adolph-c-lavin-and-jean-lavin-surviving-parents-of-troy-james-lavin-and ( 1998 )

ADOLPH C. LAVIN and JEAN LAVIN, )
surviving parents of TROY JAMES )
LAVIN, Deceased, and ADOLPH C. )
LAVIN, in his capacity as Administrator )
of the estate of TROY JAMES LAVIN, )
) Davidson Circuit
FILED
Plaintiffs/Appellants, ) No. 96C-1475
) September 2, 1998
VS. )
) Cecil W. Crowson
ROSS JORDON, SUSAN JORDON, ) Appeal No. Appellate Court Clerk
and SEAN JORDON, ) 01A01-9709-CV-00455
)
Defendants/Appellees. )
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
APPEAL FROM THE CIRCUIT COURT OF DAVIDSON COUNTY
AT NASHVILLE, TENNESSEE
HONORABLE BARBARA N. HAYNES, JUDGE
Charles R. Ray, #3188 Vincent E. Wehby, #2288
211 Third Avenue North 501 Union Street, Suite 500
Nashville, Tennessee 37219-8288 Nashville, Tennessee 37219-2305
ATTORNEYS FOR PLAINTIFFS/APPELLANTS
John L. Norris, #6007
HOLLINS, WAGSTER & YARBROUGH, P.C.
Suite 2210, 424 Church Street
SunTrust Center
Nashville, Tennessee 37219
ATTORNEY FOR DEFENDANTS/APPELLEES
REVERSED AND REMANDED.
HENRY F. TODD
PRESIDING JUDGE, MIDDLE SECTION
CONCURS:
BEN H. CANTRELL, JUDGE
WILLIAM B. CAIN, JUDGE
ADOLPH C. LAVIN and JEAN LAVIN, )
surviving parents of TROY JAMES )
LAVIN, Deceased, and ADOLPH C. )
LAVIN, in his capacity as Administrator )
of the estate of TROY JAMES LAVIN, )
) Davidson Circuit
Plaintiffs/Appellants, ) No. 96C-1475
)
VS. )
)
ROSS JORDON, SUSAN JORDON, ) Appeal No.
and SEAN JORDON, ) 01A01-9709-CV-00455
)
Defendants/Appellees. )
OPINION
The plaintiff, Adolph C. Lavin and wife, Jean Lavin, surviving parents of Troy James
Lavin, brought this action against Ross and Susan Jordon and their son, Sean Jordon, for the
wrongful death of Troy Lavin, who was shot and killed by Sean Jordon. The Trial Judge entered
an interlocutory partial judgment on the pleadings limiting the recovery from the parents of Sean
Jordon to $10,000.00 pursuant to T.C.A. §§ 37-10-101, 102 and 103 which read as follows:
37-10-101. Property damage by juvenile -Recovery
against parents or guardian. -Any municipal corporation,
county, town, village, school district or department of this
state, or any person, or any religious organization, whether
incorporated or unincorporated, shall be entitled to recover
damages in an action in assumpsit in an amount not to exceed
ten thousand dollars ($10,000) in a court of competent
jurisdiction from the parents or guardian of the person of any
minor under eighteen (18) years of age, living with the
parents or guardian of the person, who maliciously or
willfully causes personal injury to such person or destroys
property, real, personal or mixed, belonging to such
municipal corporation, county, township, village, school
district or department of this state or persons or religious
organizations. [Acts 1957, ch. 76, § 1; 1969, ch. 170, § 1;
1976, ch. 408, § 1; 1981, ch. 161, § 1; T.C.A., § 37-1001;
Acts 1985, ch. 439, § 1.]
37-10-102. Limitation on amount of recovery. -The
recovery shall be limited to the actual damages in an amount
not to exceed ten thousand dollars ($10,000) in addition to
taxable court costs. [Acts 1957, ch. 76, § 2; 1969, ch. 170, §
2; 1976, ch. 408, § 2; 1981, ch. 161, § 2; T.C.A., § 37-1002.]
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37-10-103. Due care and diligence as barring recovery.
(a) A parent or guardian shall be liable for the tortious
activities of a minor child that cause injuries to persons or
property where the parent or guardian knows, or should know,
of the child's tendency to commit wrongful acts which can be
expected to cause injury to persons or property and where the
parent or guardian has an opportunity to control the child but
fails to exercise reasonable means to restrain the tortious
conduct.
