What if the other side blames the parent for the child's injury?

Posted Tuesday, November 08, 2016 by Ed Harper

What if the other side blames the parent for the child’s injury?

Washington Pattern Instruction 11.04 states the following: “Negligence, if any, of a parent is not imputed or charged to his or her child.” WPI 11.04.This jury instruction illuminates a problem in this country, allowing a child to recover for his or her damages if their parent was potentially partially at-fault. In the early to mid-1800’s, judges would typically bar a child’s claim due to their injury being due to any allegation of parental irresponsibility and under the legal theory of what is called imputed contributed negligence. This occurred whenever there was potential evidence from which a jury might conclude that a parent was guilty of negligence that proximately contributed to the child’s injury.
However, around the turn of the last century (1900) courts here in the State of Washington have protected claims of children by preventing a defendant from arguing “well, it really was the parents fault for not watching their child” and thus avoiding liability.

A brief review of when this arises may be helpful. Imputed is derived from the Latin term “imputare” which means to charge with. Or in other words, to impute means to lay the responsibility or blame on another. A defendant would have been able to argue the parent’s negligence was the cause of the injury, thus precluding a possible claim of injury for the youngster. If for example, while in a restaurant, a scalding hot coffee was spilled on a child when the child (a toddler for example) pulled the full cup of coffee on themselves, the court would have disallowed the child’s claim from going forward if the defendant raised the parent’s failure to adequately watch and protect their child. The restaurant, even though their server had placed the coffee allegedly too close to the toddler, would get off scot-free if they could prove even 1% of fault lay with the parents.

Additionally, another case points out why this precedent was overturned. In Gregg v. King County, 80 Wash. 196 (1914) a young boy, age 6 went with his older brother to the docks in Juanita on the shore of Lake Washington. He went on the dock, waiting for the ferry with the evening paper from Seattle to arrive. Their mother had sent them on this errand because she was not feeling well. As the boys waited, sitting on the dock, the younger boy’s hand and arm were smashed when the ferry boat arrived and slammed into the support pilings for the dock. King County, the owner of the dock, argued the child’s parents were partially at fault for their failure to supervise the young boy. The court said no. You can’t blame parental supervision, or lack thereof for this injury. It was foreseeable that children would be on the public dock. An example of this foreseeability was aided by the fact that a confectioner store (candy store) was adjacent to the ferry terminal.

The court articulated the true negligence in this case was the poor design of the ferry dock and the responsibility for the boy’s injury fell on the County. “…no act of negligence on the part of the parents of the child, whether of omission or commission, could prevent a recovery by the child, if, under the evidence and other instructions, the jury was of the opinion that the defendant was liable for the injuries sustained by the child; that the rights of the parties must be judged without regard to acts of negligence on the part of the child’s parents.” Gregg, at 203.

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