From the Desk of Kyle Riley: Plaintiffs often try to attach a child’s negligence to his parents by relying on broad generalizations to create a dangerous proclivity. This case looks at whether providing a minor a firearm is in and of itself negligent.
Claims Pointer: A minor merely possessing a gun does not, by itself, establish that the minor has a dangerous proclivity to support negligent supervision or negligent entrustment claims.
Schwartz v. Elerding, in the Court of Appeals of the State of Washington, Division III, 166 Wash.App. 608, 270 P3d 630 (February 21, 2012).
Seventeen year-old Joey Elerding accidentally got his father’s truck stuck in the Schwartzes’ soft dirt driveway when he was looking for a friend’s house on rural roads. When Mr. Schwartz approached Joey to investigate, he could tell Joey had been drinking. Mr. Schwartz reached into the truck, removed the keys from the ignition, and told Joey that he was contacting his parents to come pick him up. Joey fought Mr. Schwartz and grabbed an unloaded 20-guage shotgun from a toolbox in the bed of the truck, held it by its barrel, and struck Mr. Schwartz in the face causing him severe injuries. Mrs. Schwartz came outside looking for her husband, noticed he was injured, and called 911. Police responded and arrested Joey. Eventually, Joey pleaded guilty to second degree assault and was sentenced to nine months’ confinement. Once the Schwartzes learned that Joey’s parents gifted him the shotgun and allowed him to keep it in Mr. Elerding’s truck, they commenced a lawsuit against Joey’s parents (the Elerdings).
Among the Schwartzes’ allegations, was that the Elerdings negligently supervised and negligently entrusted Joey by giving him a shotgun. The Elerdings moved for summary judgment which the trial court granted. The negligence claims were dismissed and the Schwartzes appealed to the Washington Court of Appeals.
The Schwartzes renewed their argument that the Elerdings negligently supervised and negligently entrusted Joey with a shotgun. The Schwartzes alleged the Elerdings knew or should have known of the dangerous proclivity of all minors in possession of a gun. The Schwartzes argued that it was “widespread knowledge that any and all minors have a dangerous proclivity when it comes to guns” and that it was foreseeable that a minor would misuse a gun. The Court rejected this contention because it was unsupported by Joey’s unrelated and insignificant disciplinary history. Joey had never been involved in altercations prior to the assault on Mr. Schwartz and his school record contained few disciplinary violations. The Elerdings provided their 17 year-old son, who was safety-trained, apparently law-abiding, licensed, and historically responsible, a shotgun for hunting. Thus, the Schwartzes failed to present evidence that the Elerdings knew or should have had reason to know Joey would likely use the shotgun in a manner involving an unreasonable risk of physical harm.
The Court concluded that a minor merely possessing a gun does not, by itself, establish that the minor has a dangerous proclivity. Thus, the negligent supervision and negligent entrustment claims were appropriately dismissed.
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