(b) A parent or guardian shall be presumed to know of a
child's tendency to commit wrongful acts, if the child has
previously been charged and found responsible for such
actions. [Acts 1957, ch. 76, § 3; 1981, ch. 161, § 3; T.C.A., §
37-1003; Acts 1985, ch. 439, § 2.]
The plaintiffs have appealed and presented the following issue for review:
1. Whether T.C.A. §37-10-101, et. seq., limits the plaintiff’s recovery against the
parent of a minor child to ten thousand dollars ($10,000.00) where the plaintiffs allege that a
parent failed to control his or her child when the parent knew, or should have known in the
exercise of due care, of the child’s tendency or propensity to act in such a way as would naturally
result in an injury to plaintiffs.
The appellees present the same issue in the following form:
1. Whether the Trial Court correctly ruled that Tenn. Code Ann. Secs. 37-10-101
to 37-10-103 limit any liability of Ross and Susan Jordon for their allegedly negligent failure to
supervise and/or control their minor child to ten thousand dollars ($10,000.00).
The essence of the partial judgment is that the complaint fails to state a claim for more
than $10,000.00.
The material of the allegations of the complaint are as follows:
6. On or about June 4, 1995 Defendant Sean
Jordon was observed around the home of Mrs. Francis V.
Garrison, at 4305 West Hamilton Road in Nashville,
Davidson County, Tennessee at approximately 1:00 p.m. in
the afternoon. Upon returning to her residence, Mrs. Garrison
discovered that she had been the victim of a home burglary
and after having inventoried her personal belongings
discovered among the items stolen were two (2) rifles and two
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(2) shotguns. Upon learning that the Defendant, Sean Jordon,
who had access to a key to Mrs.Garrison’s home, had been
seen on the premises, Mrs. Garrison confronted the
Defendants, Ross Jordon and Susan Jordon and advised them
that she had information that their son, Defendant Sean
Jordon, had entered her home and stolen rifles and shotguns.
Though the Defendants, Ross Jordon and Susan Jordon were
both aware at the time of the conversation that Sean Jordon
had a history of anti-social, and criminal behavior, and that he
aspired to be a “gangster,” and actively associated with a
violent gang, Sean Jordon, had burglarized Mrs. Garrison’s
home, stolen the guns, and retained the guns for further and
future anti-social criminal conduct.
7. Shortly after the burglary of Mrs. Garrison’s
residence, and after Mrs. Garrison confronted the Defendants
with her knowledge about Sean Jordon’s participation,
Defendant, Susan Jordon, overheard a telephone conversation
between her son and his friends where they admitted
burglarizing the Garrison residence and hiding the guns close
by the home of Sean Jordon. Defendant, Susan Jordon, even
after having knowledge, based upon Sean Jordon’s admission,
over the telephone, that Sean Jordon had access to weapons
that he could utilize for future anti-social and criminal
activity, took no steps to ensure that Sean Jordon would not
make use of the weapons.
- ---
8. On June 29, 1995 the Pizza Hut on Clarksville
Highway, Nashville, Davidson County, Tennessee received
a telephone order from the telephone number 876-1318
directing that a pizza should be delivered to 4213 Hallmark
Drive. Troy James Lavin agreed to deliver the pizza to this
address. Sometime prior to 1:35 p.m., on that date, Troy
James Lavin arrived at the residence of Sean Jordon at 4213
Hallmark Drive whereupon Troy James Lavin was shot
multiple times with a .22 caliber rifle by Sean Jordon
resulting in the death of Troy James Lavin. The murder
weapon utilized, which was part of the weapons stolen from
Mrs. Garrison, was retrieved by members of the Metropolitan
Davidson County Police Department at the exact spot where
Sean Jordon advised them that they would find the weapon.
- ---
The Defendant, Sean Jordon is liable to the Plaintiffs
for compensatory and punitive damages for the loss of Troy
James Lavin’s life at the hands of Sean Jordon as permitted
by T.C.A. § 20-5-113.
