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Nearor v. Davis3/19/1997
Per Curiam.
Plaintiff-appellant Sabrina Nearor ("appellant"), administrator of the estate of her son, decedent Steven N. Fitzgerald, Jr., appeals from the summary judgment granted by the Hamilton County Court of Common Pleas in favor of both defendants-appellees Claude L. Davis and Y. Jean Davis ("Devises") and intervenor-appellee West American Insurance Company ("West American"). Appellant raises two assignments of error asserting that the trial court erred by granting summary judgment in favor of both West American and the Davises. In the underlying wrongful-death complaint against the Davises and their sixteen-year-old son, Chadd Davis ("Chadd"), appellant alleged, inter alia, that Chadd negligently shot and killed Fitzgerald, and that the Davises breached their duty to protect Fitzgerald by virtue of their voluntarily allowing Chadd to invite Fitzgerald into their home. Appellant also alleged that the Davises were negligent in owning, controlling and maintaining the gun that Chadd used to shoot Fitzgerald, in allowing Chadd access to the gun, and in supervising Chadd so as to prevent his negligent handling of the gun and accidental shooting of Fitzgerald, a foreseeable event. West American, the Davises' homeowners' insurer, intervened in the action, seeking, inter alia, a declaration that it had no duty to defend Chadd or to indemnify Chadd against any judgment that might be rendered against him in favor of appellant, because Fitzgerald's death was expected or intended and its policy excluded bodily injury expected or intended by the insured.
The record discloses that on December 14, 1993, while in the Davises' home, Chadd killed Fitzgerald by shooting him in the head three times with a .22-caliber revolver taken by Chadd from under the mattress of his parents' bed. In a signed statement to the police, Chadd maintained that the initial shot to Fitzgerald's head occurred accidentally while the two were practicing dance steps in the kitchen. He explained that he cocked the hammer, and with his finger on the trigger, he and Fitzgerald "bumped or something" and "the gun went off while [Chadd] was in front of Fitzgerald." Fitzgerald fell, with a gunshot wound to his forehead. Chadd stated that he put the gun down and attempted to stop the bleeding with some paper towels. He then picked up the gun and shot Fitzgerald twice more in the head. When Chadd's eleven-year-old foster brother returned from school, he saw Fitzgerald's body and suggested that Chadd call the police. Chadd claimed that he was too frightened to do so and enlisted his brother's help in hiding Fitzgerald's body on the back porch.
The following day at school, Chadd told a friend, Bradley Dunn, that he had shot somebody in the head. That afternoon, when Dunn met Chadd at the Davises' homed Chadd told him that he had argued with Fitzgerald about a set of hair clippers allegedly stolen by Fitzgerald, and that he shot Fitzgerald because he thought that he was going to punch him. Chadd also told another friend, Jeremy Ballew, that he shot Fitzgerald because he stole hair clippers. Chadd's mother testified that she noted after Fitzgerald's death that hair clippers were missing. Chadd and Dunn disposed of Fitzgerald's body by loading it into the trunk of Mr. Davis's automobile and dumping it at an undeveloped industrial park. Chadd paid Dunn for his help by giving him the watch he removed from Fitzgerald's wrist. At approximately 5:00 p.m. the following evening, a man walking his dog discovered Fitzgerald's body and summoned the police. Subsequently, Chadd was convicted of murdering Fitzgerald pursuant to R.C. 2903.02.
To prevail on a motion for summary judgment,
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