stated that it was relevant and admissible to the Defendants’ defense that none of their actions were the cause of Timmonds’ injury.
The Superior Court affirmed the jury’s verdict in favor of all the Defendants, holding that Plaintiffs had failed to set forth the requisite elements of a common law negligence claim against ACGO, and failed to show any error in the Trial Court’s decision to allow testimony on the employer’s negligence.
Uzho v. Top Gun Constr., Inc.
Pennsylvania Superior Court
No. 638 EDA 2020, 2021 Pa. Super. Unpub. LEXIS 898
Decided: April 7, 2021
Superior Court finds that the general contractor of a construction project is immune from tort liability for work-related injuries sustained by employees of a sub-subcontractor.
Plaintiffs Manuel and Luiz Uzho, father and son, appealed from the Trial Court’s entry of summary judgment in favor of Defendant Top Gun Construction, wherein the Trial Court found that Top Gun met all the criteria required to be considered a statutory employer as a matter of law. Top Gun was the general contractor for a project in Philadelphia, which subcontracted with Friel Plastering & Stucco to erect scaffolding and perform stucco work. Friel erected the scaffolding and subsequently contracted with Morning Plastering and Stucco to perform the stucco work. Manuel and Luiz Uzho were employed as manual laborers with Morning and were working on the scaffolding, erected by Friel, when the scaffolding crashed against the wall, causing Manuel to fall five stories and sustain injuries which left him partially paralyzed.
Manuel sought and obtained workers’ compensation benefits from Morning. He also filed a civil Complaint against Top Gun, Morning, and Friel alleging negligence and vicarious liability. Luiz also brought his own claim for negligent infliction of emotional distress. In the Amended Complaint, Plaintiffs alleged Top Gun was the general contractor for the project. Top Gun admitted to this in their Answer. Top Gun filed a Motion for summary judgement arguing they were immune from tort liability under Section 302(b) of the Workers’ Compensation Act by virtue of their status as the general contractor. The Trial Court granted Top Gun’s Motion and on appeal, the issue was whether Top Gun met all of the criteria required to be considered a statutory employer as a matter of law.
The Court noted that Section 302(b) of the Workers’ Compensation Act affords general contractors immunity from liability in tort regarding work-related injuries for which they bear secondary liability under the Act. The Court further noted that the Complaint avers that Top Gun was the general contractor, which Top Gun admitted in the Answer. Despite the pleadings being dispositive as to Top Gun’s status as the general contractor, the Court nonetheless addressed the five element test for qualifying as a statutory employer established in McDonald v. Levinson Steel Co., 153 A. 424 (Pa. 1930). The Court indicated: (1) Top Gun was an employer under contract with the owner (University Realty) because University Realty was identified as the property owner in the subcontracts; (2) although Top Gun did not inspect the scaffolding after it was assembled by Friel, the premises were under the control of Top Gun because they had a trailer and a project manager on-site; (3) a subcontract was made between Top Gun and Friel and between Friel and Morning; (4) stucco application was one aspect of Top Gun’s regular business as a general contractor; and (5) Manuel and Luiz were employees of the sub-subcontractor. Thus, Top Gun was found to be the Plaintiff’s statutory employer.
Questions about this case can be directed to Doug Keil at (412) 926-1428 or firstname.lastname@example.org.
Bruno v. Sands Bethworks Gaming, LLC
Pennsylvania Superior Court
No. 1231 EDA 2020
Decided: April 5, 2021
Absent constructive notice of hazardous condition, summary judgment is proper for Defendant.
Plaintiff slipped and fell in a restroom stall on Defendant’s premises. During discovery, Plaintiff was unable to identify what the alleged wet spot was, how it originated or length of time that it existed. Defendant produced a statement of a restroom attendant who was in the restroom at the time who said that she had inspected the stalls five minutes before the Plaintiff fell and “everything was good.” Defendant filed for summary judgment arguing lack of notice, actual or constructive, of the alleged hazardous condition. The Trial Court granted summary judgment in favor of the Defendant ruling that Plaintiff failed to allege actual notice of the condition and failed to produce evidence which, if accepted by a jury, would establish constructive notice of the condition.