- ---
Defendants failed to exercise a reasonable means of
controlling, policing or restraining the violent, assaultive,
anti-social propensities of Sean Jordon in any fashion. Thus,
the Defendants, Ross Jordon and Susan Jordon, were grossly
negligent and are liable to the Plaintiffs in an amount to be
determined for both compensatory and punitive damages.
- ---
14. The senseless and wanton, wicked and
depraved nature of the Defendant’s Sean Jordon killing of
Troy James Lavin, is the culmination of a history of
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assaultive, violent, anti-social criminal conduct well
documented and known to Defendants Ross Jordon and Susan
Jordon. Prior to these events Sean Jordon was declared to be
a delinquent child for having assaulted a minor. Sean Jordon
was declared to be a delinquent child for having assaulted and
raped a school mate at Pearl-Cohn High School.
In Smith v. Salvaggio, Tenn. Civ. App. 1914, the Court said:
This action was instituted by the defendant in error,
Charles Salvaggio, by his next friend, Joe Salvaggio, against
the plaintiff in error, Dora smith, in the Circuit of Shelby
County, to recover of her damages growing out of injuries
inflicted upon him by the son of the plaintiff in error, who
was a minor of tender years.
There was a verdict in the Court below, where the case
was tried before the Court and a jury, in favor of the
defendant in error for $800, from which the plaintiff in error
appealed to this Court, after her motion for a new trial had
been overruled.
The declaration alleged that the plaintiff in error’s son
was a minor of very tender years, and that some time prior to
the injury inflected upon the defendant in error, which was
January 16, 1911, plaintiff in error purchased, or permitted to
be purchased, by or for her said son, and to remain in his
possession and control, and in the possession and control of
one Ernest Nelms, also a boy of tender years, and a playmate
of the plaintiff in error’s son, a certain .22-caliber rifle; and
that on or about the 16th day of January, 1911, and for
sometime prior thereto, with the knowledge, consent and
permission of the plaintiff in error, said boys were shooting
the said rifle in and around their homes and the home or the
defendant in error on Rayburn avenue, in the city of
Memphis, which fares in the city of Memphis, when the said
boys either negligently or accidentally, or on purpose, shot
the defendant in error in the back and side, seriously and
permanently injuring him.
That the defendant in error was upon the premises
surrounding his home at the time of the shooting, and that
said shooting was wholly without fault upon his part; that the
plaintiff in error was guilty of negligence, in, that she put, or
caused to be put, in the hands of said boys, or allowed and
permitted said rifle, a dangerous instrument, to be used by
said boys of tender years, both of whom were inexperienced
in the use of such an instrument, and lacked the proper
discretion necessary for the handling of the same, which fact
was well known to the plaintiff in error.
The plaintiff in error filed a plea of not guilty.
There is evidence tending to show that the plaintiff in
error was running a public resort on Rayburn avenue, in the
city of Memphis; that she had been married, but was divorced
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from her husband, and had one child -a son, who was about
nine years of age at the time of the injury to the defendant in
error; that this son did not stay at the home of the plaintiff in
error, but stayed at the home of Luella Williams, who lived
about a half block from the plaintiff in error. The reason for the
son staying at the home of Luella Williams was on account of
the character of house kept by the plaintiff in error. The
plaintiff in error paid Luella Williams $5 per week for keeping
her son at her home, though the proof shows the son was at the
home of the plaintiff in error daily, and sometimes several
times per day; but remained at the home of the Williams
woman at night.
There was also evidence offered by the plaintiff below
tending to show that sometime prior to his injuries, the
plaintiff in error’s son had secured, in some way, a gun -a rifle
of .22-caliber, and had been shooting said rifle around the
premises of the plaintiff in error, which was only two doors
from where the defendant in error lived, and had also been
shooting on the street in the vicinity of his home, and the
plaintiff in error’s home.
One witness testified that he had seen the boy coming
out of the plaintiff in error’s house with said rifle, and there is
other evidence in the record tending to show that he was seen
on several occasions about the plaintiff in error’s home
shooting the rifle at birds and targets.
On the 16th day of January, 1911, while the plaintiff
below was standing upon his premises, he says that the
plaintiff in error’s son and a companion was shooting the rifle
near him, and that the plaintiff in error’s son said to his
companion, “I want to kill a dago,” and took the rifle out of his
companion’s hand and fired upon the defendant in error,
shooting him through the body, the ball entering his side
passing clear through the body. There is evidence tending to
show that the defendant in error suffered great pain and mental
anguish from the wound inflicted, and was confined in the
hospital for about a month from the injury.
