Highsaw v. Creech

22 Citing cases

  1. Henneberry v. Simoneaux

    No. M2005-02032-COA-R3-CV (Tenn. Ct. App. Aug. 22, 2006)   Cited 1 times

    King v. Smythe, 204 S.W. 296, 297 (Tenn. 1918); Nichols v. Atnip, 844 S.W.2d 655, 658 (Tenn.Ct.App. 1992); Highsaw v. Creech, 69 S.W.2d 249, 254 (Tenn.Ct.App. 1933). Although this rule prevents vicarious liability, it does not prevent parents from being held liable for their own negligence.

  2. Howell v. Hairston

    261 S.C. 292 (S.C. 1973)   Cited 14 times
    Reversing the trial court's grant of a motion for nonsuit and remanding for a new trial in an action for damages resulting from entrustment of an air rifle to a minor when it could be inferred the parents "knew that under the circumstances their son should not have been allowed unsupervised possession" of the rifle because he had a reputation as a bully and displayed "aggressive and malicious tendencies"

    As to the Trial Judge'snot having erred in passing on the credibility of the Appellant'switnesses: 249 S.C. 168, 153 S.E.2d 312; 251 S.C. 157, 161 S.E.2d 171. As to the Trial Judge's nothaving erred in holding as a matter of law that an air rifleis not a dangerous instrumentality: 57 Am. Jur.2d Negligence, Section 110, page 462; 82 Ill. App.2d 95, 227 N.E.2d 80; 17 Tenn. App. 573, 69 S.W.2d 249; 81 Wis. 239, 51 N.W. 438. October 9, 1973.

  3. Stanford v. Wal-Mart Stores, Inc.

    600 So. 2d 234 (Ala. 1992)   Cited 4 times

    The court reasoned as follows: "There are many things used by children that may be said to be unsafe when used for the purpose for which they are intended. A baseball, a baseball bat, a penknife, a Boy Scout hatchet, a bicycle, all have the capacity to injure the user or others in the course of their normal use. They are not, however, to be categorized as 'dangerous instrumentalities.' As was said by the Tennessee court in Highsaw v. Creech, 17 Tenn. App. 573, 69 S.W.2d 249, 252, 'an air gun is not a dangerous instrumentality of itself, but is in fact a toy. * * * The fact alone that an injury may be inflicted by such a toy does not make of it a dangerous instrumentality in the sense that the term is generally used.

  4. Nelson v. State

    573 S.W.2d 9 (Tex. Crim. App. 1978)   Cited 22 times
    In Nelson v. State, 573 S.W.2d 9, it was held that an indictment charging the offense of murder must allege the means used to commit the offense if such means are known to the grand jury.

    We further note that the word "gun" is defined by Black's Law Dictionary, 4th ed., as follows: "A firearm for throwing a projectile with gunpowder. Highsaw v. Creech, 17 Tenn. App. 573, 69 S.W.2d 249. A portable firearm such as a Rifle, shotgun, carbine, etc. Henderson v. State, 75 Fla. 464, 78 So. 427, 428. A pistol or revolver. State v. Christ, 189 Iowa 474, 177 N.W. 54, 57.

  5. Moning v. Alfono

    400 Mich. 425 (Mich. 1977)   Cited 405 times
    Holding that questions of duty, as a prerequisite to an actionable negligence tort, are generally for the court to decide

    They are not, however, to be categorized as 'dangerous instrumentalities.' As was said by the Tennessee court in Highsaw v Creech, 17 Tenn. App. 573, 69 S.W.2d 249, 252, 'an air gun is not a dangerous instrumentality of itself, but is in fact a toy. * * * The fact alone that an injury may be inflicted by such a toy does not make of it a dangerous instrumentality in the sense that the term is generally used.' In Morris v Toy Box, 204 Cal.App.2d 468, 22 Cal.Rptr. 572, 574-575 (1962), a complaint brought by a minor against a retailer alleging that the retailer knew that the intended user of a bow and arrow was the purchaser's ten-year-old boy was dismissed, the court saying, 'the bow and arrow has been in use by young and old alike for thousands of years. * * * To us it is simply inconceivable that a 10-year-old boy, much less his mother, would be unacquainted with the use of so common an article as the one here in question.'

