{
  "id": 8523412,
  "name": "JOY ALICIA McMILLAN, by and through her Guardian Ad Litem TRUDY McMILLAN and TRUDY McMILLAN, Individually and TOM McMILLAN, Individually, Plaintiffs v. FRAN MAHONEY, Individually and as Guardian Ad Litem for Minor Child, JERRY GUILLOT and HILDA COX, Individually, and as Guardian Ad Litem for Minor Child ANTHONY COX, Defendants",
  "name_abbreviation": "McMillan ex rel. McMillan v. Mahoney",
  "decision_date": "1990-07-17",
  "docket_number": "No. 8928SC384",
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    "judges": [
      "Judges Eagles and Greene concur."
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    "parties": [
      "JOY ALICIA McMILLAN, by and through her Guardian Ad Litem TRUDY McMILLAN and TRUDY McMILLAN, Individually and TOM McMILLAN, Individually, Plaintiffs v. FRAN MAHONEY, Individually and as Guardian Ad Litem for Minor Child, JERRY GUILLOT and HILDA COX, Individually, and as Guardian Ad Litem for Minor Child ANTHONY COX, Defendants"
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    "opinions": [
      {
        "text": "PARKER, Judge.\nOn 15 May 1986 plaintiff child Joy McMillan suffered permanent brain damage when she was struck by a pellet from an air rifle. This is an action for the damages suffered by plaintiffs in connection with this injury which was allegedly the result of negligence on behalf of both the minor and the adult defendants. Pursuant to a motion by defendants, the trial judge dismissed plaintiffs\u2019 complaint under G.S. 1A-1, Rule 12(b)(6) for failure to state a claim upon which relief could be granted. Plaintiffs appeal.\nSince the trial judge dismissed under Rule 12(b)(6), we include the relevant portions of the complaint to aid in our analysis. In their complaint plaintiffs allege the following:\n8. That on or about May 15, 1986, Defendant Guillot and Defendant Cox were shooting air rifles near the Plaintiffs\u2019 home.\n9. That either Defendant Guillot or Defendant Cox fired his air rifle in a negligent, careless and reckless manner prior to seeing the Plaintiff was in a safe position.\n10. That as a direct result of Defendant Guillot and Defendant Cox\u2019s action in shooting their air rifles, the Plaintiff was struck in her brain by a pellet from the guns, causing a permanent head injury and brain damage.\n11. That as a direct result of Defendant Guillot and Defendant Cox\u2019s negligent actions, the Plaintiff\u2019s parents have incurred responsibility for medical expenses in excess of $10,000.00.\nSecond Cause of Action\n13. That Defendant parents supplied to their respective minor children an air rifle and air rifle ammunition prior to May 15, 1986.\n14. That upon information and belief, Defendant parents could or reasonably should have foreseen the injuries that occurred as a direct result of the presentation of the air rifle to their minor children.\n15. That on May 15, 1986, the Defendant parents were negligent in permitting their children to possess and use air rifles based on all the circumstances existing at that time.\n16. That as a direct result of Defendant parents\u2019 negligence, their minor children permanently injured the Plaintiff in an amount in excess of $10,000.00 by firing a pellet that pierced the Plaintiff\u2019s brain.\n16. [sic] That the Plaintiffs are entitled to receive from the Defendant parents, jointly and severally, a sum in excess of $10,000.00 for the injuries suffered by the minor child Plaintiff.\nThe sole issue on appeal is whether the complaint is sufficient to state a cause of action for which plaintiffs are entitled to relief. Defendants argue that plaintiffs\u2019 complaint is fatally defective for two reasons. First, with regard to plaintiffs\u2019 claim against the minor defendants, defendants assert that the complaint is fatally defective in that it fails to allege concerted action and the facts as stated clearly indicate that only one of the minor defendants actually caused the injury for which plaintiffs seek recovery. Second, with-regard to the claim against the defendant parents, defendants assert that the complaint is fatally defective because plaintiffs fail to allege notice to defendant parents that their children would misuse the air rifles and, thus, plaintiffs fail to allege an essential element of negligence \u2014 foreseeability. We address each of these contentions separately.\nAlthough our research discloses no prior North Carolina cases addressing the issue of liability for the negligent acts of multiple defendants where the plaintiff\u2019s injury is the result of only one act but the plaintiff is unable to prove whose act, plaintiffs\u2019 complaint in our judgment is sufficient to state a cause of action for concurrent negligence against the minor defendants. Our Supreme Court has held that joint tort-feasors are persons who act together in committing a wrong; they share a common intent to do the act which results in the injury. Bost v. Metcalfe, 219 N.C. 607, 611, 14 S.E.2d 648, 652 (1941).\nThe Restatement (Second) of Torts states:\nFor harm resulting to a third person from the tortious conduct of another, one is subject to liability if he . . .