The plaintiff in error testified that she did not know of
her son having the gun in question; that he secured the gun
without her knowledge or consent; and did not learn of her son
having the gun until she learned of the shooting, which was
three days after it occurred.
The boy testified that he purchased the gun at a store on
Main street, paying $1.50 for it, and that he purchased it with
money that he had earned in selling newspapers on Sundays.
He says he bought the gun on his birthday, and carried it to the
home of Luella Williams, where he kept it concealed under the
bed. He says he did not shoot the defendant in error, but that
Ernest Nelms, his companion, did the shooting.
It is insisted by the first assignment of error that there
is not evidence to support the judgment.
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We are of opinion that this assignment of error is not
well taken. While the plaintiff in error testified that she did
not know that her son had the gun, and was in the habit of
shooting about her premises and on the street near the
defendant in error’s home, we think that there are facts and
circumstances in the record tending to show that she did, and
that the jury was warranted in inferring from the facts and
circumstances proven that she did know it.
We think it is the well settled law that a parent who
permits his or her child to have possession of a deadly weapon
when, on account of the child’s youth and inexperience, he is
incompetent to be intrusted with it, and the parent knows the
danger that might happen to others from the use of such
weapon, or in the exercise of reasonable care should know it,
is liable for injuries inflicted upon others by the child’s
reckless use of such weapon. In other words, the parent is
chargeable with negligence in such cases, if, from all the facts
and circumstances, he should have known of the probable
danger and injury that might result to others from permitting
the child to have the weapon in his possession. Myers v.
McDowell, 53 L. R. A., 789; Pollock Torts, page 33; Am. &
Eng. Ency. of Law, Vol. 21, 1057, 1058; Binford v. Johnson,
82 Ind., 427; Carter v. Towne, 98 Mass 567; 96 Am. Dec.,
682; Hoveron v. Noker, 50 Am. Rep., 381; Palmer v. Iverson,
117 Ill. App., 535; 29 Cyc., 1666; 22 Am. & Eng. Ann. Cas.,
1582.
The rule for such liability upon the part of the parent is
not founded upon the relation of parent, but upon the ground
of the negligence of the parent in permitting the child to have
possession of the dangerous and deadly weapon, when, from
his youth and inexperience, it might be reasonably anticipated,
that in the use of such weapon the child would inflict injury
upon others.
The question of the parent’s negligence in such cases
is always one for the jury. The question of the defendant’s
negligence in the case at bar was fairly left to the jury by the
Court in the following instruction:
“So, with reference to the particular facts of this case,
the Court charges you that if you find by a preponderance of
the evidence in this case, that the defendant’s son is a boy 8 or
9 years of age, and if you further find from a preponderance of
the evidence that said boy had a rifle and was shooting at birds
and targets about his home in the city of Memphis, and you
further find from the preponderance of the evidence that said
boy’s mother, the defendant, knew that he had said rifle and
was so using it, and if you further find from the preponderance
of the evidence that said boy was incompetent to be intrusted
with a deadly weapon, and the defendant knew the danger or
should have known it by the exercise of ordinary and
reasonable care, and if you further find from a preponderance
of the evidence that it was negligence on the part of the
defendant to allow said boy to have and use said rifle, and you
further find from the preponderance of the evidence that said
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boy was engaged with the companion in shooting said rifle,
and while so engaged he or his companion shot the plaintiff
and wounded him, then you should find for the plaintiff.”
“On the other hand, gentlemen, if you find from the
evidence in this case that the defendant didn’t know that her
said son had said rifle, or if you find from the evidence that
said boy was competent to be intrusted with a dangerous
weapon, then you should find for the defendant.”
By the fourth and fifth assignments of error certain
portions of the Court’s charge are complained of as error.
We have examined the portions of the charge referred
to in the assignments of error, and have reached the conclusion
that when they are read in connection with the entire charge,
there is no error in them.
Plaintiffs argue that T.C.A. § 37-12-102 and which limits the “recovery” refers only to
the words “shall be entitled to recover” in the preceding Section 37-12-101, and not to the words;
“shall be liable” in the succeeding Section 37-10-103.
