Sinsel v. Olsen
| Decision Date | 24 December 2009 |
| Docket Number | No. S-09-003.,S-09-003. |
| Citation | 279 Neb. 38,777 N.W.2d 54 |
| Parties | Virginia SINSEL, mother and next friend of Heidi Sinsel, a minor child, appellee and cross-appellant, v. Linda OLSEN, parent and next friend of Jacob Olsen, a minor child, and Jacob Olsen, appellants and cross-appellees. |
| Court | Nebraska Supreme Court |
Betty L. Egan and Richard C. Gordon, of Walentine, O'Toole, McQuillan & Gordon, Omaha, for appellants.
Maren Lynn Chaloupka, of Chaloupka, Holyoke, Hofmeister, Snyder & Chaloupka, Scottsbluff, and Bryan S. McQuay, of Person & McQuay, for appellee.
Virginia Sinsel, mother and next friend of Heidi Sinsel, sued the appellants, Jacob Olsen, a minor, and his mother, Linda Olsen. Sinsel claimed Jacob was negligent in throwing fireworks at Heidi and injuring her. She also claimed that Olsen was negligent in failing to supervise him. The district court overruled Olsen's motion for a directed verdict regarding Sinsel's claim of negligent supervision. The jury returned separate verdict forms, awarding Sinsel $50,000 for Jacob's negligence and $75,000 for Olsen's negligence.
The issues are whether the court erred in failing to (1) find, as a matter of law, that the evidence was insufficient to show Olsen's negligent supervision and (2) instruct the jury to allocate negligence between Olsen and Jacob for Heidi's noneconomic damages.
On July 4, 2005, Jacob, who was then age 15, attended a fireworks display in Minden, Nebraska; Olsen did not accompany him. He brought his own fireworks and, at some point, threw fireworks toward a group of teenagers, injuring Heidi. Heidi was sitting in a golf cart with friends when she was struck by particles from the fireworks that Jacob had thrown. The particles burned Heidi on her chest and neck. The injury left a small scar on her chest.
To support her negligent supervision claim, Sinsel presented evidence of Jacob's behavior problems after his parents separated, his conflicts with Olsen, and Olsen's difficulty in controlling his behavior.
Jacob's parents separated in 2002, and divorced in 2004. During their separation, Olsen had custody of Jacob during the week. In January 2004, when he was age 13, the police responded to a call at a middle school basketball game because Jacob had displayed a pocketknife while engaging in name calling with students from another school. Olsen grounded Jacob for 2 weeks.
When Jacob was 14, his father cosigned on a loan so Jacob could purchase a pickup. Jacob paid for his pickup by working for his father's feedlot company. Olsen, however, did not allow Jacob to drive on his school driving permit unless she was with him because she was concerned that he would not drive safely or would drive to places other than school. But in August 2004, Jacob drove his pickup to school and had an accident in the parking lot. The other driver claimed that Jacob backed his pickup into her vehicle; he denied it. According to Jacob, the other vehicle had a scratched bumper and the police could not determine that he had backed his pickup into the other vehicle.
Olsen admitted that Jacob had been a rebellious teenager and made bad decisions. She and Jacob had had arguments over his behavior problems, some of which had become physical. In October 2004, Olsen confronted Jacob about driving his pickup to a place she had told him not to go, but he had left while she was still at work. When Olsen tried to take his keys away, he pushed or shoved her, causing her to fall and hit the back of her head. She got up and slapped him. Jacob went to his father's house, and his father called the police.
Later, in May 2005, one of Jacob's teachers wrote on his progress report that his behavior and attitude needed monitoring. Also, a teacher had previously told Olsen during a parent conference that Jacob had behavior problems. Olsen testified that she tried to monitor Jacob closely to make him behave, do his homework, and be at home. Jacob stated that Olsen made him do many chores.
