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Under Washington Law, a Parent’s Negligent Supervision is Not Tortious and Cannot Reduce a Child Plaintiff’s Recovery

Author: Nathan Furman

Guest Editor: Cinnamon J. Carr

August 3, 2020 11:25am

Smelser v. Paul, 188 Wn.2d 648, 398 P.3d 1086 (2017) holds that when a parent’s negligent supervision causes injury to their child, the parent is not immune. Rather, the parent’s conduct is simply not tortious. Consequently, no fault can be apportioned to the parent.

In Smelser, a two-year old child was playing his father’s driveway. The father’s then girlfriend had been visiting and parked her truck in the driveway. As the girlfriend drove away, she hit the child. He was pulled under the truck and dragged for some distance, suffering severe injuries.

A lawsuit was brought on the child’s behalf against the girlfriend based on negligence. The girlfriend asserted an affirmative defense that the father, who was not a defendant, was partially or entirely responsible based on negligent supervision.

The child moved for summary judgment, arguing no fault could be apportioned to the father as a matter of law. The trial court denied the motion. The child then amended the complaint to name the father as a defendant. Notably, the amended complaint did not allege that the father was negligent or at fault. Instead the amended complaint stated that the girlfriend alleged that the father was negligent and had proximately caused the accident. The father never appeared as a party and the court entered an order of default against him.

The case proceeded to a jury trial. The child’s theory of the case was that the girlfriend was the only one who was negligent, that her negligence was the sole proximate cause of his injuries, and that the girlfriend had the burden of proving that the father was negligent.

The jury found that both the girlfriend and the father were negligent and that both proximately caused the child’s injuries. On a special verdict form, the jury attributed 50 percent of the damages to the girlfriend and 50 percent to the father.

The trial court entered judgment against the girlfriend for 50 percent of the damages found by the jury. The court did not enter any judgment against the father. The child appealed and the Washington Court of Appeals affirmed.

The Washington Supreme Court accepted review and framed the issue as whether parental immunity permits a parent to be assigned fault under Washington’s statutory comparative fault scheme based on a theory of negligent supervision.

In reaching its decision, the court acknowledged that its earlier cases had established that it is not a tort to be a bad or neglectful parent and that parents are not liable for ordinary negligence in the performance of parental responsibilities. Stated differently, “it is not a tort for parents to parent.” The Smelser court reversed and remanded to the trial court with instructions to enter judgment against the girlfriend for the entire amount of the child’s damages found by the jury.

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