In Bocock v. Rose, 213 Tenn. 195, 373 S.W.2d 441 (1962), the Trial Court sustained a
demurrer to the declaration (dismissed a complaint for failure to state a claim). The Supreme
Court reversed and said:
The plaintiff sued defendants jointly and severally, for
$25,000.00 damages as a result of an alleged assault and
battery made upon the person of plaintiff, without cause or
provocation, by the minor sons of defendants. The
declaration alleged defendants had a duty to discipline their
minor sons when they have knowledge of said sons’
propensities to assault others; that defendants knew or should
have known their sons had such propensity to assault and
batter others; that defendants having such knowledge had
failed to restrain their sons; that plaintiff’s injuries and
damages were due to the assault upon him by defendants’
sons; and that as direct result of defendants’ failure to restrain
or discipline their sons plaintiff was injured.
- ---
[1] The question for decision is whether this
declaration states a cause of action; or more particularly
whether defendants owe plaintiff a duty to supervise and
control their minor sons under the circumstances alleged.
Construing the declaration in its most favorable light such
would appear to state a cause of action; if there is such a duty
as alleged. Otherwise the declaration will fail.
- ---
Although the present case is apparently one of first
impression, two cases have been cited in the briefs which are
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said to be controlling in Tennessee. An analysis of these
cases indicates they are not controlling. Highsaw v. Creech,
17 Tenn. App. 573, 69 S.W.2d 249 (1933) and Smith v.
Salvaggio, 4 Tenn. Civ. App. 727 (1914), the cases relied
upon, are situations involving parents’ negligence for
allowing minors to possess weapons, an air rifle in Highsaw
and a .22 rifle in Smith. These cases are not in point with a
situation involving a parent’s negligence in failing to restrain
a minor who has a known propensity to assault, except, as
perhaps, as an indication there may be parental liability in
some instances.
[4] We find and so hold parents may be held liable
for the dangerous habits of their minor children causing
injuries and damages to others, when, (1) the parent has
opportunity and ability to control the child, and (2) the parent
has knowledge, or in the exercise of due care should have
knowledge, of the child’s habit, propensity or tendency to
commit specific wrongful acts, and (3) the specific acts would
normally be expected to cause injury to others, and (4) the
parent fails to exercise reasonable means of controlling or
restraining the child.
The complaint in Bocock v. Rose was for $25,000.
In M.C.I. Communications Corporation v. Bonnell, Tenn. App. 1989,
unpublished, this Court said:
A telecommunications corporation filed this action
against a juvenile and his father for damages arising from the
juvenile’s use of computer equipment to invade the plaintiff’s
telephone system and obtain confidential authorization codes
assigned to the plaintiff’s customers. This appeal presents
two issues: (1) the amount of damages recoverable against the
juvenile; and (2) what liability, if any, the father has for the
conduct of his minor son.
- ---
Using an inexpensive computer, the proper software
program, and a telephone modum, sixteen-year-old Andrew
Bonnell had identified at least seventy-six operational MCI
codes; these codes would allow Andrew Bonnell to make
long distance calls and have them billed to MCI customers.
- ---
Andrew Bonnell entered a guilty plea to the charge.
The juvenile court placed him on probation and ordered him
to pay restitution of $600, the maximum amount that could be
ordered by the juvenile court. The $600 was subsequently
paid to and received by MCI.
On November 12, 1989, MCI filed this action against
Andrew Bonnell.
- ---
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Richard J. Bonnell was sued under Tenn. Code Ann. Sec.
37-10-101 (Supp.1988), which makes the parents of a minor
liable under certain circumstances for the damages caused by
the minor.
- ---
MCI contends that Tenn. Code Ann. Sec. 37-10-101 should be
interpreted to make custodial parents strictly liable up to
$10,000 for the acts of a child who willfully or maliciously
injures another person or property. Under Tenn. Code Ann.
Sec. 37-10-103, according to MCI, a parent or guardian would
be liable to an unlimited extent for negligently failing to
control a child’s known tendency to commit wrongful acts.
We are persuaded, however, that the two sections should be
read together; thus Sec. 37-10-103 provides a defense of
reasonable care to the liability imposed in Sec. 37-10-101.
