July 29, 2019

A Cup of Joe | Babysitter Hit By Child With Golf Club Sues Child’s Parents For Injuries

This week’s case takes us to Garden City, Long Island, where Telly Savalas was born (1929). Telly is best known for his role as a tough, New York City detective in the 1970s television series, Kojak. As children, Telly and his brother, Gus, sold newspapers and shined shoes to help support the family. In 1941, he joined the army and served in World War II, from which he was discharged with a Purple Heart disability. After his release, Telly attended the Armed Forces Institute where he studied radio and television production. He went on to enroll at Columbia University.

But we don’t need an Ivy League-educated, television detective to figure out this case.

Enter: Joanna, the babysitter; James Drew Golden, the father; Elizabeth Golden, the mother; and Darla, the Golden’s 7-year old daughter.

It is Spring in Garden City, now an affluent village of around 22,600 residents. Joanna is babysitting Darla and her brother. The three of them are outside the house. James is inside; Elizabeth Golden is out shopping. While the children were playing golf in the yard, Darla hit Joanna in the face with a club. Joanna sued James and Elizabeth Golden.

Testimony of Joanna

Q: When did the accident happen?

A: It was a weekend in May. It was a beautiful day.

Q: And you were watching the children outside?

A: Yes. They were playing in the yard and then they went into the garage. They were in there for no more than a few minutes.

Q: What happened when they came out of the garage?

A: They were each holding a golf club and balls. They were playing with the clubs in the yard.

Q: What do you mean by “playing?”

A: Well, they were swinging at the golf balls.

Q: How long were they playing?

A: I would say 15 minutes.

Q: And what happened after 15 minutes.

A: It was getting warm so I was going toward the house to get the children drinks. As I was walking away from the children, Darla called out to me to watch her hit the ball. As I turned to look, Darla hit me in the face with the golf club.

Testimony of Darla

Q: Darla, can you tell us about the accident with Joanna?

A: Yes. I told Joanna to watch me hit the ball. I turned around and put my eyes on the ball, like you are supposed to. I went to swing but the club hit Joanna.

Q: She was standing in in front of you?

A: No. She was behind me. I didn’t see her. I hit her by accident. I didn’t know Joanna was behind me.

Are Darla’s Parents Responsible For Joanna’s Injury?

A parent is not responsible for the acts of their child. But, parents will be held responsible for the failure to use reasonable care for giving the child (or leave hanging around so that they can get to it), a dangerous  instrument.

Here are some examples where the parent was on the hook:

– a father entrusting a motorcycle to his child, who is blind in one eye and had impaired vision in the other eye;

– parents allowing a 13-year-old child to operate an ATV at a construction site;

– a parent allowing a 14-year-old child to light a gas grill even though the parent knew that the child was unfamiliar with the grill, followed by the parent walking away because she was "afraid something might happen";

– a parent permitting a 17-year-old to use a chainsaw; and,

– a parent allowing a 12-year-old child to operate a "motorized bicycle."

In all those cases, the Court considered the nature of the instrument, the age, intelligence, and disposition of the child; and their prior experience with the instrument, to determine that the parent created an unreasonable risk of harm to others. Reasonable care means that degree of care which a reasonably prudent parent would use under the same circumstances.

Court’s Ruling

Here, Joanna’s claim regarding negligent supervision is undermined by the fact that Joanna herself was retained for the very purpose of supervising the children she claims were not properly supervised. Similarly, Joanna acknowledges allowing the children to play with golf clubs under her supervision for at least fifteen minutes without issue or objection. It was Joanna who had a duty to supervise and was the only individual with custody and control of the children at the time of the accident.

As such, it cannot be said that the parents’ conduct created a foreseeable danger to the public at large.

Joanna gets nothing. Case dismissed. "Who loves ya, baby?"

Here is the case: https://www.law.com/newyorklawjournal/almID/1563871271NY60163018/?download=D5ID072519sumtfeinman.pdf

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