Copyright 2009 Edward E. Scher
 

Virginia Supreme Court Holds That Parents Owe Duties To Visiting Children

The Virginia Supreme Court recently held that adults who agree to supervise and care for a child owe a duty to exercise reasonable care in the supervision and care of that child. The case is Kellermann v. McDonough, 679 S.E.2d 203; 2009 Va. LEXIS 79 (Record no. 081718) (2009). The case arose out of the tragic death of a 14 year old girl while visiting a friend.

In the Kellermann decision, the Supreme Court evaluated whether or not the plaintiff’s allegations in the lawsuit were sufficient to state a valid claim under Virginia law against the defendants. The plaintiff was Mr. Kellermann; the defendants were Mr. and Mrs. McDonough.

Here is a summary of the plaintiff’s allegations: Mr. and Mrs. McDonough (of Virginia) invited the Kellermanns’ 14 year-old daughter Jaimee (of North Carolina) to spend a few days and nights at their home with the McDonough’s fourteen year-old daughter Becka. The Kellermanns agreed to this with the express understanding that the McDonoughs would ensure that Jaimee would not be in cars driven by any inexperienced drivers or by any young, male drivers. Mrs. McDonough agreed to this and “promised to take care of her.” After the Kellermanns left Jaime with the McDonoughs, Mrs. McDonough took the two girls to a mall and movie complex and dropped them off and drove away, leaving them unsupervised. Several hours later, Becka called Mrs. McDonough and either asked or told her mother that her friend Nate, a 17 year-old allegedly with a reputation for reckless behavior, would drive them home. Mrs. McDonough permitted this. Jaimee did not want to ride with Nate. Jaimee was aware that Mrs. McDonough permitted this, so she tried to call other adults for help, but she was unable to reach them. So she reluctantly got into Nate’s car. Thereafter, Nate allegedly drove recklessly, frightening Jaimee to the extent that she sent a text message to her father saying that she feared for her life. Eventually, Nate wrecked the car. Jaimee died the next day from her injuries. The Administrator of Jaimee’s estate sued the McDonoughs.

It is important to understand that these are just allegations. Neither side introduced evidence during the proceedings in this case. The trial judge ruled that the allegations were not sufficient to state a valid claim under Virginia law against the McDonoughs. No judge or jury has found the allegations to be true at this point.

The McDonoughs argued to the trial court that, as a matter of law, they were not responsible for Nate’s actions and that they had no duty to protect Jaimee from Nate. The trial court agreed with the McDonoughs and dismissed the case.

On appeal, the Virginia Supreme Court reversed, finding that both McDonoughs had a duty to use reasonable care in the supervision and care of Jaimee. Here is a portion of the Court’s analysis:

We hold that when a parent relinquishes the supervision and care of a child to an adult who agrees to supervise and care for that child, the supervising adult must discharge that duty with reasonable care. However, such adult who agrees to supervise and care for a child upon the relinquishment of that care and supervision by the child's parent is not an insurer of the child's safety. Rather, the supervising adult must discharge his or her duties as a reasonably prudent person would under similar circumstances.

In this case, Kellermann pled sufficient facts that support the existence of this common law duty. As we have already stated, both Paula and Paul McDonough invited Jaimee to visit their family, and the McDonoughs knew Jaimee was a 14-year-old child. Kellermann alleged that Jaimee was in the care of the McDonoughs for approximately two days, that she was dependent upon their supervision and care, that they breached their duty to supervise and care for her, and that she died as a result of the McDonoughs' breaches of duty.

The Court also noted that this holding is consistent with the majority of other states that have considered the issue whether an adult who agrees to supervise and care for a minor has a duty to exercise reasonable care in the supervision of that minor.  The Court explained the common sense behind this rule:

If this Court were to agree with the McDonoughs, that they do not owe a duty in tort to supervise and care for a child whose parents have relinquished such supervision and control to them, such holding would yield absurd results. For example, an adult who agreed to supervise and care for a group of four-year-old children could permit the youngsters to play in a street at a dangerous and busy intersection, and yet that supervising adult would not be subject to tort liability for her negligent supervision and care. Additionally, under the McDonoughs' view of this case, an adult who agreed to baby-sit and care for a group of four-year-old boys in her home overnight could allow the boys to play with loaded pistols without being subject to any tort liability in the event one of the boys fired a pistol and killed another child.

Additionally, the Court held that a claim could proceed against Mrs. McDonough on the separate theory that she expressly assumed a duty to render services to Jaimee by reason of her express agreement with the Kellermanns’ conditions and her assurance that she would “take good care of” Jaimee.

The Court held that the jury would have to decide whether the McDonoughs’ alleged breach of their duty was a cause of Jaimee’s death. The McDonoughs argued that Nate’s misconduct was the sole proximate cause of Jaimee’s death and that therefore, as a matter of law, they could not be held liable for her death. The Court said that the jury could disagree with the McDonoughs and find that the McDonoughs’ conduct was also a cause of Jaimee’s death. The Court held that the McDonoughs could not avoid liability, as a matter of law, simply because Nate was the person who engaged in the active misconduct that ultimately led to Jaimee’s tragic death.