The legislature’s first departure from the common law
rule of non-liability of a parent for the torts of a child came in
chapter 76 of the Public Acts of 1957. That act provides:
Section 1. Be it enacted by the General Assembly of
the State of Tennessee, That any municipal corporation,
county, township, village, school district or department of the
State of Tennessee, or any person, or any religious
organization, whether incorporated or unincorporated, shall
be entitled to recover damages in an action in assumpsit in an
amount not to exceed three hundred dollars ($300.00) in a
court of competent jurisdiction from the parents or guardian
of the person of any minor under the age of 18 years, living
with the parents or guardian of the person who shall
maliciously or willfully destroy property, real, personal or
mixed, belonging to such municipal corporation, county,
township, village, school district or department of the State of
Tennessee or persons or religious organizations.
Section 2. Be it further enacted, That the recovery
shall be limited to the actual damages in an amount not to
exceed $300.00 in addition to taxable court costs.
Section 3. Be it further enacted, that no recovery shall
be had if the parent or guardian of the person shows due care
and diligence in his care and supervision of such minor child.
We think it is clear that section 3 of the original act
provided a defense of due care and diligence to the liability
imposed in section 1. The legislature amended section 1 and
2 in 1969 by raising the amount recoverable to $2,500 and
changing the cut-off age for liability to twenty-one years.
1969 Tenn. Pub. Acts ch. 170. In 1976, the amount
recoverable was increased to $5,000 and the cut-off age was
reduced to eighteen years. 1976 Tenn. Pub. Acts ch. 408. In
1981, the legislature passed an amendment of a more
substantial nature. In the caption to chapter 161 of the Public
Acts of 1981, the legislature termed its action:
An act to increase the amount of recovery against a
parent or guardian for the act of a minor child; to modify the
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defense to such a suit; and to amend Tennessee Code
Annotated, Title 37, Chapter 10. (Emphasis added)
The substantive part of the amendment raised the
amount receivable to $10,000.00 and replaced section 3 of the
original act with most of what is now Tenn. Code Ann. Sec.
37-10-103. The only other amendments to Tenn. Code Ann.
Secs. 37-10-101--37-10-103 came in 1985 when the
legislature included personal injuries caused by the minor
child in addition too the property damages that had previously
been covered. 1985 Tenn. Pub. Acts ch. 434.
6. Contrary to the position of MCI, it seems clear that
the legislature, from 1975 to the present, has considered Tenn.
Code Ann. Sec. 37-10-103 as relating back to Tenn. Code
Ann. Sec. 37-10-101. Not one of the amendments we have
cited, in the caption or the body of the act, has mentioned
imposing strict liability on the parents of a minor child for
harm caused by the child. The reference in the caption of the
1981 amendment to “the defense to such a suit” can only refer
to Sec. 37-10-103. We think that a dramatic shift away from
the common law rule of non-liability of the parent for the
tortious conduct of a child and away from the prior statutory
treatment given to the same subject would have been attended
by some signal of intent from the legislature. Since MCI did
not allege that Richard Bonnell knew of his son’s activities or
propensities and did not furnish any affidavits or other proof
from which such an inference could be drawn, the trial judge
was correct in granting summary judgment to the father.
The complaint in this case alleges that the defendant parents were
aware that their son had a history of anti-social and criminal behavior, that he
aspired to be a gangster, and actively associated with a violent gang. The
complaint further alleges that said parents negligently failed to investigate the
information received or to take any action thereon.
Defendants’ motion for judgment on the pleadings adds nothing to the
statement of the complaint, and is the equivalent of the demurrer in Bocock
v. Rose.
This Court concludes that the complaint states a common law cause
of action against the parents of Sean Jordon to which the limiting statute is
inapplicable.
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Accordingly, the judgment of the Trial Court is reversed. Costs of
this appeal are taxed against the appellees. The cause is remanded to the
Trial Court for further proceedings.
REVERSED AND REMANDED.
___________________________________
HENRY F. TODD
PRESIDING JUDGE, MIDDLE SECTION
CONCUR:
_____________________________
BEN H. CANTRELL, JUDGE
_____________________________
WILLIAM B. CAIN, JUDGE
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