Parental Responsibility Laws and Personal Injury

 

Parental Responsibility Laws and Personal Injury

Many people don't realize that parents can be held legally liable for the acts of their minor children. Though the specifics vary, almost every state has enacted some version of this kind of law, and it usually applies to intentional acts committed by the child. In some states, parents may even be liable for accidents caused by their children. (Get the basics on Accidents and Injuries Involving Children.)

What are Parental Responsibility Laws?

Parental responsibility laws have been a mainstay of our legal system for more than a century. Hawaii was the first state to enact a law of this type in 1846, and to this day Hawaii’s version of the law remains one of the most encompassing in its application. In most states, the concept of parental responsibility applies to both the criminal and civil acts of the child.
While it may appear to be unfair for a parent to be held responsible for the acts of a child, state legislatures have decided that an innocent victim should not bear the financial burden of property damage or medical expenses that results from some other person's wrongdoing.
The reasoning behind such laws is that parents have a legal duty to take reasonable steps to supervise their minor children, and if they fail to fulfill that obligation, and the child ends up causing harm to another person or to property, the parent is legally (usually that means financially) responsible.

How Young Does the Child Have to Be?

A minor is any person who has not yet reached the age of majority. The age at which a child legally becomes an adult varies from state to state, but in most states that age is 18. Most states that have parental responsibility laws have established the rule that parents can be held responsible for the acts of their child only until the child reaches 18 years of age. However, at least one state has expanded parental responsibility to include children up to 21 years of age in certain situations.

Examples of Parental Responsibility Laws

As mentioned above, laws governing parental responsibility differ widely among the states, but here is a small sampling:
California: Parents can be held liable for any “willful misconduct causing injury, death or property damage” by a minor under the age of 18. Parents may also be liable for damages resulting from a child’s negligent acts while operating an automobile with the parents’ permission. The parents can be responsible for another person’s medical expenses up to $25,000. There is a similar limit for property damage.
Illinois: Parents may be responsible for a child’s willful or malicious property damage or acts causing personal injury. Parents are also liable for a child’s damage to any religious structure such as a church, synagogue, mosque or cemetery. The amount for which a parent may be liable in any single incident is $20,000.
Louisiana: Parents are liable for any damage caused by a child. There is no limit on a parent’s financial exposure.
Maine: Parents are liable only for a child’s willful or malicious damage to a person or property. A parent’s financial exposure is limited to $800, regardless of the amount of actual loss.
New Jersey: Parents may be liable for a child’s acts, but only for damage to railroads, public utilities, or school property. In those instances a parent’s financial responsibility is capped at $5,000.

Parental Liability for a Minor’s Acts While Driving a Car

A number of states have passed parental liability laws that make a parent liable for any resulting injuries and vehicle damage when a minor child causes a car accident. However, many states also have specific statutes further defining the legal liability of a parent or other adult in that situation. Those statutes are typically called “sponsorship laws.”
In those states, anyone under the age of 18 must have a “sponsor” in order to obtain a driver’s license. The sponsor is typically a parent, but may also be an employer or other adult. If, while driving a car, the minor is negligent or engages in willful misconduct, any damages resulting from the conduct can be imputed to the adult sponsor. This is true even if the sponsor had no actual control over the minor, and did not own the vehicle.
You can learn more about Vicarious Liability for Parents of Teen Drivers on our affiliated site, all-about-car-accidents.com.

What is Negligent Supervision?

 

What is Negligent Supervision?

When children walk out the door each morning to go to school, they will encounter a wide range of new situations and experiences -- everything from participating in new activities on school grounds to visiting new destinations while on field trips. Parents always hope that their children will exercise common sense and make wise decisions during the school day, but parents also know this does not always happen.

During a typical school week, children often spend more time at school during the day than they do with parents in the evenings. Since parents cannot be with their children every hour of every day, parents must rely on the experience and wisdom of others who have been entrusted with their child's care. Parents have the right to expect that their children will be adequately supervised while at school or day care facilities. Translated in a different way: schools and day care facilities have a legal obligation to make all reasonable efforts to keep children safe. But what if a child is injured in this kind of situation? How is fault for an injury established? Read on to learn more.

What is Adequate Supervision?