\n(b) knows that the other\u2019s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself, or\n(c) gives substantial assistance to the other in accomplishing a tortious result and his own conduct, separately considered, constitutes a breach of duty to the third person.\nRestatement (Second) of Torts \u00a7 876(b), (c) (1977). As an illustration of this principle the Restatement gives the following example: \u201cA and B are members of a hunting party. Each of them in the presence of the other shoots across a public road at an animal, which is negligent toward persons on the road. A hits the animal. B\u2019s bullet strikes C, a traveler on the road. A is subject to liability to C.\u201d Restatement (Second) of Torts \u00a7 876(b) Comment d, illustration 6 (1977). Professors Prosser and Keeton have labeled this theory \u201cestablished double fault and alternative liability.\u201d Prosser and Keeton on the Law of Torts, \u00a7 41 (W. Keeton 5th ed. 1984). Numerous cases from other jurisdictions allow a plaintiff to recover either under this theory, under a theory of \u201cacting in concert,\u201d or under some combination of the two. See Mangino v. Todd, 19 Ala. App. 486, 98 So. 323 (1923) (where three sheriff\u2019s deputies had unlawfully shot at and injured plaintiff, the court held that the deputies were engaged in a common enterprise and that all were equally responsible for the injury); Summers v. Tice, 33 Cal. 2d 80, 199 P.2d 1, 5 A.L.R.2d 91 (1948) (where the parties were members of a hunting group and plaintiffs eye was injured by a single shotgun pellet when defendants fired simultaneously in the direction where they knew plaintiff to be standing, the court viewed both defendants as negligent and shifted the burden of proof to the defendants to absolve themselves of liability); Orser v. Vierra, 252 Cal. App. 2d 660, 60 Cal. Rptr. 708 (1967) (where three defendants were shooting at a mudhen in the direction of plaintiffs deceased, and the cause of death was determined to be a bullet fired from a pistol, applying the theories of \u201calternative liability\u201d and \u201cacting in concert,\u201d the court held that the trial court erred in granting summary judgment for defendants where two of the defendants were alternately taking turns shooting the pistol at the mudhen and a third defendant was simultaneously shooting a rifle at the mudhen); Benson v. Ross, 143 Mich. 452, 106 N.W. 1120 (1906) (where evidence showed three defendants were shooting at a target using the gun by turns, all defendants were acting in concert in a negligent manner and it was unnecessary for plaintiff to show that the shot which injured him was fired by a particular defendant); Moore v. Foster, 182 Miss. 15, 180 So. 73 (1938) (where two constables wrongly fired their guns, inflicting injury on plaintiff, the court concluded that each committed a negligent act in the commission of a common enterprise); Oliver v. Miles, 144 Miss. 852, 110 So. 666, 50 A.L.R. 357 (1926) (where the defendants both fired across a public highway during the course of a hunting expedition and a person on the highway was shot, the defendants were held to be jointly and severally liable); Kuhn v. Bader, 89 Ohio App. 203, 101 N.E.2d 322 (1951) (where the court held that parties engaged in target practice are jointly and severally liable for injury caused by ricochet even absent evidence of who fired the shot). See also Annotation, Liability of Several Persons Guilty of Acts One of Which Alone Caused Injury, in Absence of Showing as to Whose Act was the Cause, 5 A.L.R.2d 98 (1949), and Annotation, Liability for Injury or Death in Shooting Contest or Target Practice, 49 A.L.R.3d 762 (1973).\nIn their complaint, though inartfully pleaded, plaintiffs have alleged the following: (i) that the minor defendants were shooting air rifles near the plaintiffs\u2019 home on the day the minor plaintiff was injured; (ii) that one of the minor defendants fired his air rifle in a negligent, careless and reckless manner in that he failed to see that the minor plaintiff was in a safe position prior to firing; and (iii) as a result of the minor defendants shooting their air rifles, minor plaintiff was struck in her brain by a pellet and suffered permanent head injury and brain damage. Although the complaint does not contain the words \u201cacting in concert,\u201d we believe that under the recognized tort theories discussed above the complaint alleges facts sufficient to give defendants notice of the theory under which plaintiffs are proceeding. Therefore, the trial court erred in dismissing the complaint against the minor defendants pursuant to a motion under Rule 12(b)(6).\nAs to the sufficiency of the complaint to state a claim for negligence against defendant parents in giving the air rifles to their minor children, Lane v. Chatham, 251 N.C. 400, 111 S.E.2d 598 (1959), is instructive. In Lane the plaintiff sought damages for loss of his eye when defendants\u2019 son shot plaintiff with the child\u2019s air rifle. Plaintiff sought recovery from the child\u2019s parents based on the parents\u2019 alleged negligence in giving the child the air rifle and \u201cin failing, after notice of prior misuse, to prohibit, restrict or supervise his further use thereof.