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Kids! Let me discuss on liability before you go on that Play Date!!


My five-year-old goes for play dates all the time. Sometimes she is playing in the backyard of my neighbor, while sometimes I drive her to one of her friend’s house. Sometimes I just leave her unattended, in the care and custody of my neighbor, while most of the times I will stay with her at her friend’s place till she is done playing. But I never thought about liability in a God forbid scenario where she gets injured while on a play date. Or for that matter, one of her friends get injured while on a play date at my place. Have you? At the end of the day:


Parents cannot ensure that a child is safe from every peril. All parents can do is inform and instruct, shelter and sustain: see Ibrahim v. McLenahan, [1996].


But whatever it is, I would be sad, and I am sure most of us would be, if we start thinking about liability before sending our children on those play dates. Correct? However, this recent case heard by the Ontario Superior Court of Justice has made me ponder.


In Lever et. al. v. Katerberg, 2019, the liability of parents was discussed, dealing with both sides of the coin i.e. liability of the parents of the injured child was questioned, as well as liability of the owners of the house was discussed, where the child got inured while playing with the owners’ children during a normal community play date.


The facts of the case are as under:


BACKGROUND


In 2004, children from three families living closely in a community used to play together at each other’s house. Two of those families were the Levers (Plaintiff’s family) and the Katerbergs (Defendant’s family). The children would often go to the neighboring yards of the other family to play.


AGE GROUPS


The group of older children included the ones who were five years and older, requiring minimal supervision, and then there was a younger group of children who were four years or younger.


INCIDENT


On one of the evenings in May 2004, five-year-old Bronwen Lever was playing with other children in the neighboring yard of Katerbergs. Unfortunately, she sustained significant injuries when she was run over by a lawnmower operated by Mr. Katerberg, who knew she was playing in his yard at the time.


ACTION


The Levers sued Mr. Katerberg, who then counterclaimed against the Levers (Both Parents).


POSITION OF THE PARTIES


Levers

Mr. Katerberg should be held 100% liable as the incident occurred in his premises and Mr. Katerberg was aware that the children are playing in the lawn when he started mowing the same.


Katerberg

Though Mr. Katerberg admits that he is at least partially liable, he states that Levers should share in the liability as parents should not leave children unattended.


SUMMARY JUDGMENT MOTION


The Levers moved for summary judgment on the issue of liability. They allege 100% liability against Mr. Katerberg and request dismissal of the counter claim.


ISSUES


Main Action

Liability of Mr. Katerberg under the Occupier’s Liability Act.


Counterclaim

Liability of Levers as parents of the Injured Child [Bronwen].


ANALYSIS


Liability of Mr. Katerberg under the Occupier’s Liability Act.


Mr. Katerberg was the owner and occupier of the property at the material time where the incident occurred. The duty of care towards the injured child applied whether the danger was caused by the condition of the property or activity carried out on the property.


A few facts such as he was the one driving the lawnmower, did give two warnings to children to stay away from the mower, however did not direct them to leave the yard or go to a specific restricted area, did not ask his wife to supervise the children, did not consider that having his five year old son on the back of the mower would entice the other children to get closer may be looked into by the trier of facts to decide upon liability.


Liability of Levers as parents of the Injured Child [Bronwen].


Although Levers believed that the Katerbergs would take full responsibility for their child when she was playing in their yard, the families never formally or informally discussed this belief. “This is not a case where a parent left Bronwen in the Katerbergs’ care with a clear and direct understanding that the Katerbergs would take care of her”.


The counterclaim against both parents of the injured child alleged that they were negligent in their duty to their own child in failing to protect her from harm, in failing to supervise and take reasonable steps to prevent injury to her while she was playing on the Katerberg’s property, did not warn her about dangers and/or provide instructions regarding safe behaviour around the machinery being operated in the yard.


A stranger would render himself liable in negligence only if he had on a particular occasion assumed or accepted the care and charge of the child. It seems to me, however, that parents are in a somewhat different position, and at all times while present are under a legal duty to exercise reasonable care to protect their child from foreseeable dangers. I do not consider that a parent while present is ever able to shed responsibility for the child’s safety though on the facts it may appear that he was not negligent by reason of his preoccupation with other things. It has been accepted that a person who, as a parent, has control of a child is responsible for negligence in the exercise of that control if injury results to another. [see Arnold v. Teno, 1978, SCC]


Dismissing the action against the father, Braid, J. stated:


Although Bronwen’s father knew that his children were playing in the Katerberg’s yard, he did not know that a riding lawnmower was in use.


Further:


There is no evidence that the accepted standard of care by parents in the immediate community required a parent be present at every moment to supervise their children. Bronwen’s father could not possibly have a duty to directly supervise Bronwen when he was at work and when out running errands.


However, liability analysis with respect to the mother, who was at home on the day of the incident and saw Mr. katerberg driving a lawnmower is to be decided upon trial.


THOUGHTS


It’s unfortunate and very sad that friendly neighbors had to sue each other and a five-year old got significantly injured. But this case does make one ponder: Should one ever leave his/her child(ren) unattended on a play date or should one always be supervising his/her child(ren)? Also, should one be blunt in discussing the duty of care upfront with the parents and who will be responsible for injuries? Should one now think twice before inviting children on play dates?

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