The definition of “adequate” supervision depends upon the circumstances. The type and level of supervision that teachers or administrative personnel might need to exercise over one student doesn’t necessarily apply to the next student. Even with a single group of children the level of supervision called for may vary throughout the week, or even a single school day. Bottom line: There is no hard-and-fast rule for what amounts to "adequate supervision" in the eyes of the law. It is a very fluid and situation-specific concept, but there are a few common factors that influence it.

Factors That Determine Adequate Supervision

The level of supervision required depends on the age of the child as well as the activity in which the child is engaged. A number of factors can be involved in determining what level of supervision is required in any given situation:

• age of the child;
• experience level of the child;
• nature of the activity; and
• factors outside the supervisor’s control.

Let's look at how these factors might apply to a given situation:

Age: A kindergarten student using scissors for an art project may require a higher degree of supervision than a middle school student.

Experience Level: A boy who has played tackle football for several years probably does not need the same level of supervision as one who is playing for the first time.

Nature of the Activity: Children reading books in a classroom may not require the same level of supervision as a group of students playing dodge ball during P.E. class.

Outside Factors: A classroom is a relatively controlled environment. However, the degrees to which outside factors are beyond the supervisor’s control vary with the environment. For example, a playground is a much more dynamic environment than the typical classroom, and a field trip may present even more threats to a child’s well-being than a playground. The levels of supervision required for each situation may vary accordingly.

It is important to note that the duty of adequate supervision doesn’t mean merely taking reasonable steps to ensure a child’s safety during a risky activity, such as sports or field trips. Schools and day care facilities also have the duty to adequately supervise the environments surrounding the children and to minimize threats to the safety and well-being of the children from any number of sources.

For example, schools and day care facilities generally have a duty to protect children from:

• harm from fellow students, such as bullying or physical assault, and
• harm from nearby adults, such as abuse and abduction.

So, schools and day care facilities have the duty to constantly monitor a child’s environment for potential threats and dangers. But the duty of adequate supervision doesn’t end with just monitoring or observing a situation. The duty also means taking all appropriate steps to eliminate any threats or dangers. Depending on the situation, the action required might be as simple as taking a ball out of a child’s hands. However, in a more extreme situation, fulfilling that duty might mean calling the police.

All of this information leads us back to the original question: What is Negligent Supervision? Simply, it is a failure to provide adequate supervision under the circumstances. The level of adequate supervision is determined by a host of different variables, as we’ve discussed above. If a school district or day care facility has failed to provide adequate supervision in a given situation, and a child suffers harm because of it, then the school district or day care facility can and should be on the legal hook for that harm.

Playground Accidents and Injuries

Playgrounds are a place of fun and excitement where children can physically challenge themselves and make new friends, but they also present risks and hidden dangers. According to the Centers for Disease Control and Prevention (CDC), each year hospital emergency rooms treat more than 200,00 children age fourteen and younger for playground-related injuries. Of those playground injuries, the vast majority occur at schools and day care facilities.
Unfortunately, injuries to children at playgrounds can often be severe. The CDC estimates that playgrounds have a higher rate for severe injuries than bicycle accidents and even automobile accidents. This is due to a number of factors. Injuries on playgrounds often occur while a child is climbing, swinging or sliding. If a child slips while climbing the fall can often be several feet or more to the ground. A slip while climbing on a jungle gym or climbing bars can often mean falling against other hard points on the apparatus. The following injuries are often seen on playgrounds:

• bruises
• broken or fractured bones
• concussions or other head injuries
• dislocations, and
• internal injuries.

Common Causes of Playground Injuries

Any number of factors can play a role in causing playground injuries, but there are some elements that are more common than others. Let's take a look at some of them.

Poor Maintenance or Design of Playground Equipment

In many areas, playground equipment can be several years, if not decades, old. Over the years significant deterioration of equipment can occur depending on the construction materials used. For example, metal components can rust or fatigue. Screws and bolts come loose. Wood rots and deteriorates. Ropes become frail. Everything from exposure to the elements to daily use by children takes a toll on the condition of equipment. Sharp edges, protruding nails or screws, or unexpectedly slippery surfaces often result from the regular use of playground equipment. Because of those factors, it is important that the playground and its equipment be regularly inspected and maintained.
Along with maintenance, proper design of the playground and its equipment is very important. For example, a regular risk inherent in any playground is that children will fall, whether from the equipment or merely while running across the ground. The presence of a soft falling surface, as with other design elements, is an important aspect of a safe playground.