\u201d Id. at 401, 111 S.E.2d at 600. Defendants moved for nonsuit, but this motion was denied by the trial judge. Defendants appealed from judgment for the plaintiff. The Court stated;\nTo impose liability upon the parent for the wrongful act of his child (absent evidence of agency or of the parent\u2019s participation in the child\u2019s wrongful act), for which the child, if sui juris, would be liable, it must be shown that the parent was guilty of a breach of legal duty, which concurred with the wrongful act of the child in causing the injury.\nId. at 402, 111 S.E.2d at 601. The evidence presented at trial tended to show that defendants had given their son the air rifle for Christmas approximately eleven months prior to plaintiff\u2019s injury. Two days before plaintiff was shot, the child\u2019s mother had given him two boxes of BB shot. That same day the child had shot at plaintiff\u2019s older sister, hitting her on the hip and raising a blister. The girl had told the child\u2019s mother, who did not respond. There was additional evidence that several weeks before the incident in question defendants\u2019 son had chased another child while aiming his gun in the direction of the other child and had shot at yet another child hitting him on the arms and legs and \u201craising some marks.\u201d The mother also had knowledge of these incidents, but took no action. There was no evidence that the boy\u2019s father had any knowledge of his son\u2019s misuse of the gun. In affirming the judgment as to the mother and reversing as to the father, the Court explicitly held that:\nan air rifle is not a dangerous instrumentality per se. . . .\nIt is noted that there was no evidence as to the make or power of Raymond\u2019s air rifle. Nothing else appearing, we assume it was of the type and kind given to plaintiff and his younger brother and used generally by boys of comparable age in the community. Although the evidence is not specific, the implication is that the Lanes and Chathams lived in a rural community or small settlement where it was customary for boys of Raymond\u2019s age to have and to use air rifles in the course of their outdoor activities.\nEvidence that defendants gave Raymond an air rifle at Christmas 1956, and permitted him to use it, is insufficient, standing alone, to support a jury finding that defendants are liable for Raymond\u2019s wrongful act.\nId. at 404-05, 111 S.E.2d at 602-03. In the Court\u2019s opinion the evidence showed that the mother breached her legal duty when, after learning of her son\u2019s misuse of the gun, she failed to exercise reasonable care to prohibit, restrict, or supervise his further use of the gun. Id. at 405, 111 S.E.2d at 603. See also Moore v. Crumpton, 306 N.C. 618, 295 S.E.2d 436 (1982) (where, in a suit to recover damages for personal injuries inflicted during rape of plaintiff by defendants\u2019 son, the Court held that the parent of an unemancipated child may be held liable in damages for failing to exercise reasonable control over the child\u2019s behavior only if the parent had the ability and the opportunity to control the child and knew or should have known of the necessity for exercising such control); Anderson v. Butler, 284 N.C. 723, 202 S.E.2d 585 (1974) (where plaintiff sued to recover damages for personal injuries inflicted upon his minor son when he fell from, and was run over by, the forklift operated by defendants\u2019 minor son, the Court held that there was sufficient evidence of defendant father\u2019s independent negligence in entrusting the forklift to his minor son to take the issue of negligence to the jury, but insufficient evidence that defendant mother was negligent where the evidence showed that she was inside the house all day without knowledge of what went on outside); Patterson v. Weatherspoon, 29 N.C. App. 711, 225 S.E.2d 634, disc. rev. denied, 290 N.C. 662, 228 S.E.2d 453 (1976) (in an action to recover damages for personal injury to minor plaintiff when defendant\u2019s son struck minor plaintiff with the golf putter he was holding, this Court held that in the absence of evidence that defendant should, by the exercise of due care, have reasonably foreseen that his child was likely to use the golf putter in such a manner as to cause injury, his motion for a directed verdict should have been allowed).\nIn their complaint plaintiffs have alleged that: (i) defendant parents gave the rifles and ammunition to the minor defendants; (ii) defendant parents should have reasonably foreseen the injuries that occurred; and (iii) defendant parents were negligent \u201cin permitting their children to possess and use air rifles based on all the circumstances existing at that time.\" (Emphasis added.) Read liberally this last allegation is sufficiently broad under our notice pleading to encompass the \u201cprior notice\u201d requirement enunciated in Lane.