Consenting Adults: Setting Limits on Responsibility

A recent decision by the Pennsylvania Superior Court in Wittren v. Burkholder, 2009 Pa. Super. 23; 2009 Pa. Super. LEXIS 39 (Pa. Super., February 6, 2009) considered the breadth of responsibility for the actions of another. The case arose from the shooting of the plaintiff, Stephen Wittren, by Gary M. Burkholder. On the date of the shooting, February 20, 2005, Mr. Burkholder was twenty years old and living with his parents in their home. He was the legal owner of a twelve-gauge shotgun, which he purchased in 2003. The plaintiff's daughter was visiting Mr. Burkholder's sister, who also lived with their parents. The plaintiff went to the residence to pick up his daughter, after his daughter told him that Mr. Burkholder was drinking and was in a violent state. Mr. Burkholder shot the plaintiff when he arrived at the house and also shot a police officer that day.

According to his parents, Gary Burkholder had anger management problems and a history of violent behavior, particularly when he drank. His parents testified that Gary Burkholder was also involved with white supremacy groups and had been arrested for assaulting a black man where he worked.

Mr. Burkholder's father feared for his own safety and hid the shotgun from his son nine months before the shooting incident because his son was contemplating suicide. However, a month or so later, Mr. Burkholder's parents told him where the gun was hidden, and he again took possession of it, placing it in a locked cabinet in his own bedroom.

Besides being afforded the pleasure of their son's company, Mr. Burkholder's parents were also sued as a result of the shooting for negligence and gross negligence. The defendants filed a Motion for Summary Judgment, which was granted by the Lancaster County trial court. The plaintiffs thereupon filed an appeal with the Pennsylvania Superior Court, arguing that the trial court had too narrowly construed Restatement (Second) of Torts §308 and had failed to consider the foreseeability of danger.

In regard to the first issue, the Superior Court noted that Pennsylvania has adopted Section 308. The court cited three cases: Frye v. Smith, 685 A.2d 169 (Pa. Super. 1996); Johnson v. Johnson, 600 A.2d 965 (Pa. Super. 1991); and Mendola v. Sambol, 71 A.2d 827 (Pa. Super. 1950), in which parents were found potentially negligent under Section 308 when their children injured others with a gun. However, as the Superior Court noted, all of those cases involved a minor child as the shooter and a gun was within the control of the defendant-parent. Section 308 states that negligence exists when a defendant allows a third person "to use a thing or to engage in an activity which is under the control of the [defendant]." The plaintiff could cite no Pennsylvania cases involving an adult child, but he cited an Arizona case, Tissicino v. Peterson, 121 P.2d 1286 (Ariz. Ct. App. 2005), which concerned an adult son with a drinking problem, brain damage, and a cognitive disorder. As in the Wittren case, the defendant parent took the possession of the weapon and then gave control of the weapon back to the adult child. However, the Arizona court concluded that the mother's right to control the gun constituted a factual issue.

The Superior Court noted that in Tissicino, the parents had both legal ownership and possession of the gun for a long period before the shooting and that the adult child could be considered a "feeble-minded" adult. By contrast, in the Wittren case, the adult child had legally purchased a gun and possessed the gun, except for a couple of months. Therefore, according to the Superior Court, the son did not need the "consent" of his parents to use the gun. Comment (a) of Section 308 notes that a defendant is in control only when the shooter is entitled to use the weapon "only by the consent of the defendant." The court also observed that, despite the son's violence and bigotry, there was no evidence of "cognitive disability" to render him a "feeble-minded" adult. Accordingly, the Superior Court affirmed the summary judgment. The Superior Court did not explicitly address the foreseeability issue, presumably because of its resolution of the duty question.

What lessons can be drawn from the Wittren decision? One is that Restatement (Second) of Torts §308 is alive and well in this Commonwealth and Pennsylvania courts will find a defendant liable for allowing "improper persons" to use things or engage in activities. However, the key to the application of Section 308 is that the thing used by the improper person or the activity engaged in by the improper person must be under the control of the defendant and that "control" is closely connected to the "consent" of the defendant. The improper person must use the thing or engage in the activity only with the consent of the defendant, and the defendant must have reason to believe that, by withholding consent, he can prevent the improper person from using the thing or engaging in the activity. The Superior Court did not expand this definition of "control" to include the father's temporary possession of the shotgun. The Superior Court focused on the son's legal ownership of the shotgun.

The Superior Court also declined to expand the boundaries of parental responsibility for children. "Control" was not inferred from the parental relationship or the son's residence in the house. Comment (b) of Section 308 states explicitly that to place a loaded firearm within reach of a "feeble minded" adult is negligence. Here, however, the Superior Court did not perceive a factual issue in the son's mental capabilities. The Superior Court also observed that Section 316 of Restatement (Second) of Torts states specifically that a parent's duty to control a child is limited to control of a minor child.

Finally, the Superior Court made the ambiguous statement that the "[plaintiff] does not argue that [defendants] owed a duty to him pursuant to §315 of the Restatement," which governs special relationships among certain parties. Comment (c) to Section 315 notes that the "special relation" between a defendant and third person which would require a defendant to control the third person is set forth in Sections 316 through 319 of the Restatement. The Superior Court implied that none of those defined relationships would fit the circumstances of this case. Section 316 asserts the duty to a parent but only to a minor child. Section 317 describes the duty of an employer to control the conduct of an employee, while Section 318 defines the duty of a possessor of land to control the conduct of a licensee. Section 319 appears applicable to this case since it describes a duty for persons having "dangerous propensities," which would seem to describe the son in the Wittren case. However, the duty is charged to "[o]ne who takes charge" of the third person with the violent propensities. Here the parents hardly took control of their son and appeared to be frightened bystanders. Therefore, the general lesson of Wittren appears to be that, while Pennsylvania courts acknowledge the existence of a defendant's duty for the conduct of an "improper" third person, that duty is not an expansive one and, hopefully, will continue to be carefully circumscribed by Pennsylvania courts.

*Hank is a shareholder and works in our Philadelphia, Pennsylvania, office. He can be reached at (215) 575-2660 or