Appeals Court Rules That Law Places Responsibility On Parents
From hotel quality pools, to monster play-sets, to the ubiquitous trampoline and fun houses, backyard activities are all the rage these days. But what happens when a guest or young one is injured in your backyard play space? Can you be held liable for negligence and personal injuries? Or are the parents responsible for the actions of their own children? A recent court ruling considered these issues.
LaForce v. Dykeman, Mass. Appeals Court Sept. 9, 2019
Earlier this month, the Massachusetts Appeals Court considered a case where a 6 year old boy fell off a backyard zip-line and sustained a very serious fractured arm. The little boy was a guest of the homeowners. The zip-line was of the classic variety with the line attached to two trees, and a hand trolley used to traverse the line. The little boy was helped onto the hand trolley by his father, who held him for the first few yards, then (as we fathers tend to do), let him go, saying “You’re on your own, buddy!” Unfortunately, mid-way down the line, the child fell off the trolley and broke his arm in several places, requiring multiple surgeries.
Parental Responsibility Remains the Rule of Law
The child’s father sued the homeowners, whose insurance policy covered the loss, claiming that the zip-line should have had a seat apparatus which was recommended by the manufacturer. The Appeals Court, in an opinion written by Justice Gregory Massing, held that the law puts responsibility on the boy’s father, not the homeowner, to ensure that his kid is safe on the zip-line. The father argued that a duty of care was owned not to him, but to his young son, who is too young to assess the dangerousness of the zip-line without a seat component. Justice Massing, using a dose of common sense, saw otherwise, commenting that “Aaron [the boy] used the zip line with his father’s assistance and under his father’s supervision. Any duty to warn would be owed to Aaron’s father, who was expected to keep his son safe, had the opportunity to prevent his son from using the zip line, and placed his son in the position that led to his injury. And because the danger was open and obvious to Aaron’s father, the defendants had no duty to warn him.” The end result is that the homeowners are off the hook for liability.
An Insurance Agent’s View
I asked my friend and insurance company owner, Carlos Vargas of Vargas and Vargas Insurance about the take-away’s from this case. He stated that “insurance companies do get nervous with “attractive nuisances,” and that’s why it is important to review your policy. If your neighbor’s kid gets hurt using the trampoline and mom and dad sue you then your policy would afford coverage or at least the cost of legal cost to defend you. Insurance is designed to provide you coverage, however, it is a legal contact and you want to honest with your agent on what is happening on your property. A phrase we like to use is that “You are paying for coverage, don’t risk it by not answering questions honestly.” Carriers are loosening the guidelines for certain liability scenarios. Go back 10 years ago, you couldn’t find a company to insure you if you had a German Shepherd. Today we have 3 markets that will accept the breed. Same goes with trampolines, we have some carriers that are okay with the trampoline in the backyard and they are not restricting the liability.”
Rich’s View
I have mixed feelings about this case. I just googled “backyard zip-lines” and they all have seats or safety harnesses. The older ones were definitely not the safest contraptions around. On the other hand, this child was only 6 years old and obviously didn’t have the upper arm strength to stay on the trolley for the entire length of the line. That’s on the father. It’s a tough case for the court. But accidents do happen, and not every accident is a result of someone else’s negligence.
That said, this case simply underscores why you want to have a good property insurance policy in place. Here, the insurance company paid for all the legal fees for the homeowner. (This case was originally filed in 2016). Also, and especially if you have a zip-line, trampoline or pool, you definitely want to get yourself an umbrella excess policy in case you get sued for something catastrophic. If you need insurance guidance, click Carlos’ link above!
