When children get injured and bring a lawsuit, their parent can often be named as a defendant on the basis that the parent failed to properly supervise the child. The parent can be sued by the injured child directly, or named as a defendant in a counterclaim or third party claim.
As we all know, kids are prone to small accidents. Bumps and bruises are commonplace as children learn to navigate their existence in the world. However, not every action by a parent is tantamount to negligence in tort. If that was the case, the courts would be overrun with litigation every time a child suffered even the most minor injury.
Yet there are unique circumstances that can arise where a parent’s actions do expose them to a potential finding of negligence in tort.
The standard of care applicable to parents was set by the Supreme Court of Canada back in 1978 in the decision of Arnold v. Teno.[1] The top court held that “The liability of the parent to contribute himself must be considered in view of the accepted standard of care by parents generally in the community”. In this case, the mother was on the phone when her children asked her for money to go buy ice cream from a nearby ice cream truck. She gave them money, told them to “watch out for cars”, and continued to speak on the phone. One of her children, a child aged 4, was subsequently struck by a car in the roadway. The court noted that it was common practice for neighbourhood children to go buy ice cream from the ice cream truck. Given that the mother was acting as other mothers did in the community, no contributory negligence was found on her part.
In the decision of Bartosek (Litigation Guardian of) v. Turret Realties Inc.,[2] a six year old rode his bike into the path of a car. The court had to ascertain whether there was any liability on the part of the father, in whose care the child was at the time of the collision. The father had been watching the child from his apartment unit. The court noted:
A parent cannot be held to a standard of 100 per cent supervision and immediate proximate control of a six and one half year old boy. Even if [the father] had been physically closer and actually watching when [the child] was about to start his ride down the ramp, it is unlikely that what occurred could have been prevented by him.
The court found no negligence on the part of the father.
In the decision of Farrell (Litigation Guardian of) v. 1151400 Ontario Inc.,[3] a child stuck her hand in a jaguar enclosure at a zoo, sustaining injuries. The court had to determine whether there was any contributory negligence on the part of the mother for failing to supervise the child. At the time of sustaining the injury, the child was ten feet in front of her mother, who was distracted by a commotion made by a nearby tiger. The court found no contributory negligence on the part of the mother, stating:
While the mother’s attention was naturally distracted by the turmoil created by a tiger rushing its cage, this distraction, in my opinion, did not result in abandonment of the child. With no warning signs it was not readily made apparent to [the mother] that the child may be in imminent danger.
This decision was subsequently upheld by the Court of Appeal.
Then we have the British Columbia decision of Taggart (Litigation Guardian of) v. Heuchert,[4] which has been relied upon by Ontario courts.[5] In Taggart, a ten year old was struck by a car while crossing at an unmarked crosswalk typically used by adults and children in the area. The defendant driver brought a third-party claim against the child’s mother pleading that she was negligent for failing to supervise her child. The court held that the mother was not contributorily negligent:
An error of judgment standing alone does not provide negligence if the parent’s actions are those a reasonably careful parent may have taken, viewed by the standard of care generally accepted in the community. The standard of care is not one of perfection. It does not require a parent to take every possible step to ensure the safety of the child. It is both an objective and subjective aspect.
The objective aspect requires a determination of the community standard at the time generally expected of a reasonably prudent parent. The subjective aspect places the reasonably prudent parent in circumstances identical to those Ms. Taggart faced at the time, and knowing only what she believed and understood.
In conclusion, the test to be applied is whether the parent in the circumstances acted as a reasonably careful parent would have, viewed by the standard of care generally accepted in the community. Parents aren’t held to a standard of perfection. However, they do have a responsibility to properly instruct their children of any inherent danger in an activity.
Plaintiff’s counsel should be aware of any potential finding of negligence on the part of a parent, especially when considering who to request to act as the child’s Litigation Guardian. If there is a chance a counterclaim or third-party claim may be made by the defendant against a parent, Plaintiff’s counsel is better off having another adult act as Litigation Guardian so as to avoid a conflict of interest situation.
[1] Arnold v. Teno, [1978] 2 S.C.R. 287
[2] Bartosek v. Turret Realties Inc., 2004 CanLII 10051 (ON CA)
[3] 93 ACWS (3d) 185, [1999] OJ No 4580, 1999 CarswellOnt 3961 (Sup Ct).
[4] Taggart v. Heuchert, 2013 BCSC 1248 (CanLII)
[5] See Bhatt (Litigation Guardian of) v. William Beasley Enterprises Ltd., 2015 ONSC 2168.
