DISCUSSION

I. Ms. McCall may have a negligent supervision claim for the injury caused to her son.

In Ohio, parents, under common law, are not generally held liable for the harmful acts of

their child. Huston v. Konieczny (1990), 52 Ohio St.3d 214, 217, 556 N.E.2d 505. Citing Elms v.

Flick (1919), 100 Ohio St. 186, 126 N.E. 66. However, there have been exceptions to the rule.

Under the claim of negligent supervision, parental liability has been proven by addressing a

combination of these three elements: 1) the foreseeability of the child’s wrongful act, 2)

knowledge of the parent regarding their child’s prior conduct, and 3) the control the parent may

have over the actions of the child. Id.

The role of these elements and their application to establish a negligent supervision claim

will be discussed in the order listed above.

A. Synthia Williams should have foreseen the harmful behavior of her son,

Michael.

The ability of a parent to foresee potentially harmful actions of the child can best be

illustrated in Huston v. Konieczny (1990), 52 Ohio St.3d 214, 217, 556 N.E.2d 505. In Huston,

the parents were held liable when their two, underage sons held a drinking party at their home.

The parents, themselves, admitted that their children, “probably would have some beer.” One

partygoer, while driving home, struck a tree injuring a passenger in his car. The passenger

consequently filed suit against the driver as well as the parents in whose home the party took

place. The court concluded, among other things, that “the parents knew or should have known

that their children would furnish alcohol to underage guests.” The court reversed the verdict of

the trial court in favor of the injured passenger, holding that the parents were indeed liable for the
passenger’s injuries, and that “liability can attach when the injury committed by the child is the

foreseeable consequence of a parent’s negligent act.” Huston citing Kuhns v. Brugger (Pa.1957,

135 A.2d 395, 404 fn. 14.

The question of foreseeablity and the parent’s role in liability is further expounded on in

Herzebereg. The father in this case was not found liable when his child chased and squirted the

plaintiff with a water gun, causing her injury when she slipped and fell. In order to successfully

prove a negligence claim the plaintiff had to show that there was an existence of a duty by the

defendant, that this duty was breached, and that the injury was a proximate cause of the breach of

duty. Id *3. The court further reasoned that in order for this duty to exist there had to be a degree

of foreseeability that the injury might occur. Id *4. Since the father in Herzberg could not

reasonably foresee the harm that was to occur, he was, therefore, not liable for the injuries

caused by his son.

Furthermore, in Nearor v. Davis, the element of foreseeability is more delineated as to

what constitutes foreseeability and what other factors should be shown in order to claim

negligence. In Nearor, the minor obtained his parents’ firearm and used it to shoot and kill his

friend. The court found the parents of the minor not negligent on the basis that, “To establish

foreseeability of the act or injury [pursuant to negligent supervision], plaintiff must prove that

specific instances of prior conduct were sufficient to put a reasonable person on notice that the

act complained of was likely to occur.” Haefele v. Phillips. In this case there was no prior

conduct that reasonably allowed the parents to foresee any injury. Id *813. The minor, who

caused the injury, had a small history of delinquency but nothing that could adequately be

deemed violent, and nothing that was sufficient to bring a claim of negligent supervision using

foreseeability as the primary argument. Id. *814.

the defendant, and that the duty was breached by the parent’s failure to reasonable foresee the

harmful actions of their child. The general usage of the term foreseeability is defined by the

courts as a situation where the parents should have known of the child’s intent to cause harm

given the situation, and if it could be reasonably foreseen, from the actions of the child, that the

injury would probably occur.

Whether there was a duty on behalf of Ms. Williams in keeping children within her home

from harm is already a pre-existing condition. In Herzeberg, the father was not held liable

because he could not have reasonably foreseen of the injury his son would cause with a water

gun. Ms. Williams, on the other hand, knew of the explicit dangers of the chemistry set in the

unsupervised care of her son which she expressed when after the incident, she said, “I told you,

you aren’t allowed to play with that without Dad or me in the room! Didn’t I tell you that?”

