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HomeMy WebLinkAbout00-515 CivilBARBARA VERA WEAVER,: IN THE COURT OF COMMON PLEAS OF Administratrix of the Estate of: CUMBERLAND COUNTY, PENNSYLVANIA VERONICA LYNN VERA, Plaintiff Vo CIVIL ACTION- LAW GARY DEAN BARRICK, JR.,: JACK MYERS and BETTY MYERS, Defendants : NO. 2000-515 CIVIL TERM IN RE: MOTIONS FOR SUMMARY JUDGMENT OF DEFENDANTS JACK MYERS AND BETTY MYERS BEFORE HOFFER, P.J., HESS and OLER, JJ. ORDER OF COURT OLER, J., December 5, 2003. In this civil action, Barbara Vera Weaver (hereinafter Plaintiff), who is the mother of decedent Veronica Lynn Vera and the administratrix of her late daughter's estate, brought a survival action~ and a wrongful death action2 against Gary Dean Barrick, Jr., as well as Barrick's mother, Betty Myers, and Barrick's stepfather, Jack Myers.3 For disposition at this time are motions for summary judgment filed on behalf of Defendants Betty Myers and Jack Myers (hereinafter Defendants), seeking dismissal of Plaintiff's claims against them. For the reasons stated in this opinion, the Defendants' motions for summary judgment will be denied. ~Act of July 9, 1976, P.L. 586, as amended, 42 Pa. C.S. §8302, as provided for by Act of June 30, 1972, P.L. 508, as amended, 20 Pa. C.S. §3373. : Act of July 9, 1976, P.L. 586, as amended, 42 Pa. C.S. §8301. ~ Plaintiff's amended complaint, filed March 10, 2000 (hereinafter Complaint at ~. STATEMENT OF FACTS For purposes of the Defendants' motions, the record consists of: Plaintiff's amended complaint,4 preliminary objections of Defendants to Plaintiff's amended complaint,5 Plaintiff's answer to preliminary objections of Defendants to Plaintiff's amended complaint,6 answer of Defendants to Plaintiff's amended complaint and new matter of Defendants,7 Plaintiff's reply to new matter,8 Defendants' motions for summary judgment,9 and Plaintiff's responses to their motions for summary judgment,l° as well as a number of depositions and exhibits appended to the motions and answers. Plaintiff advances negligence as the underlying theory of liability for the survival and wrongful death actions against Defendants Jack and Betty Myers.~ Viewed in the light most favorable to the Plaintiff, the evidence may be summarized as follows: On October 29, 1999, Defendant Gary Dean Barrick, Jr., was found guilty of first degree murder~2 for the February, 1999, killing of Veronica Lynn Vera.~3 At the time of the murder, Barrick was living with Defendants Jack and Betty Myers, his stepfather and mother.TM Defendant Jack Myers routinely stored two loaded handguns in a lockable glove box under the front passenger's seat of a Filed March 10, 2000. Filed March 22, 2000. Filed March 27, 2000. Filed May 24, 2000. Filed June 5, 2000. Filed February 26, 2003. l0 Filed March 27, 2003. Complaint at 5-9. ~2 Act of Dec. 6, 1972, P.L. 1482, as amended, 18 Pa. C.S. §2502(a). ~3 C.C.C.C.P. doc. num. 1999-00426, Criminal Term. ~4 Deposition of Defendant Jack Myers at 12, August 30, 2001. 2 minivan that he and Defendant Betty Myers owned.~5 The Plaintiff alleges Barrick used one of these handguns to kill Ms. Vera.~6 The key which operated the lock on the glove box, where the handguns were stored, was retained on the same keychain as the ignition key, which was kept in the unlocked minivan's ignition. ~7 The minivan was routinely parked in the garage of the home, which was accessible through the kitchen,la Defendant Jack Myers testified at his deposition that he did not believe Defendant Barrick knew the handguns were kept in the minivan.~9 Defendant Barrick testified at his deposition that he knew handguns were stored in the several vehicles driven by Defendant Jack Myers.2° Defendant Jack Myers testified at his deposition that Defendant Barrick never saw him with guns and that he never took Barrick with him on fire calls.2~ He further testified he was not aware that Barrick had a felony conviction at the time of the killing, but was aware of some of the "terrible" circumstances surrounding a conviction for which Barrick had spent time in the State Correctional Institution at Somerset.22 The affidavit of probable cause accompanying the criminal complaint, which ultimately led to Barrick's aggravated assault conviction, set forth the following alleged details of the offense: the victim was assailed at his Carlisle ~s Deposition of Defendant Jack Myers at 4, 16, August 30, 2001; Exhibit A (title to minivan), attached to Plaintiff's response to Defendant Betty Myers' motion for summary judgment, filed March 27, 2003. 