\nOur Supreme Court has held that for liability to attach for negligent supervision, although the particular injury need not have been foreseeable, the parents must have expected consequences of a generally injurious nature. Moore v. Crumpton, 306 N.C. at 624, 295 S.E.2d at 440. Therefore, the parents\u2019 knowledge of prior misuse, or of other actions which would give notice of the need to supervise the children\u2019s use of the guns, goes to the question of foreseeability of injury to plaintiff child. This Court has held that in reviewing a demurrer to the pleadings, now a motion to dismiss pursuant to G.S. 1A-1, Rule 12(b)(6), the Court is \u201cnot concerned with whether plaintiff can prove his factual allegations; neither are we concerned with whether plaintiff can establish proximate cause, including foreseeability, at the trial. We are concerned only with whether the complaint alleges a cause of actionable negligence against the defendants.\u201d Sutton v. Duke, 7 N.C. App. 100, 106, 171 S.E.2d 343, 348 (1969), aff\u2019d, 277 N.C. 94, 176 S.E.2d 161 (1970). Based on the foregoing, we hold that the complaint is marginally sufficient to survive defendants\u2019 motion to dismiss for failure to state a claim for relief in that the general allegations give notice that plaintiffs are proceeding on a theory that defendant parents were independently liable for failing to properly supervise their children\u2019s use of the air rifles.\nIn conclusion, we note that a motion for more definite statement or other discovery pursuant to G.S. 1A-1, Rule 12 would supply factual information not provided in the original complaint. See Redevelopment Comm. v. Grimes, 277 N.C. 634, 645-46, 178 S.E.2d 345, 352 (1971); Sutton v. Duke, 277 N.C. 94, 106, 176 S.E.2d 161, 168 (1970). In the words of our Supreme Court, \u201cTo dismiss the action now would be \u2018to go too fast too soon.\u2019 \u201d Sutton v. Duke, 277 N.C. at 108, 176 S.E.2d at 169 (quoting Barber v. Motor Vessel \u201cBlue Cat,\" 372 F.2d 626, 629 (5th Cir. 1967)).\nReversed and remanded.\nJudges Eagles and Greene concur.",
        "type": "majority",
        "author": "PARKER, Judge."
      }
    ],
    "attorneys": [
      "C. David Gantt, P.A., by C. David Gantt, for plaintiff-appellants.",
      "Robert G. McClure, Jr., P.A., by Robert G. McClure, Jr., for defendant-appellees Mahoney and Guillot.",
      "Swain & Stevenson, P.A., by Joel B. Stevenson, for defendant-appellees Cox."
    ],
    "corrections": "",
    "head_matter": "JOY ALICIA McMILLAN, by and through her Guardian Ad Litem TRUDY McMILLAN and TRUDY McMILLAN, Individually and TOM McMILLAN, Individually, Plaintiffs v. FRAN MAHONEY, Individually and as Guardian Ad Litem for Minor Child, JERRY GUILLOT and HILDA COX, Individually, and as Guardian Ad Litem for Minor Child ANTHONY COX, Defendants\nNo. 8928SC384\n(Filed 17 July 1990)\n1. Torts \u00a7 2.1 (NCI3d)\u2014 injury from air rifle pellet \u2014 two defendants \u2014concurrent negligence \u2014 alternative liability \u2014acting in concert \u2014 sufficiency of complaint\nIn an action to recover for damages sustained by the minor plaintiff and her parents when she was struck in the head by a pellet from an air rifle fired by only one of the two minor defendants, plaintiffs\u2019 complaint, though omitting the words \u201cacting in concert,\u201d was sufficient to state a cause of action for concurrent negligence against the minor defendants on the theory of alternative liability or acting in concert.\nAm Jur 2d, Torts \u00a7\u00a7 57, 61.\n2. Parent and Child \u00a7 8 (NCI3d)\u2014 children\u2019s possession of air rifles \u2014 parents\u2019 negligence \u2014 sufficiency of complaint\nIn an action to recover for damages sustained by the minor plaintiff and her parents when she was struck in the head by a pellet from an air rifle, plaintiffs\u2019 complaint was marginally sufficient to survive defendant parents\u2019 motion to dismiss for failure to state a claim for relief where plaintiffs alleged that defendant parents gave the rifles and ammunition to the minor defendants; defendant parents should have reasonably foreseen the injuries which occurred; defendant parents were negligent \u201cin permitting their children to possess and use air rifles based on all the circumstances existing at that time\u201d; and such allegations gave notice that plaintiffs were proceeding on a theory that defendant parents were independently liable for failing properly to supervise their children\u2019s use of the air rifles.\nAm Jur 2d, Parent and Child \u00a7 118.\nAPPEAL by plaintiffs from judgment entered 12 January 1989 by Judge Robert D. Lewis in BUNCOMBE County Superior Court. Heard in the Court of Appeals 17 October 1989.\nC. David Gantt, P.A., by C. David Gantt, for plaintiff-appellants.\nRobert G. McClure, Jr., P.A., by Robert G. McClure, Jr., for defendant-appellees Mahoney and Guillot.\nSwain & Stevenson, P.A., by Joel B. Stevenson, for defendant-appellees Cox."
  },
  "file_name": "0448-01",
  "first_page_order": 478,
  "last_page_order": 486
}
