Court Reviews Test for Competency of a Child to Testify

Sometimes a decision in another area of the law can prove useful in civil litigation matters.

In the case of MA v. JH, No. FC-20-20486 (C.P. Lyc. Co. Sept. 9, 2020 Tira, J.), the court addressed the competency of a child to testify in a hearing pertaining to a Protection from Abuse proceeding. 

In the end, the court found that the child was incompetent to testify due to a lack of maturity. As such, the child’s hearsay statements were also found to be inadmissible at the proceeding. 

According to the Opinion, the child was 4 ½ years of age. 

In this matter, the mother filed a Petition for Protection from Abuse. Prior to the scheduled hearing, the mother requested a tender years hearing pursuant to 42 Pa. C.S.A. §5985.1. 

This decision is notable for its reference to the test to determine the competency of a child under 14 years of age to testify. The court noted that this test was set forth in the case of Roche v. McCoy, 156 A.2d 307 (Pa. 1959). 

Under the Roche decision, it was noted that competency was the rule and incompetency was considered to be the exception. That court also ruled that, when the child is under the age of 14, a judicial inquiry into the child’s mental capacity was mandatory. The factors for the court to consider with respect to the child under the age of 14 included the child’s mental capacity, ability to communicate, and consciousness of the duty to speak the truth. 

After interviewing the child in this case, the court found that the child was not mature enough to testify. The court also ruled that the hearsay statements of the child could not come into evidence as well. 

Anyone wishing to review a copy of this decision may click this LINK. 

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Oct. 27, 2020).

Claims of Parental Liability for Acts of Adult Child Against Pennsylvania State Police Officers Allowed to Proceed

In the case of Dickson v. Frein, No. 16-CV-4887 (C.P. Lacka. Co. June 1, 2018 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed issues of parental liability for their son’s act in gunning down members of the Pennsylvania State Police (PSP) during a tragic shooting that occurred in Pike County, Pennsylvania on September 12, 2014.  

In this matter, there are three (3) civil actions arising out of an incident which resulted in the death of a PSP Corporal and serious physical injuries and emotional harm to two other members of the PSP.   

The adult shooter’s parents, who are named Defendants in these cases, filed Preliminary Objections in the nature of demurrers seeking to dismiss the negligence claims against them on the grounds that they did not know any recognized duty to the shooting victims to the actions of their adult son.   The shooter’s father also filed a demurrer to one Plaintiff’s claim that the father was vicarious liable for the tortious conduct of his son.  

Applying the demurrer standard, the court denied the Defendants’ Preliminary Objections in this regard.  

Judge Nealon noted that, in cases involving firearms that are owned or controlled by parents and located on their property, Pennsylvania law recognizes a parental duty to exercise reasonable care in controlling or restricting access to those fire arms by a minor child, or even an adult child who suffers from mental illness or a cognitive disability, such that the child’s use of a firearm may create an unreasonable risk of harm to others.  

Judge Nealon also noted that, even in the absence of a special relationship between the parents and the shooter, the parents have a duty to refrain from committing an affirmative act that is likely to affect the conduct of the shooter in such a manner as to pose an unreasonable risk of harm to others.  

In this matter, the Complaints filed contained allegations that the parents knew that the shooter suffered from mental illness, cognitive disabilities, delusions, and an inability to distinguish fantasy from reality since the time that the shooter was a child.   

The Plaintiffs also alleged that, rather than seek warranty mental health treatment for their son, the parents fostered the child’s fantasies by allegedly financing their adult son’s military simulation hobby, providing him with fire arms training, and furnishing him with a text on sniper techniques.   

The Complaints also contained allegations that the parents otherwise psychologically manipulated their son’s vulnerable mental health state and compromised his cognitive condition in other ways, including positions on ending the misuse of power by police, which allegedly caused the adult son to allegedly develop a strong antipathy towards the police.   

The Plaintiffs’ Complaints also alleged that the parents knew that the adult son had been threatening to kill others who had wronged him or others. 

Overall, the Plaintiffs alleged in their Complaints that, despite their knowledge of their son’s wayward thoughts, the parents failed to contact police or any mental health professionals regarding their son’s intentions and actions and, to the contrary, granted him unfettered access to the firearms that the parents owned or controlled at their residence, including the weapons their son used during his attack on the Pennsylvania State Police.  

Given that the Defendant’s parents had not established that it was free and clear from doubt that they owed no duty of care under Pennsylvania law to the Plaintiffs, the court denied the Preliminary Objections filed by the parent Defendants.  

Judge Nealon did otherwise dismiss the separate vicarious liability claim against the father for the criminal conduct of his son as insufficient as a matter of law due to the absence of the requisite agency relationship between the father and the shooter.  

Anyone wishing to review a copy of this case may click this LINK.

Continuing Validity of Attractive Nuisance Doctrine Under Pennsylvania Law Confirmed

Confirming that that attractive nuisance doctrine remains viable under Pennsylvania law, the Pennsylvania Superior Court recently entered summary judgment in favor of the Defendant in the case of G.W.E. v. R.E.Z., 2013 Pa. Super. 261, No. 176 MDA 2013 (Pa. Super. Sept. 27, 2013)(Gantman, Allen, and Mundy, J.J.)(Opinion by Allen, J.) (Mundy, J. Dissenting).  

The G.W.E. case involved a premises liability action where children were allegedly injured in their neighbor’s pond.  

The court affirmed the trial court’s entry of summary judgment in favor of the landowners in this negligence action in which the Plaintiffs alleged that the pond constructed by the landowners constituted an attractive nuisance.  The Plaintiffs asserted that the landowner failed to take measures to prevent harm to children.  

After confirming that the record indicated that the children were not regular or even infrequent trespassers on the property of the landowner, the court affirmed the conclusion of the trial court that the landowners did not have knowledge or reason to know of such trespass to satisfy the first element of the attractive nuisance doctrine as set forth under the Restatement (Second) of Torts §339.  

In so ruling, the Pennsylvania Superior Court majority stated that the attractive nuisance doctrine under §339 was “firmly established in our jurisprudence.” 

Under this doctrine, the frequent presence of children over an extended period of time constitutes constructive notice efficient to establish a duty of care on the part of a landowner to trespassing children.  

As noted, the court found that the record in this matter failed to establish any allegation of actual or constructive notice of children trespassing on the property.   As such, summary judgment in favor of the landowner Defendant was affirmed.
Anyone wishing to review the Pennsylvania Superior Court’s Opinion in the case of G.W.E. v. R.E.Z. may click this LINK.

Judge Mundy's dissenting Opinion may be viewed HERE.  Judge Mundy dissented on the basis that, in her view, the Plaintiff's case had met the elements of the attractive nuisance doctrine such that the landowner defendant's motion for summary judgment should have been denied.  In so ruling, Judge Mundy also acknowledged the continuing validity of the attractive nuisance doctrine in Pennsylvania.