  6. Atkins v. Arlans Dept. Store of Norman, Inc.

    1974 OK 62 (Okla. 1974)   Cited 13 times
    Holding although it may be foreseeable that a child may throw a lawn dart at another person, the product was not designed with such misuse in mind, thus alleged design defect was not the proximate cause of the injury and manufacturer not liable

    The Supreme Court of Illinois in Pitts v. Basille, 35 Ill.2d 49, 219 N.E.2d 472, in considering an action where a minor was struck in the eye by a dart thrown by another minor, said: "There are many things used by children that may be said to be unsafe when used for the purpose for which they are intended. A baseball, a baseball bat, a penknife, a Boy Scout hatchet, a bicycle, all have the capacity to injure the user or others in the course of their normal use. They are not, however, to be categorized as `dangerous instrumentalities.' As was said by the Tennessee court in Highsaw v. Creech, 17 Tenn. App. 573, 69 S.W.2d 249, 252, `an air gun is not a dangerous instrumentality of itself, but is in fact a toy. * * * The fact alone that an injury may be inflicted by such a toy does not make of it a dangerous instrumentality in the sense that the term is generally used.

  7. Peterson ex rel. Peterson v. Rude

    146 N.W.2d 555 (N.D. 1966)   Cited 5 times

    An air rifle is not a dangerous weapon in itself. Highsaw v. Creech, 17 Tenn. App. 573, 69 S.W.2d 249; Norlin v. Connolly, 336 Mass. 553, 146 N.E.2d 663. If the defendants in this case had been living in an apartment in a large city where an ordinance forbade the discharging of an air rifle, and if such gift to the son had been made under such circumstances without any instruction as to the use of the gun except in rural areas, and, had an accident occurred in the city, we might hold otherwise. But surely it cannot be said that giving an air rifle to a farm boy 11 1/2 years of age, under the circumstances as we find them in this case, discloses any negligence on the part of the father.

  8. Pitts v. Basile

    219 N.E.2d 472 (Ill. 1966)   Cited 36 times
    In Pitts, a child struck by a dart thrown by another child, who had purchased the dart at a neighborhood grocery, brought an action against the wholesaler of the dart and the retailers, who operated the grocery.

    There are many things used by children that may be said to be unsafe when used for the purpose for which they are intended. A baseball, a baseball bat, a penknife, a Boy Scout hatchet, a bicycle, all have the capacity to injure the user or others in the course of their normal use. They are not, however, to be categorized as "dangerous instrumentalities." As was said by the Tennessee court in Highsaw v. Creech, 17 Tenn. A. 573, 69 S.W.2d 249, 252, "an air gun is not a dangerous instrumentality of itself, but is in fact a toy. * * * The fact alone that an injury may be inflicted by such a toy does not make of it a dangerous instrumentality in the sense that the term is generally used.

  9. Bocock v. Rose

    213 Tenn. 195 (Tenn. 1963)   Cited 8 times
    In Bocock v. Rose, 213 Tenn. 195, 373 S.W.2d 441 (1962), the Trial Court sustained a demurrer to the declaration (dismissed a complaint for failure to state a claim).

    Although the present case is apparently one of first impression, two cases have been cited in the briefs which are said to be controlling in Tennessee. An analysis of these cases indicates they are not controlling. Highsaw v. Creech, 17 Tenn. App. 573, 69 S.W.2d 249 (1933) and Smith v. Salvaggio, 4 Tenn.Civ.App. 727 (1914), the cases relied upon, are situations involving parents' negligence for allowing minors to possess weapons, an air rifle in Highsaw and a .22 rifle in Smith. These cases are not in point with a situation involving a parent's negligence in failing to restrain a minor who has a known propensity to assault, except, as perhaps, as an indication there may be parental liability in some instances.

  10. Saunders v. State

    208 Tenn. 347 (Tenn. 1961)   Cited 11 times

    We think unquestionably that this is true. Then we are criticized for making the statement in arguendo in the opinion that had Mr. Alexander turned around when the shot was fired it could have put his eye out; that this constitutes no reason for the weapon being classified as a dangerous weapon because it is said that in Highsaw v. Creech, 17 Tenn. App. 573, 69 S.W.2d 249, the Court of Appeals held that an air rifle was not a deadly weapon when one was shot in the eye by a small boy with an air rifle and his eye put out. Of course, air rifles are classed as toys and are bought for small boys. As we see it, there can be no fair comparison at all to shooting one with a .20-gauge gun and a small boy in his play using an air rifle.