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Smith v. Brooks

The defendants had no reason to anticipate that their son would ignore their instructions and allow the plaintiffs' sons to load and fire an antique, partially inoperable firearm that defendants keep over their fireplace.

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Debbie Smith brought this action as custodian of Patrick Johnson, a ten-year-old child, after Patrick was accidentally shot and wounded by his brother Danny with a .22 rifle at the Brookses’ home while visiting their son Gary, Jr. Smith contended that the Brookses were negligent in allowing the boys access to a firearm and ammunition while they were absent from the home. After discovery, including depositions of the parties and witnesses, the trial court granted summary judgment in favor of the Brookses. Because Smith has failed to show, as required, both that the Brookses negligently made available a dangerous instrumentality to their son and that they knew of a proclivity on the part of their son for engaging in the specific dangerous activity, we must affirm.

Construed in favor of the respondent, the evidence shows that Smith’s sons, Patrick and Danny Johnson, were ten and twelve years old respectively at the time of the incident. They told their mother they were going to the park, but Patrick went to the Brookses’ home instead and Danny followed him. When they arrived, they found twelve-year-old Gary Brooks, Jr. home alone.

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