Lack of Adequate Supervision

One of the most important factors in preventing playground injuries is the regular observation and supervision of the children.
At a young age, children are often unaware of their own limitations. They rarely have the necessary experience to appreciate the risks that come with running too fast or climbing too high. Because of that, adequate adult supervision is an integral part of providing children a safe environment while on the playground.
The level of supervision required depends on various factors, including the age of the children and the level of risk associated with any particular playground activity. But the failure to take reasonable steps to ensure a child's safety can give rise to a negligence claim if a child is injured as a result of inadequate supervision. Learn more: What is Negligent Supervision?

Who is Liable for Playground Injuries?

Identifying the persons or entities responsible for a child’s injury on a playground will depend on a number of factors:

Who Owns the Playground?

If the playground is at a public park, the entity responsible for its maintenance is probably the local municipality, meaning the town, the city, or even the county. The federal government typically maintains playgrounds at national parks.
Playgrounds at schools are usually owned and maintained by the public school district. (Learn more: Can I Sue the School District for My Child's Injuries?)
In the case of a private school or day care facility, typically a church or other not-for-profit entity owns the playground. A national restaurant chain or a local franchising company often owns playgrounds at restaurants. In the case of a playground injury, any of these entities might be responsible for some aspect of the playground design, construction or maintenance.

Who Designed and Built the Playground?

Playgrounds are rarely designed or constructed by the entity that ultimately owns the property on which the playground sits. Even in the case of a town or a school, the design and construction of a playground is usually contracted out to a local construction company. The construction company often hires other companies to design the playground or provide the components and materials for the equipment. Depending on the cause of a child’s injury on the playground, the actions of any of those entities might have played a role in causing the injury if the design or construction of the equipment was a factor.
Many states have passed laws setting minimum standards for playground safety, including design standards for playground equipment. The Consumer Products Safety Commission (CPSC) also offers standards for the safe design and manufacture of playgrounds and equipment. Check it out at CPSC: Playground Safety.

My Child Was Injured at School -- Who is Liable

 

My Child Was Injured at School -- Who is Liable

According to the North Carolina Department of Insurance, as well as studies completed by other states, more than 14 million child injuries occur each year throughout the country. Of these injuries, more than a quarter occur in or around school property. This statistic is not surprising, given that during the school year, children spend a far greater percentage of their waking hours in school or at school-related activities than anywhere else.
If your child has been injured while either at school or during a school-related activity, it is natural as a parent to want to know who might be responsible in the eyes of the law. The possible answers to that question are varied and depend on the particular facts and circumstances of each situation.

Was the Act Intentional or Negligent?

This is the first question that must be answered in determining who is ultimately responsible for the injury.
Intentional torts might include an instance of bullying, where a child physically harms another student. However, it can also take the form of harm inflicted by an adult, such as where an adult employee of a school abuses a student.
In the instance of bullying, the parents of the offending student may be liable for the injury depending on the circumstances of the harassment. The school may also be liable for failing to stop the harassment if it had reason to know the bullying might take place.
Similarly, if an adult employee is the offender, the school district might be liable for failing to conduct a proper background check, or failing to offer appropriate training or supervision.
Many of these same issues overlap with the area of negligence. Perhaps the injury to your child was not the result of an intentional act, but rather the result of an “accident.” If so, even accidents are often caused by some failure on the part of the school or other entity.

What Types of Acts Constitute Negligence by a School?

While children are at school, the school provides for almost all of the child's needs in much the same way as parents do. Schools are obligated to provide shelter, food, transportation, and a generally safe environment. This also means that the opportunities to come up short in providing these services are numerous.
Generally speaking, if a school fails to follow accepted standards of care in providing those services to a child, and the student is injured because of that failure, then the school is said to be negligent. (Learn more about Negligence and the Duty of Care.)
Let's look at a few examples of how these injuries can occur, and where legal liability might lie.
A school bus accident could involve:

• negligence of the bus driver/school district employee
• improper training of the driver by the school district
• a poorly designed bus or malfunctioning vehicle equipment, or
• negligence of the other driver involved in the collision.