On appeal, Plaintiff argued that because her testimony established the existence of the hazardous condition on the floor and the restroom attendant claimed that the hazard did not exist minutes before the accident, there was a clear question of material fact regarding notice. The Superior Court noted that what constitutes constructive notice depends on the circumstances of each case, but the most important factor to be considered is the lapse of time between the origination of the hazard and the accident. Plaintiff testified that someone was leaving the restroom as she entered it and as she entered the stall, she saw debris and a couple of wet spots. The Court agreed with the Trial Court that Plaintiff could not establish constructive notice of the hazard because Plaintiff was unable to explain how the wets spots arrived on the ground or how long they were in the stall before she fell. Since the restroom attendant’s statement did not even mention the “wet spots,” and the attendant had inspected five minutes before the fall, there was no evidence to establish how long the hazard may have been on the floor.
The Superior Court affirmed the summary judgment in favor of Defendant because Plaintiff could not establish constructive notice of the hazard.
Questions about this case can be directed to James F. Swartz, III at (610) 332-7028 or email@example.com.
Hangey v. Husqvarna Prof’l Prods.
Pennsylvania Superior Court
No. 3298 EDA 2017, 2021 Pa. Super. 37
Decided: March 8, 2021
Superior Court addresses the quantity of contacts with the forum necessary for proper venue analysis.
The Hangeys purchased a Husqvarna riding lawnmower from Defendant Trumbauer’s Lawn and Recreation. The blades continued to spin, despite Mr. Hangey falling off the mower, and he was maimed by the mower. Five defendants were named including several Husqvarna entities and Trumbauer’s Lawn and Recreation. The Hangeys brought this case in Philadelphia County, and all Defendants filed Preliminary Objections on the bases of improper venue, and/or lack of personal jurisdiction. The Trial Court permitted the parties to conduct discovery relevant to the issues of personal jurisdiction and venue. It was discovered that in 2016, Defendant Husqvarna Professional Products (HPP), a Delaware corporation with a principal place of business in Charlotte, North Carolina, conducted just over $75,000 in sales in Philadelphia County, out of their $1.4 billion total sales.
The Trial Court held that this 0.005% of HPP’s 2016 revenue, which did not include “big box” retailers product distributions such as Home Depot, Lowe’s, or Sears, satisfied the quality prong of the venue analysis of HPP’s contacts, but failed the quantity prong. HPP’s contacts were ruled “de minimis,” and “not general and habitual.” The Hangeys appealed and a panel of the Superior Court reversed the Trial Court’s Order. The Superior Court then agreed to rehear the issue en banc upon Petition from HPP. The Superior Court sought to determine whether or not they should adopt or overrule prior precedent regarding the quantity prong of the venue analysis.
The Superior Court en banc held that merely looking at the percentage of a company’s overall business in a single county is not meaningful and determinative of the quantity prong. It was an error of the Trial Court to near-exclusively consider percentage of business of HPP, being a multi-billion-dollar corporation, to address the quantity prong. HPP’s sales come from an authorized dealer, which received product deliveries for sale from HPP. This, in combination with the $75,000 plus in sales, is “sufficiently continuous so as to be considered habitual.” The percentage of sales is just one factor to be considered for the quantity prong, and the Superior Court clarified that such evidence must all be viewed within the context of the specific business at issue in each case. Based on the totality of circumstances, the Superior Court held quantity sufficient, and remanded the case.
Questions about this case can be directed to Logan Nagle at (717) 255-7234 or firstname.lastname@example.org.
MD CASE SUMMARY
Nationwide Prop. & Cas. Ins. Co. v. Selective Way Ins. Co.
Maryland Court of Appeals
September Term, 2020, No. 1
Decided: April 1, 2021
A plaintiff is not entitled to prejudgment interest, as a matter of right, on the damages in the form of defense costs resulting from a liability insurer’s breach of its duty to defend.