This statement indicates that Ms. Williams knew how dangerous the chemistry set could be and

that her son was only allowed access to it under his parents’ supervision. In both Nearor and

Huston, a negligent supervision claim stemmed from what the parents should have known and

what they could reasonably foresee. Again, from Ms. Williams’ remarks to her son after the

incident, clearly denotes that she knew of the risks involved in leaving her son unsupervised and

with a dangerous instrument.

Again, because Ms. Williams could reasonably foresee that her son’s action with a

dangerous instrument could cause harm, it can be shown that there was a breach of duty on her

part and that a degree of foreseeability was established.

B. Synthia Williams should have foreseen the harm caused by her son from her

son’s prior conduct.

establish foreseeability as is the case if Herzberg, “To establish foreseeability of the act or injury

[appellant] must prove specific instances of prior conduct were sufficient to put a reasonable

person on notice that the act complained of was likely to occur.” Id *5 citing Haefele. The

appellant in this case was unable to provide evidence that the child had any prior conduct that

would indicate harmful behavior and thus was unable to recover damages for the injury. The

court noted that though there were prior incidences of disruptive behavior on behalf of the child,

it was not to a degree that should put a reasonable person on notice to any potential injurious

behavior. Id. *5. There was no evidence that the child had threatened and chased someone with

a water gun previous to the situation that caused the injury to the plaintiff, and thus the court

reasoned that there was no prior notice and the father was not negligent in supervising his son.

Id. *5.

Likewise in Nearor, the court found that the parents were not negligent based on the

combination that there was no prior conduct of the child that would have sufficiently alerted the

parents to his violent behavior, and as a result they could not have foreseen the injury their son

would cause. Id *814. In fact, the parents testified that they knew only that their child had no

history of behavioral problems and did not seem to have a penchant for violence. They did not

know, however, that their son had, prior to the incident, taken their firearm out from their bed to

show his friends. This was enough for the court to decide, that without prior notice of their

child’s conduct, the parents could not have possibly known, and therefore could not be found

negligent in their supervision. Id *814.

Similarly, the connection between parental liability and the element of foreseeability as it

pertains to their child’s prior conduct, is addressed in D’Amico v. Burns. Here the court ruled
that as a matter of law, a cause of action cannot be brought against a child under the age of 7 for

his/her intentional torts. However, when a child, with a prior history of destructive behavior,

causes property damage, the owner of the property may bring a negligence claim against the

child’s parents. The child in this case removed a protective sewer grate on the plaintiff’s

property and threw harmful debris down the sewer causing damage to the plaintiff’s sewer lines.

The plaintiff referred to previous incident where the child had attempted to remove the sewer

cover, but had been stopped in time by the plaintiff, who then notified the parents of the child’s

delinquent behavior. Id. 327. The plaintiff further argued that, as a result of this prior conduct,

the parents should have known that the child had the ability to cause damage to his property. Id.

327. The court agreed with the plaintiff and remanded the case back to trial court to determine

if, indeed, there was negligence on part of the parents. Id. **1019.

So, a parent may be negligible if the plaintiff can produce evidence of the child’s prior

conduct. However, the plaintiff must also prove that this conduct is of the type and of the degree

that should put a parent on notice of the child’s harmful tendencies.

Ms. McCall provided in her interview incidences where Ms. Williams’ son, Michael,

displayed prior tendencies of violent behavior. One incident involved Michael pushing a child to

the ground causing an injury that required stitches, while another incident had Michael throwing

a toy truck that struck another child in the head. As in D’Amico, where the parents knew that the

child was capable and interested in removing the sewer cover from his previous behavior, Ms.

Williams had prior knowledge of her son’s capabilities and penchant for harmful acts towards

other children. The plaintiffs in both Nearor and Herzberg were unable to provide history or

examples of conduct by the defendants’ children that would make the injury foreseen, and thus

were unable to successfully bring a claim a negligent supervision on the parents of the child.
 A court is unlikely to hold a parent negligent if there is no previous evidence of the

child’s harmful tendencies. The conduct of the child must be of a type and of a severity that

would alert the parents to a child’s reckless behavior and put the parent on notice.

C.