A playground injury could stem from:

• lack of adequate supervision by a teacher, or
• defective playground equipment, resulting from improper maintenance by the school or a dangerous design by the manufacturer.

A food poisoning incident could arise from:

• improper food preparation or storage by school personnel, or
• tainted food provided by an outside vendor or manufacturer.

A slip and fall on school premises could be caused by:

• a loose handrail that was improperly maintained by the school, or improperly installed by the construction company, or
• a fall on ice or snow that resulted from the school’s failure to clear sidewalks, or a similar failure by an outside vendor such as a local landscape company.

Exposure to asbestos:

• could occur in older structures due to the school district’s failure to remove the substances or to close down the structure altogether.

Injuries from natural or man-made disasters could occur due to:

• inadequate emergency preparedness and lack of planning, and
• failure to properly carry out evacuation or shelter in place.

Injuries during sports and playtime could be caused by:

• inadequate supervision by school personnel, or
• defective equipment provided by an outside vendor or manufacturer.

Is the School Public or Private?

If your child’s school is public, it is considered a governmental entity under state law. Because of that, there are very strict procedures that you must follow if you want to bring an injury claim or a lawsuit over the incident. Those rules are usually laid down by the state legislature. (Learn more: Can a School District Be Sued for Injuries to Students?)
If your child was injured at a private school, the organization against which you would be bringing an injury claim could be a not-for-profit organization, perhaps even a local diocese or synagogue. There aren't usually any special procedural rules for bringing a claim against this kind of organization. If you believe that a private school or one of its employees is responsible for your child's injury, you can typically proceed by filing a personal injury lawsuit in your state's civil court system.

Do You Have a Personal Injury Case?

 

Do You Have a Personal Injury Case?

Should you file a personal injury lawsuit after an accident or injury, and what can you expect if you do? In this section, we offer tips on how fault is established in an injury case, figuring out how much your claim might be worth, and the best early steps you can take to help your case and protect your legal rights.

First Steps After an Accident or Injury

• Take Notes After an Accident or Injury

  Writing down the details after an accident is more accurate than relying on your memory.
• Personal Injury Accidents: Preserve Evidence

  Protect evidence in a personal injury accident and find witnesses who can help prove your claim to an insurance company.
• Getting Your Medical Records After an Injury

  Your right to obtain medical records, and tips on how to get them.
• Personal Injury Claims: Notifying Responsible Parties

  If you want to file a personal injury claim, it's important to notify potential defendants after the accident.

Who Is at Fault?

• Who's at Fault for an Accident FAQ

  Common questions and answers about negligence and fault in personal injury cases.
• Proving Fault in Personal Injury Accidents: General Rules

  Understand these general liability principles to get a sense of who is on the legal hook.
• Negligence, The 'Duty of Care, and Fault for an Accident

  Liability for an accident usually comes down to who was careful and who was careless.

Key Considerations in an Injury Claim

• Damages: How Much is a Personal Injury Case Worth?

  A look at different types of compensation available in a personal injury lawsuit.
• What is 'Pain and Suffering' in a Personal Injury Case?

  Learn about this key component of damages, and the factors that go into its calculation.
• Defenses in Personal Injury Cases

  These defense arguments can bar or limit your compensation in an injury case.
• Suing the Government: The Federal Tort Claims Act

  If you are injured by a government agency, you may be able to make a claim under the Federal Tort Claims Act.
• Finding a Personal Injury Lawyer

  Tips on finding and working with the right personal injury attorney.

Top Class Action Lawsuits

Pulp Reality at Walmart? If this is true, it has to be some kind of new low—even for Walmart. The discount retail behemoth got hit with a proposed consumer fraud class action this week, over claims its in-house brand of allegedly pure grated parmesan cheese contains a significant amount of fillers such as wood pulp. OMG.

