No Fault Apportioned to Washington Parent for Negligent Supervision in Child’s Personal Injury Case

The fact-finder in a Washington personal injury case must allocate fault among each of the entities that were at fault for the plaintiff’s injuries, including entities with immunity, except those immune under the workers’ compensation act.  Washington law recognizes the doctrine of parental immunity for claims of negligent supervision.  The Washington Supreme Court recently reviewed a case addressing whether a child’s compensation from the driver who struck him could be reduced due to his father’s negligent supervision of him.

In this case, the father’s girlfriend at the time struck his two-year-old child with her vehicle in the driveway of the father’s home.  A lawsuit was filed on behalf of the injured child against the father’s girlfriend.  She asserted an affirmative defense that the child’s father was fully or partially responsible for the child’s injuries, based on negligent supervision.  The plaintiff moved for summary judgment, arguing the law did not allow apportionment of fault to the father on these grounds.  The court denied summary judgment, and the plaintiff amended the complaint to add the father as a defendant. The amended complaint stated that the other defendant contended the father was concurrently negligent or engaged in willful misconduct that proximately caused the injuries.  The father did not make an appearance as a party, and the court entered a default order against him.  The jury was instructed to consider whether the plaintiff had met the burden of proving the girlfriend was negligent and had proximately caused the injuries, and whether the defendant had met her burden of proving her affirmative defense that the father was also negligent.

The jury found both the girlfriend and the father were negligent and proximately caused the injuries.  The jury attributed 50% of the damages to each of them.  The court rejected the plaintiff’s request for a joint and several judgment entered against both the father and the girlfriend for the entire amount of damages and entered only a judgment against the girlfriend for 50% of the damages.  The Court of Appeals affirmed the trial court, and the Supreme Court of Washington granted review.

The issue on review was whether a parent could be assigned fault based on negligent supervision under RCW 4.22.070 in light of the parental immunity doctrine.  RCW 4.22.070 provides that the trier of fact is to determine the percentage of total fault attributable to each entity that caused the plaintiff’s damages, except those that are immune from liability under Chapter 51, which addresses workers’ compensation.

The Washington Supreme Court found that the lower courts had failed to consider the preliminary question of whether a tort duty existed that allowed a finding of fault for negligent supervision by a parent.  The Supreme Court acknowledged that previous cases referenced “parental immunity,” but it found that case law actually established that there was no actionable tort liability or duty for negligent supervision by a parent.  It further found that when no tort exists, no fault can be apportioned under the proportionate liability statute.

The Washington Supreme Court also found that the statutory definition of “fault” supported its findings.  RCW 4.22.015.  Under the statute, an “at fault” entity is one that has breached a recognized duty through negligent or reckless conduct.  With no duty based on negligent supervision, there can be no actionable fault to apportion to the parent.

Additionally, there was no dispute that the child was fault-free, but his recovery had been reduced based on his father’s negligence.  The Washington Supreme Court found this result conflicted with the proportionate liability statute and the case law that prevents a parent’s negligence from being imputed to the child.

The majority found that parents are not liable for their child’s injuries on the ground of negligent supervision and therefore cannot be apportioned fault under RCW 4.22.070. They reversed and remanded with instructions that judgment be entered against the girlfriend for the entire amount of the child’s damages.

The dissenting opinion expressed agreement with the majority as to policy but disagreement as a matter of law.  The dissent stated the majority had changed the definition of “entity” under the proportionate liability statute, now requiring that it have “an actionable duty in tort to refrain from the particular fault alleged.” The dissent could not reconcile this definition with the statutory language that allows apportionment of fault “to entities immune from liability to the claimant.”  The dissenting justice could not identify an example of an entity that had an actionable duty and immunity from liability.  The dissent also noted that a diminished recovery did not mean that the parent’s fault was imputed to the child.

Because of this case, Washington children will not have their recoveries reduced due to their parents’ negligent supervision.  Although a finding that someone cannot be held at fault for injuries generally does not benefit the plaintiff, this case is a positive result for the plaintiff and other children who are injured in Washington.

The Washington car accident attorneys at Blair & Kim, PLLC understand Washington tort law, including parental immunity.  If your child has been injured by someone else’s negligence, call us at (206) 622-6562 to discuss your case with one of our attorneys.

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