16 See generally Complaint. ~v Deposition of Defendant Jack Myers at 8, 16-17, August 30, 2001. ~8 Deposition of Defendant Betty Myers at 13-14, August 30, 2001. 19 Deposition of Defendant Jack Myers at 20, August 30, 2001. :0 Deposition of Defendant Gary Dean Barrick, Jr., at 13-14, March 15, 2002. :~ Deposition of Defendant Jack Myers at 33-34, August 30, 2001. It was Jack Myers' practice to carry a weapon occasionally on those fire calls. Deposition of Jack Myers at 36, August 30, 2001. :: Deposition of Defendant Jack Myers at 17-18, August 30, 2001. 3 home by Barrick, Terry Porter, and Tony Kintner;23 the three men bound his wrists, blindfolded him, and then gagged him, breaking two teeth in the process;24 the three then beat him with a belt, burned him with cigarettes and lighters, and sodomized him with a dildo and a whiskey bottle, which were left inside the victim, rupturing his intestine;25 the assailants then urinated on the victim and left him tied to a bed, after stealing money from his wallet.26 Defendant Barrick offered testimony at his deposition which contradicted certain depositional testimony of Defendant Jack Myers, stating that, as a child, he had hunted with Defendant Jack Meyers, and had responded to fire calls with Myers, where Myers would carry a gun.27 Defendant Barrick further testified that he was allowed to drive the minivan on occasion.28 Defendant Barrick also testified that he knew guns were in the vehicles driven by Defendant Jack Myers, and that Barrick had retrieved and possessed one of the guns for a period of three days in November of 1998.29 He further testified that Defendants Jack and Betty Myers knew of his felony assault conviction and the underlying circumstances thereof.3° Defendant Betty Myers testified at her deposition that Defendant Barrick was not allowed to drive, and never drove, the minivan, and that she knew guns were kept in the minivan, but not where they were inside of the vehicle.3~ She 23 Exhibit E, attached to Plaintiff's response to Defendant Jack Myers' motion for summary judgment, filed March 27, 2003. 26 x/d. :7 Deposition of Defendant Gary Dean Barrick, Jr., at 5, 6, 12-13, March 15, 2002. :8 Deposition of Defendant Gary Dean Barrick, Jr., at 18, March 15, 2002. 29 Deposition of Defendant Gary Dean Barrick, Jr., at 13, 26-28, 32, March 15, 2002. 30 Deposition of Defendant Gary Dean Barrick, Jr., at 10-11, March 15, 2002. ~ Deposition of Defendant Betty Myers at 16, 23, August 30, 2001. 4 testified that she kept duplicates of the minivan's keys on her keychain.32 She also testified that she knew Defendant Barrick had been convicted of a felony.33 Additionally, Defendant Barrick's former parole officer, through depositional testimony, stated that, while he was supervising Defendant Barrick for various criminal infractions, his mother was actively involved in the supervision, and initiated numerous telephone calls to him.34 DISCUSSION Statement of la,:. Under the Pennsylvania Rules of Civil Procedure, with respect to summary judgment, it is provided as follows: [A]ny party may move for summary judgment in whole or in part as a matter of law 1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or 2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury. Pa. R.C.P. 1035.2. On a motion for summary judgment, the record includes pleadings, depositions, answers to interrogatories, admissions, affidavits and expert reports. Pa. R.C.P. 1035.1. When considering a motion for summary judgment, a court is to view the record in the light most favorable to the non-moving party, and all doubts as to the presence of a genuine issue of material fact must be resolved in 32 Deposition of Defendant Betty Myers at 12, August 30, 2001. 33 Deposition of Defendant Betty Myers at 24-25, August 30, 2001. 34 Deposition of Thomas A. Boyer at 9-10, December 31, 2002. favor of the non-moving party. Dean v. Commonwealth, 561 Pa. 503, 507, 751 A.2d 1130, 1132 (2000). Oral testimony alone, either through testimonial affidavits or depositions, of the moving party or the moving party's witnesses, even if uncontradicted, is generally insufficient to establish the absence of a genuine issue of material fact for purposes of a motion for summary judgment. Nanty-Glo v. American Surety Co., 309 Pa. 236, 163 A. 523 (1932); Porterfield v. Trustees of Hosp. of Univ. of Pa., 441 Pa. Super. 