So, in the spirit of, well, less is more—let’s cut through the filler and get to the allegations. Filed by Marc Moschetta of Dutchess County, New York, the Walmart parmesan cheese complaint states that the labels on Walmart’s Great Value brand grated parmesan cheese contains 100 percent parmesan cheese, and is false. The cheese is sold at Walmart stores across the US.

Are you sitting down? According to the suit, independent lab testing on the cheese product has shown it contains “significant quantities of adulterants and fillers” and between 7 percent to 10 percent of the cheese is made of cellulose, a filler and anti-clumping agent derived from wood pulp.

“Defendant makes only one marketing representation on the label: the product is ‘100%’ grated parmesan cheese [and] consumers, including plaintiff, reasonably rely on the label and believe defendant’s statement that the product consists of ‘100%’ parmesan cheese,” court documents state. “Because the product does in fact contain fillers and substitutes, the ‘100%’ parmesan claim is literally false and is also misleading to consumers.”

Moschetta stated that Walmart’s sale of the grated cheese was executed through deceptive marketing, labeling and advertising and the retailer has violated New York business laws, various consumer protection laws in a majority of the contiguous US, breached an implied warranty and benefited from unjust enrichment.

The complaint is seeking certification of both a nationwide class and a New York subclass of consumers and that Walmart be ordered to pay unspecified treble damages and punitive damages.

The case is Moschetta v. Wal-Mart Stores, Inc., number 7:16-cv-01377, in the U.S. District Court for the Southern District of New York. 

O Lord, won’t you Give me a Clean Diesel Car? Mercedes, seemingly the only automotive maker not be sued for defective airbags, ignition switches and/or uncontrolled acceleration—to name but a few issues among the litany of defective automotive class actions currently winding their way through the courts, found itself on the end of a consumer fraud class action lawsuit this week.

What for, you ask? Allegations the company knowingly programs its Clean Diesel vehicles to emit illegally high levels of nitrogen oxide. Specifically, the Mercedes emissions lawsuit claims that like Volkswagen defeat devices certain Mercedes models contain a device that causes the vehicles to violate US emissions standards when run at cooler temperatures, making them less environmentally friendly than advertised.

The lawsuit was filed by a Mercedes owner in Illinois, who claims the automaker uses the device in its BlueTec cars to turn off a system meant to reduce nitrogen oxide in its exhaust. The law firm representing the plaintiff said in a statement that on-road testing had shown Mercedes’s Clean Diesel cars produced average on-road NOx emissions that were 19 times above the U.S. standard, with some instantaneous readings as high as 65 times more than the US limit.

According to the complaint, the device in Mercedes’s diesel models turns off pollution controls at temperatures below 50 degrees Fahrenheit (10 Celsius), allowing the autos to violate emissions standards.

Further, according to a study done by independent testing agency TNO for the Dutch Ministry of Infrastructure and the Environment, in real-world testing, the Mercedes C-Class 220 emits more nitrogen oxide than measured in laboratory results.

“Mercedes never disclosed to consumers that Mercedes diesels with BlueTEC engines may be ‘clean’ diesels when it is warm, but are ‘dirty’ diesels when it is not,” according to the complaint. “Mercedes never disclosed that, when the temperature drops below 50 degrees, it prioritizes engine power and profits over people.”

The lawsuit also contends that even if Mercedes is able to make the cars compliant with emissions standards, those who drive them will suffer harm because the vehicles won’t perform as promised or advertised.

The plaintiff is seeking to represent a nationwide class of includes all US-based residents and entities that bought or leased an affected vehicle as of this month, and a court order compelling Mercedes to recall the affected models or replace them for free, in addition to unspecified damages.

Among the enumerated models are Mercedes’s ML320 and 350 sport utility vehicles, its E- and S-Class cars, and GLE crossovers.

The lawsuit is Lynevych v. Mercedes-Benz USA, U.S. District Court, District of New Jersey. 

 

Top Settlements

Pyrrhic Victory for Talc Powder Ovarian Cancer Victim. Here’s a stunner—in more ways than one—and it’s just the beginning for J&J. This week saw $75 million in damages awarded against the company in a lawsuit suit alleging the talcum powder Jacqueline Fox used caused her to develop ovarian cancer.

Fox claimed that for over 35 years she had used baby powder made by J&J and another talc product for feminine hygiene until she was diagnosed with ovarian cancer. She passed away at the age of 62, on October 6, 2015.

