When parents place minor children in the care and supervision of another adult, that adult assumes a duty to protect that child from unreasonable risk of harm. Degrees of duty may vary depending on the circumstance, but in general, when a person accepts this responsibility and then fails, he or she may be liable for this “breach of duty” when it results in injury to the child.
However, there can be a valid defense raised if the parent retained supervision of the child, even if he or she wasn’t in the immediate vicinity. In those situations, a parent may lose the right of action for a civil lawsuit because the establishment of “duty of care” is a key element in any negligence case.
A good example of this was seen recently in Lasley v. Hylton, a case weighed by the Virginia Supreme Court.
As our Manhattan child injury lawyers understand it, the facts giving rise to the claim involve a cookout, an all-terrain vehicle (ATV) and an 8-year-old girl. A central question in the case was the legal duty a host owes to a child of a social event when the child’s parent is present and supervising the child.
It was a long holiday weekend in 2008 when a man hosted a cookout for friends and neighbors on his property. Among the guests were plaintiff and his two daughters, age 12 and 8. The girls saw a teen boy riding an ATV and asked their father if they could ride it. The specifications on the machine indicated children under 12 should never drive the vehicle. Yet, the property owner routinely allowed neighborhood children to operate the vehicles (he had two on his property), so long as their parents allowed it and the children wore a helmet and shoes.
The older child was granted permission and had difficulty with the operation, even at one point striking the owner. Then, the 8-year-old was given a turn – after receiving permission from her father. The girl almost immediately lost control, swerved, tipped the ATV and was thrown to the ground, sustaining multiple injuries, including a broken shoulder.
A lawsuit was filed against the property owner/ATV owner, alleging he had been negligent and grossly negligent in allowing and assisting the 8-year-old to operate the ATV, not advising her father and the girl of warnings on the ATV and failing to heed the listed warnings.
Defendant argued he relied on the girl’s father as her parent to decide whether she could safely operate the vehicle. Father never asked and property owner never agreed to supervise the girls, and father was present and even assisted both girls as they rode. Defendant asserted that absent evidence of a special relationship or evidence that he owed a duty to supervise the girl, he had no duty to the girl to prevent injury.
Trial court granted summary judgment as a matter of law in favor of defendant, finding he owed no duty of care to the girl.
On appeal, plaintiff argued defendant failed in his duty as a social host to conduct his or her activities with reasonable care given the circumstances. However, defendant argued based on prior case law a host is not subject to liability if a guest knew or should have known of the potential risk of certain activities. In this case, defendant argued the risk was open and obvious.
While a child can’t be necessarily expected to know or protect her own well-being, the parent can be. Absent the establishment of duty by the host to the child, the case faltered.
The Law Offices of Nicholas Rose, PLLC offers free consultations. Call 1-877-313-7673.
Additional Resources:
Lasley v. Hylton, Oct. 31, 2014, Virginia Supreme Court
More Blog Entries:
Beebe v. St. Joseph’s – Injury Alone Insufficient to Prove Medical Malpractice, Oct. 28, 2014, Manhattan Child Injury Lawyer Blog
