Washington Case Law Update: Parent’s Negligent Supervision not Tortious, Cannot Reduce Child’s Recovery

Attorney Profile Case Update Template -2016 Kyle

Washington Case Update: Parent’s Negligent Supervision not Tortious, Cannot Reduce Child’s Recovery

From the desk of Kyle D. Riley: Washington’s comparative fault scheme permits apportioning fault among all entities who bear a portion of fault, including those that are immune from liability to the claimant.  When a child is injured due in part to the negligent supervision of a parent, how does the doctrine of parental immunity interact with the comparative fault scheme?  Read on to learn more.

Claims Pointer: In this case arising out of a child’s accidental injury, the Washington Supreme Court held that because a parent cannot be liable for a child’s injuries based on a theory of negligent supervision, there is no fault to be apportioned to the parent under Washington’s comparative fault scheme.  The case establishes that parents whose negligent supervision caused a child’s injury are not immune from fault under the doctrine of parental immunity; rather, their conduct is simply not tortious, so there is no fault to be apportioned.  This is an important consideration in all claims involving a child’s injury that was caused in part by a parent’s negligent supervision.

Smelser v. Paul, No. 9307-6-7, Washington Supreme Court (July 6, 2017)

When Derrick Smelser (“Derrick”) was two years old, he was playing in his father’s driveway while his father’s then-girlfriend, Jeanne Paul (“Paul”), was visiting.  Paul’s truck was parked in the driveway.  When she started to drive away, she hit Derrick and pulled him under the vehicle, dragging him for some distance and causing severe injuries.  Derrick’s older brother, Dillon Smelser (“Dillon”), witnessed the accident, and when the boys’ father, Ronald Smelser (“Ronald”), heard Dillon screaming, he looked in that direction and saw Derrick under Paul’s truck.

Derrick’s guardian brought suit on behalf of Derrick against Paul, alleging negligence.  Paul admitted the basic...

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