Her case was heard by a jury in St. Louis, Missouri, and is just one of more than 60 cases consolidated into a single suit alleging cancer caused by talcum powder.

During the trial, Fox’s attorney presented a document which revealed J&J knew their talcum powder was causing cancer. The letter, dated from 1997, was by a former J&J consultant and it warned the responses by the company to findings from no less than nine scientific studies could result in the talc industry being compared to the cigarette industry.

While the jury found 10-2 against J&J on claims of failure to warn, negligence and conspiracy, it did not find talc manufacturer Imerys Talc America Inc, another defendant, liable.

Another woman is scheduled to go to trial on April 11, 2016. Attorneys for Fox said that J&J is currently facing hundreds of lawsuits over talcum powder use.

Lawsuits have been filed against some talc companies alleging talc powder contains asbestos and consumers were not adequately warned about the risk of asbestos in talc powder. Although home talcum products are supposed to be asbestos-free, there are concerns some talcum products still contain asbestos. Furthermore, it can take decades for exposure to asbestos products to result in mesothelioma and other illnesses, meaning people who were exposed in the 1970s may still be diagnosed with asbestos-related illnesses.

All Because Some Bananas went Kaflooey

 

All Because Some Bananas went Kaflooey

Bananas flambé—so flambé in fact they’re the subject of a lawsuit. Well, it’s not just the bananas…

Business owners in Seekonk, PA, whose business was burnt to the ground by an allegedly overloaded and subsequently out of control truck full of Chiquita bananas that overturned, ruptured a gas line and sparked a fire that destroyed the Old Grist Mill Tavern—are suing. No surprise there. What is surprising, however, is Chiquita’s response to the lawsuit—but we’ll get to that in a minute.

According to the owners’ attorney, David Salvatore, Chiquita banana trucks have been involved in wrecks all over the country. Is it some kind of plot? No, not according to Salvatore, who cites improper loading of the produce trucks. He wants Chiquita and four other defendants to be held responsible.

“It is not accidental that banana truck accidents are a thing of legend and song,” Salvatore said, in an article by the Sun Chronicle. He was referencing Harry Chapin’s 1974 song called “30,000 Pounds of Bananas” which recants the story of an out-of-control banana truck that crashed in Scranton, PA, killing the driver. No comment.

Backing up his lyrical reference, Salvatore claims a recent crash in Freetown bears a striking resemblance to the rollover in Seekonk, which took place on June 24, 2012. He claims trucks carrying containers piled high with bananas can overturn, especially on long curves where trailers heavily loaded with fruit—they tend to tip. Any child playing with toy trucks (if children still do that), would know—you put too much in, over it goes.

The owners of the Grist Mill, Greg and Suzanne Esmay, are suing Chiquita Fresh North America and Columbia Gas of Massachusetts, along with the owner and driver of the truck and a freight company. Seems a reasonable approach to compensation for an event they really couldn’t have caused.

Oh no, not so, claims Chiquita Fresh North America. Not only have they denied any negligence and/or responsibility associated with the destruction of the Grist Mill and likely the largest bananas flambé event in that part of the world has ever seen, according to court papers, its attorneys sought to lay the blame for the fire on the Esmays.

“The sole proximate cause of the plaintiffs’ injuries and damages, if any, was their own negligence, either standing alone or combined with the negligence of others over whom Chiquita exercised no control and for whose conduct it bears no responsibility,” the company wrote in court filings. According to the Sun Chronicle, Chiquita’s statement did not elaborate on its claims. It’s mystifying logic indeed. Needless to say, mediation went sideways. (Just like the bananas.)

Greg Esmay said he’s baffled by Chiquita’s allegations. “I don’t know what we possibly could have done wrong,” he said. Quite. One minute you’re serving burgers to your patrons and the next it’s the big bang.

As for Columbia Gas, they’re keeping quiet about the whole mess, stating: “We value our business relationship with The Old Grist Mill, and are involved in a continuing effort to effect a successful resolution of the pending matter,” Columbia spokeswoman Sheila Doiron said.

I’m betting bananas are not on the menu at The (new) Old Grist Tavern.