Jacob testified that Olsen occasionally permitted him to go out alone. About a week before Heidi was injured, Olsen allowed Jacob to go out unsupervised for an hour or two. During this time, someone reported to the police that Jacob, while a passenger in another minor's vehicle, was throwing fireworks out the window into a residential yard. A police officer issued him a warning but did not contact Olsen. Olsen was not aware that Jacob had obtained fireworks or that he had thrown them into a residential yard until the night of July 4, 2005—when officers came to her house to tell her Heidi had been burned.
Before trial, the court sustained Sinsel's motion for partial summary judgment, finding that Jacob was negligent as a matter of law. It overruled Olsen and Jacob's motions for summary judgment. The court did not instruct the jury to allocate negligence between Olsen and Jacob. On separate verdict forms, the jury returned an award for Sinsel against Jacob for $50,000 and against Olsen for $75,000.
Olsen and Jacob assign, restated, that the court erred in overruling their motion for directed verdict on the negligent supervision claim, failing to properly instruct the jury on the allocation of negligence, and entering judgment on an excessive verdict.
On cross-appeal, Sinsel assigns that the court erred in assessing prejudgment interest using the rate in effect on the day of the judgment.
A directed verdict is proper at the close of all the evidence only when reasonable minds cannot differ and can draw but one conclusion from the evidence, that is, when an issue should be decided as a matter of law.1
Whether a jury instruction is correct is a question of law, which we independently decide.2
Under the Restatement (Second) of Torts,3 the parent-child relationship is a special relationship that can require parents in some circumstances to control the conduct of their child.
Section 315 of the Restatement provides:
There is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless
(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person's conduct, or
(b) a special relation exists between the actor and the other which gives to the other a right to protection.4
The parent-child relation is a special relationship under § 315(a).5 Section 316 of the Restatement provides:
A parent is under a duty to exercise reasonable care so to control his minor child as to prevent it from intentionally harming others or from so conducting itself as to create an unreasonable risk of bodily harm to them, if the parent
(a) knows or has reason to know that he has the ability to control his child, and
(b) knows or should know of the necessity and opportunity for exercising such control.6
Relying on these provisions, we concluded in Popple v. Rose,7 that a parent can have a duty to warn third persons of their child's past conduct to protect them from harm in limited situations. But we recognized that parents are not liable for failing to control their children's conduct to prevent injury to others in the same way owners are responsible for harboring a vicious animal. And we specifically stated that courts have "refused to impose liability in situations where the child was generally incorrigible, heedless, or vicious."8 We held that parents can be liable for failing to exercise reasonable care to prevent injury to others only when their child has a dangerous habit of causing harm to others and the parents know of the child's "habitual, dangerous propensity."9 In contrast, parents are not liable for negligent supervision where the record lacks any evidence indicating the parents were aware the child was prone to commit the particular act or course of conduct which led to the plaintiff's injury.10
In Popple, the evidence showed that the parents knew their son had a history of physically violent behavior. But they did not know he had a habitual propensity to commit a sexual assault or sexual abuse. We concluded that the parents had no duty to warn of an unknown dangerous sexual propensity. This reasoning tracks the comments to the Restatement's § 316 and decisions from other jurisdictions.
Comment a. to § 316 provides that parents are responsible for their child's conduct if they have the ability to control it.11 But comment b. clarifies that
[t]he duty of a parent is only to exercise such ability to control his child as he in fact has at the time when he has the opportunity to exercise it and knows the necessity of so doing. The parent is not under a duty so to discipline his child as to make it amenable to parental control when its exercise becomes necessary to the safety of others.12
So parents who have the ability to restrain or correct their child have a duty to do so when their child's conduct is posing an obvious danger to others in their presence. And we recognize that some courts have held that parents can be liable for failing to take steps to correct or restrain a child's conduct when they know the child has a dangerous habit that is likely to cause injury to others.
For instance, in Popple,13 we discussed a case in which the father knew his 7-year-old child habitually struck other children in the face with a stick but had encouraged, rather than restrained, this behavior, thus condoning the act.14 We discussed another case in which the court held that the parents could be liable for failing to warn a babysitter that their 4-year-old child had a habit of violently attacking and throwing himself against other people.15 But we...
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