746 N.E.2d 685 | Ohio Ct. App. | 2000
I THE TRIAL COURT ERRED IN GRANTING CINCINNATI INSURANCE COMPANY'S MOTION FOR SUMMARY JUDGMENT FILED IN THE CONSOLIDATED DECLARATORY JUDGMENT ACTION BECAUSE THERE ARE GENUINE ISSUES OF MATERIAL FACT IN DISPUTE AND CINCINNATI INSURANCE COMPANY, AS THE MOVING PARTY, IS NOT ENTITLED TO JUDGMENT AS A MATTER OF LAW.
As an appellate court reviewing summary judgment motions, we must stand in the shoes of the trial court and review summary judgments on the same standard and evidence as the trial court. Smiddy v. The Wedding Party, Inc. (1987),
a. bodily injury,
b. property damage,
c. personal injury.
Under the Civ.R. 56 standard, we are required to construe the facts in a light most favorable to the non-moving party (appellant herein). Appellee concedes only to the facts that "Michael Guthrie took a .357 magnum across the street from his home and murdered Tammy Offhaus. He subsequently has sex with the body. He has pled guilty to these crimes and admitted to committing them in open court." See, Appellee's December 17, 1999 Motion for Summary Judgment at 5. Appellant avers in his complaint that the Hutmans gave Mr. Guthrie access to the gun box where the .357 magnum was stored, were aware that Mr. Guthrie routinely carried the gun and were aware that Mr. Guthrie was not welcome in the Offhaus home. See, Complaint filed April 29, 1999 at paragraphs 8-12. Under the causes of action, appellant claimed Mr. Guthrie committed an intentional tort and the Hutmans are liable under R.C.
The second statement was made by the Hutmans. Mr. Hutman stated the .357 magnum was kept locked in a gun lock safe and that Mr. Guthrie had one of three keys to the said safe. See, Memorandum dated September 30, 1998. The Hutmans both acknowledged that Mr. Guthrie was not a novice with guns and had used the .357 magnum in the past to target shoot. Id. During the making of this statement, the Hutmans were clearly aware that Mr. Guthrie was a suspect in the case. Although it may be subject to argument, it can be surmised that the Hutmans, as Mr. Guthrie's mother and step-father, were aware their statement was against their penal interest for the purposes of the summary judgment motion. Upon review, we conclude operable facts of evidentiary value as to the negligent supervision and negligent entrustment claims are in the record. Appellant argues the "occurrence" sub judice is the negligent supervision claim and the negligent entrustment claim, not the acts of murder and sexual abuse of a corpse. Appellee on the other hand argues said claims are not separate acts or "occurrences" separate and apart from the criminal acts. In Huston v. Konieczny (1990),
Parents may incur liability when they negligently entrust their child with an instrumentality (such as a gun or car) which, because of the child's immaturity or lack of experience, may become a source of danger to others. See, e.g., Davis v. Mack (C.P. 1939), 29 Ohio Law. Abs. 210, 15 O.O.4, and Bankert, supra.
The matter sub judice is not about liability but coverage under a homeowner's policy. We find the Supreme Court of Ohio's dicta in Cuervo v. Cincinnati Ins. *94
Co. (1996),
The judgment of the Court of Common Pleas of Ashland County, Ohio is hereby affirmed.
*95________________________ FARMER, J.