Costello v. Hart

Opinion

FILES, P. J.

Plaintiff is appealing from á judgment of nonsuit in a personal injury action. The record of the evidence is a settled statement. Respondent has failed to file any brief in support of the judgment below.

Defendant Ruth Hart is the grandmother of a

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-year-old boy, Steven" Palmer. She has “raised him and had the care and custody of him since his birth.”

Plaintiff was in the robe-lingerie department of Bullock’s Sherman Oaks store during business hours on the morning of December 28, 1964, when

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Steven ran out from underneath a robe rack and tripped her. She fell to the floor and sustained an intracapsular fracture of the femur. There was evidence that before this accident occurred Steven “was running around all over the place” and two of Bullock’s saleswomen “admonished him against such conduct on several occasions with the advice to him that he was liable to get hurt, but that he continued in such conduct.”

It was stipulated that defendant Hart “was present in the said department at all of the times involved herein.”

The nonsuit was granted “on the ground that a grandmother’s liability for the conduct of her minor grandson requires a showing of dangerous propensity on the part of the grandson, which propensity had not been proven.”

From the evidence the jury could have inferred that the defendant Hart had become aware of what Steven was doing and of the likelihood that Steven’s conduct would injure someone; and that she, being present, had the opportunity to control the child but neglected to' do so. Upon that view of the evidence, the jury could properly have returned a verdict in favor of plaintiff and against defendant Hart.

It was not necessary that defendant have knowledge of the child’s dangerous tendencies for any particular length of time, provided the knowledge was acquired in time to give her an opportunity to exercise reasonable measures to restrain him. (Rest. 2d Torts, § 316.)