Inability to control child dooms negligent supervision claim

When a parent’s negligent supervision of a child results in someone being hurt, the injured party has a cause of action against the parent.

The big qualifier of this proposition of law is that the parent has the ability to control the child in the first place. American States Ins. Co. v. Albin, 118 Mich. App. 201 (1982).

Our story: Plaintiff broke a window of defendant’s home. Somehow, one of defendant’s dogs was let out of the house. Plaintiff hit the dog with a club. Defendant’s son grabbed a baseball bat from the house and hit plaintiff in the head. The resulting fractures, bleeding and hearing loss cost plaintiff her job and put her on disability.

Plaintiff sued defendant for negligently supervising her son. Defendant’s winning defense was a profound inability to keep her son in check.

Defendant weighed 100 pounds, had cancer and a heart condition that prevented her from working.

Her 17-year-old son weighed 300 pounds. Police reports established that he had assaulted his mother and other family members several times in the past.

The Court of Appeals affirmed the trial court’s dismissal of plaintiff’s suit.

Considering the substantial differential in size between defendant and her son and his past assaultive conduct toward her, we agree with the trial court that there is no genuine issue of material fact that defendant lacked the ability to physically control her son so as to prevent him from assaulting plaintiff, regardless of her awareness of his propensity for assaultive conduct.

Well, plaintiff argued, defendant could have taken other, nonphysical measures to control her son, such as calling 911 or hiding the baseball bat.

Although we agree that the applicable law does not limit the requisite “control” to the ability of a parent to physically restrain his or her child to prevent potential harm or injury, the altercation in this case was not reasonably foreseeable, and thus defendant could not have known of the necessity and opportunity to exercise control over her son’s conduct by taking the precautionary measures cited by plaintiff.

The COA opined that plaintiff’s best argument was that defendant had not medicated her son on the day of the incident. However, plaintiff offered her lay opinion only, and defendant insisted that she gave her son his medication on the day in question.

The unpublished case is Rollinson v. Beresowskyj.

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