529, 531, 657 A.2d 1293, 1294-95 (1995). In Pennsylvania, the four elements required to establish a cause of action for negligence are: a duty or obligation recognized by the law, a breach of that duty by the defendant, a causal connection between the defendant's breach of that duty and the resulting injury, and actual loss or damage suffered by the complainant. Reilly v. Tiergarten, Inc., 430 Pa. Super. 10, 14, 633 A.2d 208, 210 (1993) (citing Ornerv. Mallick, 515 Pa. 132, 135, 527 A.2d 521,523 (1987)). The standard of care in a negligence action dealing with dangerous instrumentalities is reasonable care under the circumstances. Stewart v. Motts, 539 Pa. 596, 604-05, 654 A.2d 535, 539 (1995). As the degree of danger increases, so must the degree of care exercised by the reasonable person. Id.; Lineaweaver v. John FFanamaker Philadelphia, 299 Pa. 45, 49, 149 A. 91, 92 (1930). An owner of a handgun owes a duty of reasonable care to all persons who might suffer from its discharge, whether through his or her own actions, or through the actions of a third person if the owner knows or has reason to know that the third person would use the handgun in a way that would create an unreasonable risk of harm to others. Kuhns v. Brugger, 390 Pa. 331, 344, 135 A.2d 395, 403 (1957) (citing RESTATEMENT (SECOND) OF TORTS, §308 (1969)). In order for a defendant to be held liable for a third person's misuse of a dangerous instrumentality, the defendant must possess a degree of control over the dangerous instrumentality. RESTATEMENT (SECOND) OF TORTS, §308 cmt. a; see generally Nyman v. Soutter, 205 Pa. Super. 8, 205 A.2d 685 (1965). 6 Application of law to facts. Although the present case is admittedly a close one with respect to liability of the moving parties, the court is of the view that the record contains sufficient evidence of disputed issues of material fact to preclude an award of summary judgment at this time in favor of Jack and Betty Myers. These issues include the degree of awareness of Defendants Jack and Betty Myers of Defendant Barrick's inclination in the past toward serious criminal violence, the extent to which the handgun allegedly used to kill Plaintiff' s decedent was secured by Defendants against Barrick's access to it in furtherance of such propensities, and the reasonableness of the security measures undertaken in light of the risk to others involved. Accordingly, the following order will be entered: ORDER OF COURT AND NOW, this 5th day of December, 2003, upon consideration of Defendants' motions for summary judgment, and for the reasons stated in the accompanying opinion, the motions are denied. BY THE COURT, J. Wesley Oler, Jr., J. Mark F. Bayley, Esq. Rominger & Bayley 155 South Hanover Street Carlisle, PA 17013 Attorney for Plaintiff Jeffrey B. Rettig, Esq. Hartman, Osborne & Rettig, P.C. 126-128 Walnut Street Harrisburg, PA 17101 Attorney for Defendants Jack Myers and Betty Myers 7 Gary Dean Barrick, Jr. SC1 Somerset 1590 Walters Mill Road Somerset, PA 15510-0001 Defendant, Pro Se 9 BARBARA VERA WEAVER,: IN THE COURT OF COMMON PLEAS OF Administratrix of the Estate of: CUMBERLAND COUNTY, PENNSYLVANIA VERONICA LYNN VERA, Plaintiff CIVIL ACTION- LAW GARY DEAN BARRICK, JR.,: JACK MYERS and BETTY MYERS, Defendants : NO. 2000-515 CIVIL TERM IN RE: MOTIONS FOR SUMMARY JUDGMENT OF DEFENDANTS JACK MYERS AND BETTY MYERS BEFORE HOFFER, P.J., HESS and OLER, JJ. ORDER OF COURT AND NOW, this 5th day of December, 2003, upon consideration of the motions for summary judgment filed on behalf of Defendants Jack Myers and Betty Myers, and for the reasons stated in the accompanying opinion, the motions are denied. BY THE COURT, J. Wesley Oler, Jr., J. Mark F. Bayley, Esq. Rominger & Bayley 155 South Hanover Street Carlisle, PA 17013 Attorney for Plaintiff Jeffrey B. Rettig, Esq. Hartman, Osborne & Rettig, P.C. 126-128 Walnut Street Harrisburg, PA 17101 Attorney for Defendants Jack Myers and Betty Myers Gary Dean Barrick, Jr. SC1 Somerset 1590 Walters Mill Road Sumerset, PA 15510-0001 Defendant, Pro Se