Negligent Supervision by Parents

The Court of Appeals just published Hugenburg v. West American Ins. Co., 2004-CA-001472-MR, a case with an excellent discussion of the tort "negligent supervision." The case arose after "Mikael", a 15 year old, got drunk and wrecked a car injuring one of the passengers, Brad Fritz. Fritz's parents sued Mikael's parents, claiming negligent supervision of their son on the night of the accident. The trial court granted the Hugenburg's summary judgment on this claim.

The Hugenburg Court discussed the tort at length. "The essence of a negligent supervision claim is that the parent's failure to exercise due care made it possible and probable that the child would injure another." "Kentucky's highest court has cited, with approval, the following description of a parent's duty to supervise or control the minor child:

A parent is under a duty to exercise reasonable care so to control his minor child as to prevent it from intentionally harming others or from so conducting itself as to create an unreasonable risk of bodily harm to them, if the parent
(a) knows or has reason to know that he has the ability to control his child, and
(b) knows or should know of the necessity and opportunity for exercising such control. (emphasis added).

"The existence of a parent's duty to control a minor child largely turns on the foreseeability of the child's injurious conduct." "A duty to control the child may also arise where the child previously committed a very similar act and there are circumstances making it foreseeable that the child might later commit the specific act at issue." "Parents are not required to be prescient, however." "When determining whether a child's injurious conduct was foreseeable, the trial court should consider only those facts that the parents knew, or should have known, about before the incident at issue."

The Hugenburg Court found that "knowledge of one driving lesson with his mother, two isolated incidents of drinking, and one incident of being in an unsupervised house with peers who may have intended to drink were insufficient to render Mikael's conduct foreseeable." The Hugenburg Court specifically disagreed with the Fritz's contention that separate violations of the two "would inevitably and eventually combine, causing injury to someone."

The Hugenburg Court also found that the Fritz's had failed to present evidence of "actual ability to control of Mikael." "The duty to control one's child and prevent injurious behavior depends, in part, on the actual, physical ability to do so." "It is not negligence per se for parents to fail to monitor their teenager twenty-four hours a day when the parents are not aware of, and have no reason to be aware of, any particular risk necessitating such intensive monitoring." The mere fact that parents do not have the ability to exercise control is not, in and of itself, proof that the parents violated a duty..."

Comment: The opinion is important because it clears up many of the myths and misunderstandings of the tort, "negligent supervision." Its name implies that one need only fail to supervise another who causes harm. This is not the tort at all. The tort requires two elements to be present. In this case, parents must have knowledge or facts imparting knowledge of the likelihood of injury (foreseeability) before a duty will attach. Even then, the parents must have the opportunity to control their child at that time. The mere failure to supervise their child does not establish liability on its own. This is a very well thought out and reasoned opinion applied to the facts in this case. Hopefully, this opinion will clear confusion on this tort and dispose of "catch all" claims of "negligent supervision" in cases involving minors.