Causes of Action: Parental Duty to Supervise Children

Thomas v. Bottoms, COA, NPO, 12/22/2017

In this case, the COA has a tight summary and analysis of claims for negligent parental supervision of their children.  Briefly, the plaintiff was guest at an outside party and was hit in the back of her head by a water balloon thrown by a five year-old and the other child ducked.  Boom she was hit.

Here are excerpts from the case:

The general rule with respect to a parent’s duty to supervise a child is as follows:

A parent is under a duty to exercise reasonable care so to control his minor child as to prevent it from intentionally harming others or from so conducting itself as to create an unreasonable risk of bodily harm to them, if the parent

(b) knows or should know of the necessity and opportunity for exercising such control.

The existence of a parent’s duty to control a minor child largely turns on the foreseeability of the child’s injurious conduct. For a child’s act to be foreseeable, it is not necessary that the child have committed that same act before. A duty to control the child may also arise where the child previously has committed a very similar act and there are circumstances making it foreseeable that the child might later commit the specific act at issue.

Hugenberg v. W. Am. Ins. Co./Ohio Cas. Grp., 249 S.W.3d 174, 181- 82 (Ky. App. 2006) (quoting Restatement (Second) of Torts § 316 (1965)).

. . .

“The essence of a negligent supervision claim is that the parent’s ‘failure to exercise due care has made it possible and probable that the child would injure another.’” Hugenberg, 249 S.W.3d at 181 (citing Moore, 418 S.W.2d at 248). In the present case, no evidence in the record supports that E.B. had previously engaged in conduct that had the potential to cause harm. See generally, James v. Wilson, 95 S.W.3d 875, 887 (Ky. App. 2002) (The minor child went to his high school and shot and killed three students and injured five more. This Court affirmed the granting of the summary judgment as to the parents regarding negligent supervision because there was no evidence that the child had ever exhibited violent tendencies toward anyone.) Therefore, the Breiners were under no duty to take precautionary measures that would have prevented Linda from getting hit with a water balloon.

Regarding Linda’s negligence claims against Nelson Bottom, it is well settled in Kentucky that a social guest is considered a licensee. Shipp v. Johnson, 452 S.W.2d 828 (Ky. 1969); Restatement (Second) of Torts, § 330 cmt. H.3

(1965). “[A] premises owner or occupant owes a duty to a licensee not to willfully or wantonly injure the licensee and to warn of dangerous conditions known by the owner/occupant.” Klinglesmith v. Estate of Pottinger, 445 S.W.3d 565, 567 (Ky. App. 2014). 1 It was not foreseeable that a five-year old child playing with a water balloon would injure an adult at the party, and E.B. had not engaged in similar injurious conduct in the past. Accordingly, there was nothing of which to warn Linda. Moreover, the children were playing out in the open. Accordingly, Linda cannot create a genuine issue of material fact sufficient to survive summary judgment against Nelson Bottoms.

Regarding Linda’s claims against Dixie Bottoms, the landlord, “[a] long line of cases in this Commonwealth hold that when a third person is injured on rented premises his cause of action, except for certain situations, lies against the tenant rather than the landlord.” Rogers v. Redmond, 727 S.W.2d 874, 875 (Ky. App. 1987). Consequently, summary judgment was correctly granted for any claims against Dixie.

In light of the above-stated reasons, the circuit court’s grant of summary judgment to all appellees in this case was warranted. Therefore, we AFFIRM.

From Thomas v. Bottoms