Highpointe Business Trust, the owner of an apartment complex known as Highpointe Apartments, retained a general contractor, Questar, to construct said apartments. Questar retained more than twenty-five subcontractors. Water infiltration occurred and the owner filed suit against Questar. Questar then filed third-party claims against all of the subcontractors seeking indemnification. While the underlying suit was pending, Questar, through its insurer, Nationwide, tendered its defense to each of the subcontractors and their insurers. Nationwide filed a declaratory judgment action against the subcontractors and their insurers to determine the extent of insurance coverage for Questar under the various policies. While the declaratory judgment action was pending, Nationwide and Questar settled the underlying suit with Highpointe. Then settlements were reached with a number of the subcontractors and their insurers. The non-settling insurer, Selective Way, maintained that it was not obligated to defend or indemnify Questar because there was insufficient evidence that its insured contractors’ work caused the alleged damages, that it was unclear when such work was completed, and there were separate allegations of negligence against Questar.
The Circuit Court filed an “Order and Declaratory Judgment” establishing, among other things, that Selective Way breached its duty to defend Questar in the construction defect lawsuit and was liable to Nationwide in the total amount of $1,647,659.00, which included prejudgment interest. The Court of Special Appeals reversed the award of prejudgment interest because it was not expressly and separately stated in the jury’s verdict, running afoul of Md. Rule 2-604(a) and as articulated in Fraidin v. Weitzen, 93 Md. App. 168, 218-20 (1992), cert. denied, 329 Md. 109 (1993).
The Court of Appeals affirmed the judgment of the Court of Special Appeals. It held that a plaintiff is not entitled to prejudgment interest, as a matter of right, on the damages in the form of defense costs resulting from a liability insurer’s breach of its duty to defend. Such a claim is unliquidated, not fixed by agreement, and not ascertainable at the time of breach. An award of prejudgment interest on amounts paid for defense costs falls within the discretion of the finder of fact.
Questions about this case can be directed to Salvatore Cardile at (410) 653-0460 or email@example.com.
NJ CASE SUMMARY
Hassan v. Williams
New Jersey Superior Court, Appellate Division
Decided: April 13, 2021
Superior Court finds that statements made in trucking company’s internal investigation regarding their own driver’s fault should not have been excluded by the Trial Court.
Defendant Williams, was an employee of ABF Freight System as a truck driver. While operating the ABF truck, Williams rear-ended Plaintiff’s tractor-trailer. Defendants argued that Plaintiff was at fault for the accident by moving from the entrance lane onto the highway at too slow a speed, preventing Williams from being able to avoid rear-ending the Plaintiff’s truck as Williams had placed his truck on cruise control. The jury found both drivers at fault for the accident, but assigned a higher percentage share of fault to Plaintiff.
On appeal, Plaintiff argued that the trial court erred in excluding statements by ABF officials that Williams could have prevented the accident, was driving recklessly at the time of the accident, and was in violation of the company’s safety protocols, all of which led to ABF’s decision to terminate Williams.
The Appellate Court found that statements made by ABF’s officials were admissible. The Court stated that the trial court erred in precluding the statements from evidence. The Appellate Court rejected the Trial Court’s determination that the statements constituted inadmissible “ultimate issue” evidence, as ABF officials never opined as to how the case should be decided. Nor did ABF offer any legal conclusion that Williams’ actions were negligent. The Court noted that the fact that the accident was “preventable” did not automatically make Williams negligent. The Court also held that the statements were admissible hearsay under the party opponent exception, as the statements were made by ABF officials on behalf of the company.
Questions about this case can be directed to Michael Bishop at (908) 574-0510 or firstname.lastname@example.org.
DC CASE SUMMARY
Lexington Ins. Co. v. Paddock Swimming Pool Co.
United States District Court for the District of Columbia
2021 U.S. Dist. LEXIS 63259
Decided: April 1, 2021
The Court found Plaintiff’s contractual claims were barred by a waiver of subrogation clause and negligence claims were barred by the anti-subrogation rule.
