Recently, the Pennsylvania Superior Court decided a Personal Injury case, Wittrien v. Burkholder, which arose out of a shooting which occurred in Lancaster County.  The central issue was whether parents of an adult child who lived with them and who legally purchased a gun could be held liable when he shot someone.  Although the parents were held blameless by the Court, the case teaches an important lesson about potential liability for the tort of Negligent Entrustment, which is allowing someone to use property which you control when they are likely to harm someone with it.

The Wittrien v. Burkholder Case

Gary Burkholder was 20 years old and lived with his parents.  When he was 18, Burkholder bought a shotgun and, at all times other than a short period when he had threatened suicide and his parents had briefly confiscated the gun, Burkholder had control of the gun.  About 5 to 7 months after his parents gave him the gun back, Burkholder shot Steven Wittrien and a New Holland police officer.  Wittrien sued Burkholder’s parents, alleging that they had been negligent in allowing their son to have the gun even though they knew that he had violent propensities, had a drinking problem and was heavily involved in the white supremacy movement.  Ultimately, the Court dismissed the lawsuit, primarily because Burkholder’s parents did not own the gun and because Burkholder was an adult who had ownership and control of the gun at all times, except during the brief period 5 to 7 months prior to the shooting when he had threatened suicide.

The Law of Negligent Entrustment

Section 308:  Permitting Improper Persons to Use Things or Engage in Activities

It is negligence to permit a third party to use a thing or to engage in an activity which is under the control of the actor, if the actor knows or should have known that such person intends or is likely to use the thing or to conduct himself in a manner as to create an unreasonable risk of harm to others.

Examples of Negligent Entrustment

The following are a few examples of situations that could be considered Negligent Entrustment and result in legal liability:

• Allowing a child or any novice to use a gun or other weapon without proper training and supervision;
• Allowing a child or any novice to use a tractor, power tool or any dangerous equipment or device without proper training and supervision;
• Lending a vehicle to someone when it is known that the person is a very bad driver or is under the influence of drugs or alcohol.

So, the lesson is to be careful who you lend things to or what you let inexperienced people do with things under your control because, if you could have anticipated the danger, you may be held liable for any accidents which occur.

Tim is a graduate of Widener University School of Law (J.D.) and the Temple University Beasley School of Law (Master’s Degree in Trial Advocacy). Tim focuses his practice in Personal Injury law, including car, truck, motorcycle, bicycle and pedestrian accidents, slip and falls, dangerous products/products liability cases and medical malpractice. Tim is a partner in the Chester County, PA, law firm of MacElree Harvey and has offices in Kennett Square and West Chester, PA, and Centreville, DE. Tim is the author of numerous publications on Personal Injury law and writes a Blog providing news and information on Personal Injury law at www.macelree.com/traynelaw and is a columnist for The Kennett Paper writing a column titled “Legal Lines.” Tim has also published two books on Personal Injury law: “A Lawyer’s Guide to Purchasing Car Insurance” and “A Lawyer’s Guide to Personal Injury Cases.” In 2007, Tim was named by Main Line Today as one of the area’s Top Personal Injury Litigators. In addition, Tim is a member of the Million Dollar Advocates Forum which recognizes the “Top Trial Lawyers in America,” with membership limited to attorneys who have won million dollar awards and settlements on behalf of their clients.

Tim can be reached by phone at 610-840-0124, by email at trayne@macelree.com or on his Blog at www.macelree.com/traynelaw.

This entry was posted on Thursday, May 14th, 2009 at 12:58 pm and is filed under Negligence Law. You can subscribe via RSS 2.0 feed to this post's comments. You can comment below, or link to this permanent URL from your own site. Your comments will appear immediately, but I reserve the right to delete innapropriate comments.