Appeal from the Judgment entered on February 8, 2008, in the Court of Common Pleas of Lancaster County, Civil Division, at No(s). CI-06-04401.
The opinion of the court was delivered by: Lally-green, J.
BEFORE: LALLY-GREEN, GANTMAN and ALLEN, JJ.
¶ 1 Appellant, Steven Wittrien, appeals from the February 8, 2008 judgment entered against him in his negligence action against Appellees, Gary and Brenda Burkholder. We affirm.
¶ 2 The trial court's opinion sets forth the following facts:
This matter stems from a shooting that occurred on February 20, 2005. Gary M. Burkholder, the adult son of the Defendants, shot Steven Wittrien, Plaintiff, with a shotgun wounding him in the face, hand and chest. Plaintiff filed a two count complaint against the Defendants on May 4, 2006 alleging negligence and gross negligence caused by the acts of their son.
The relevant facts for disposition of this motion are as follows. On February 20, 2005, Gary M. Burkholder was twenty (20) years old having been born on December 21, 1984. He was living at 525 Gristmill Road, Martindale, PA, his parents' home. He was the owner of a 12 gauge shotgun which he legally purchased from the Sportsmen's Shop in New Holland, PA on February 11, 2003 when he was eighteen (18) years old. This was the gun that was used in the shooting.
On the day in question in addition to the Defendants and Gary M. Burkholder, also living in the residence were Defendants' daughter, Jennifer Wittrien and her and Plaintiff's daughter Brittany. Plaintiff went to this residence to pick up his daughter because he received notice from Jennifer that Gary M. Burkholder was drinking and in a violent state. When Plaintiff arrived he was shot by Gary M. Burkholder.
The gun in question was kept by Gary M. Burkholder in a locked cabinet in his room. Prior to the incident, on Mother's Day 2004, (May 9, 2004) Defendant Gary L. Burkholder took the shotgun from his son and hid it because he was threatening suicide. Sometime between five (5) and seven (7) months prior to the incident he was told where the gun was and he again took possession of it.
The Court will also assume as true the factual background in Plaintiff's brief which is as follows:
On February 20, 2005, Defendants' son shot Plaintiff Steven Wittrien (along with a New Holland police officer) on their property at 525 Gristmill Road, Martindale, PA 17522-9300. Defendants knew their 20-year-old son, who lived with them, had violent propensities; became violent when he drank; and had a history of violent behavior. Defendants had confiscated and hid their son's shotgun after an incident on Mother's Day, 2004. Defendant Mr. Burkholder feared for his safety for two (2) years prior to the shooting of February 20, 2005, and realized his son "shouldn't have had a shotgun." Defendant Mr. Burkholder described his son, as a "ticking time bomb" and knew of his son's: ongoing communications with hate groups; prior conviction for assault stemming from racial intimidation; drinking problem; and violent propensities. In her statement to police, Defendant Mrs. Burkholder described how:
[H]e's into white supremacy now. I think he's been into this for about 6 months. He got his computer in July and things started to go downhill after that. . He had to attend Anger Management and pay a fine. He's had an anger problem since about 11th grade on.
Defendant Mr. Burkholder continued:
He's been listening to pretty bad tapes, killing black people, terrible things. He was also arrested on November 2nd for an assault on a black man at their work. He was in jail for ten days after that. I ...