Paddock Swimming Pool was hired to renovated a rooftop pool at a D.C. hotel. The contract included a scope of work clause, detailing the work to the pool, an insurance clause, requiring Paddock to maintain property insurance, and a waiver of subrogation clause, barring subrogation “to the extent covered by property insurance.” During construction on the pool, a drain was left uncapped, allowing water to enter the interior of the hotel during a rainstorm and cause damage. The hotel filed a claim pursuant to its first-party insurance policy for property damage, which was subsequently paid. Plaintiffs, a group of insurance companies proceeding as subrogees of corporations involved in the operation of the hotel, subsequently filed a complaint for breach of contract and negligence against Paddock.
Paddock filed a Motion for summary judgment, arguing that the suit is barred by the waiver of subrogation clause in the contract, and that the suit was barred by the anti-subrogation rule, as Paddock itself was an additional insured under the insurance contract. Plaintiffs responded with the argument that Paddock breached its obligations under the contract by failing to cap the drain, and that the subrogation waiver does not apply to the situation, as the damage done was to the interior of the hotel which was not covered by the scope of work clause in the contract. They argue that the waiver of subrogation clause only waived subrogation to the extent of the damage to the property which is subject to the work under the contract.
The U. S. District Court for the District of Colombia granted Paddock’s Motion for summary judgment. The Court found that the plain meaning of the contract barred Plaintiffs’ breach of contract claims due to the waiver of subrogation clause, as it determined that the waiver of subrogation contained no language to limit the scope, and the contract showed an intention to shift the risk of loss to the insurer. The Court further found that the negligence claims were barred due to the anti-subrogation rule, as it found that Paddock was an additional insured under the contract by looking to the realities of the relationship among the insurer and the insured entities, rather than the contractual formalities.
Questions about this case can be directed to Nicholas Schaufelberger at (202) 945-9502 or email@example.com.
VA CASE SUMMARY
Shoemaker v. Funkhouser
Virginia Supreme Court
Decided: March 25, 2021
Virginia Supreme Court holds landowners have a duty to prevent third parties from engaging in activities they know or should know will cause harm to others while on their property.
Shawn Nicely, while visiting his grandparents, Richard and Anna Funkhouser, accidentally shot and killed Gina Shoemaker, who was visiting her mother. The Funkhousers had given Nicely permission to shoot targets in the direction of the home Shoemaker was visiting, and knew the home Shoemaker was visiting was on the other side of trees. One of the bullets penetrated the wall of the home, killing Shoemaker. Shoemaker’s administrator filed a wrongful death action against the Funkhousers alleging they were negligent by allowing their grandson to shoot in the direction of Shoemaker.
The Complaint specifically alleged that the Funkhousers granted Nicely permission to shoot targets with a rifle in the direction of Shoemaker’s mother’s home from a firing position within sight of the Funkhouser home. The Complaint also alleged that the Funkhousers knew or should have known that firing a rifle in the direction of the residence would result in bullets striking the residence and anyone located therein. The Funkhousers filed a demurrer arguing they owed no duty to Shoemaker. The Trial Court granted the demurrer and Shoemaker appealed.
The Supreme Court recognized that a landowner has a duty in tort to exercise reasonable care to control the conduct of a third party, who has been granted permission by the landowner to use the land, to prevent the third party from creating an unreasonable risk of bodily harm to others. The Supreme Court conditioned this duty on the landowner’s presence, knowledge or reason to know that they may control the third person, and the necessity and opportunity to exercise that control. Here, taking the allegations in the complaint to be true, the Court held the Funkhousers owed a duty to their neighbors not to grant permission for someone to shoot targets on their property in the direction of another home located within sight of their house when they knew or should know that the bullets are likely to strike that house. The case was reversed and remanded for further proceedings.
Questions about this case can be directed to Nicholas Phillips at (571) 464-0436 or firstname.lastname@example.org.