Myers v. City of West Plains – Lack of Parental Supervision as Bar to Damage Recovery

An 11-year-old boy who suffered serious and permanent damage to his knee after falling on glass shards that littered a local park is entitled to $425,000 in damages, affirmed a Missouri appellate court recently.
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The fact that the child’s mother was not present at the park to supervise at the time of the incident did play a role in reducing the park’s liability from 100 percent to 85 percent. However, despite the city’s objection, appellate court ruled trial court properly gave an instruction to jurors on the matter of lacking parental supervision as a “stray issue” that should not greatly sway the outcome of the case.

Both sides in Myers v. City of West Plains had agreed prior to trial the lack of supervision hadn’t played a significant role in the fall, and likely would not have prevented it from happening. Yet, during the voir dire process of vetting jurors, many said they would be prejudiced in finding a city liable for injury to an unsupervised child. Thus, the court gave an instruction to jurors regarding how such information should be weighted.

Jurors issued a verdict favoring plaintiff, which defendant city then appealed on grounds that instruction was improper. But the appellate court disagreed and affirmed.

The issue of parental supervision in injury cases involving children is of greater critical importance in North Carolina than in many other states because North Carolina follows a pure contributory negligence model. This means a plaintiff may not recover damages if his or her negligence proximately caused the injury (per Smith v. Fiber Controls Corp.). That means there is a higher burden of proof on plaintiffs to show a lack of parental supervision was not a significant factor in child injury.

In this case, the boy was reportedly playing at a nearby park with his older sister. Many witnesses testified the park was considered safe and children often gathered there to play, sometimes without parents. Several jurors during voir dire indicated they would “lean toward the city” if the child’s parent was not with him at the time of injury. However, jurors were asked to be impartial on this issue and give it fair weight – i.e., the lack of supervision by mother did not necessarily absolve the city of its duty of care to the child or other members of the public.

At the time of injury, the boy was walking across the park carrying a puppy when he tripped over a tree root. In an effort to protect the puppy in the fall, he fell on his knees. The area where he fell was covered in chunks of broken glass, on which his knee was severely lacerated. He suffered permanent injury as a result. He required surgeries and must wear a leg brace.

Numerous witnesses testified the glass shards had been present on the site for at least six weeks. Park officials indicated they inspected the park weekly and sometimes daily, and that such a hazard would have been noticed by employees. (However, one worker noted that if the glass was present for that long and not addressed, “That would mean someone wasn’t doing their job.”)

Trial court ultimately gave a withdrawal instruction on the matter of supervision, finding the evidence might raise a false issue. Jurors decided the case in favor of the boy, imputing 15 percent comparative fault to the boy on the basis of his mother’s lack of supervision.

On appeal, city argued the withdrawal instruction was improper. However, the Missouri Court of Appeals for the Southern District rejected this argument and affirmed.

Again, lack of parental supervision may play a role in determining whether a defendant is liable, but it’s important for an experienced attorney to carefully examine to what extent that factor may have proximately contributed to the child’s injury.

Contact our North Carolina personal injury lawyers at Lee Law Offices today by calling 800-887-1965.

Additional Resources:
Myers v. City of West Plains, Jan. 27, 2015, Missouri Court of Appeals, Southern District, Division Two

More Blog Entries:
Carolina Residents Injured by Faulty Exercise Equipment, Jan. 30, 2015, Asheville Injury Lawyer Blog

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