Written by Helen Jhun, Esq.
Edited by Bill Pfund, Esq.
As the weather warms, schools across Virginia recess for summer. Families throughout the state look forward to a few months of rest, relaxation, and recreation. Along with the fun that comes with recreational activities, there are also specific risks when participating in these activities, especially when children are involved. This article will address some of specific issues that arise in defending these types of claims.
Contributory Negligence and Assumption of Risk for Minors
Under Virginia law, the defenses of contributory negligence and assumption of risk are complete bars to recovery. However, the considerations differ when the plaintiff is a child.
A child under seven years of age is incapable of being contributorily negligent. Atlantic C.L.C. Co. v. Clements , 184 Va. 656, 664-665, 36 S.E. 553, 557 (1946). A child between 7 and 14 is presumed to be incapable of negligence. However, this is a rebuttable presumption, and such a child can be contributorily negligent upon evidence that 1) the child had the capacity to understand the nature and perils associated with his conduct based upon his age, intelligence and experience and that 2) the child’s conduct did not conform to the standard of a reasonable person of the same age, intelligence and experience. Va. Elec. & Power Co. v. Dungee 258 Va. 235, 520 S.E.,2d 164 (1999). A child between the ages of fourteen and eighteen is held to the degree of care which persons of the same age, experience, intelligence, discretion and knowledge would exercise under the circumstances. Carson v. LeBlanc, 245 Va. 135, 427 S.E.2d 189 (1993).
The defense of assumption of the risk is closely related to contributory negligence. However, there are important differences in the two defenses. Unlike contributory negligence, which is measured by an objective standard, assumption of the risk is measured by a subjective standard. The essence of assumption of risk is venturousness, while the essence of contributory negligence is carelessness. The doctrine of assumption of risk requires showing: (1) that the nature and extent of the risk are fully appreciated; and (2) that the risk is voluntarily incurred. Power Co. v. Dungee 258 Va. 235, 520 S.E.,2d 164. When applying the standards associated with assumption of the risk to children, the Court uses the same age standards as in contributory negligence. Smith v. Kauffman, 212 Va. 181, 183 S.E.2d 190. In defending claims brought by children, the burden will be on the defendant to prove the elements of contributory negligence and assumption of risk. Power Co. v. Dungee 258 Va. 235, 520 S.E.2d 164.
Parental Liability
Another important issue that often comes up is the liability of the parents. Under well-established Virginia law, parental negligence is not imputable to the child. American Tobacco Co. v. Harrison, 181 Va. 800, 27 S.E. 2d 181. This means that if a child is injured, and the negligence of the parent contributed to the child’s injury, the parent’s negligence will not bar recovery to the child against a third party.
Furthermore, the Virginia Supreme Court has explicitly declined to recognize negligent parental supervision as a cause of action in tort. In the cases of Thompson v. Skate Am. Inc., et.al. 261 Va. 121, 540 S.E.2d 123 (2001) and Bell v. Hudgins, 232 Va. 491, 352 S.E.2d 332 (1989), Supreme Court specifically declined to establish a blanket rule that would impose civil liability upon parents for the tortious acts of their children.
However, in a 2014 Supreme Court case, the Supreme Court did note that “Virginia recognizes that a parent has a general duty to supervise and care for a child’s safety.” Lasley v. Hylton 288 Va. 419, 764 S.E.2d 88, citing Chapman v. City of Virginia Beach, 252 Va. 186, 475 S.E.2d 798 (1996). In the Chapman case, the Supreme Court stated that a “parent has a duty to exercise ordinary care for the child’s safety, City of Danville v. Howard, 156 Va. 32, 36, 157 S.E. 733, 735 (1931), but this duty does not impose an absolute requirement that a parent oversee and guide a child’s activities every moment.”
Finally, under current Virginia law, the courts do recognize intra-family immunity, which bars a suit brought by a child against his parent except for specific exceptions, including motor vehicle accidents, master/servant contractual cases, wrongful death, and willful and intentional torts.
Therefore, whether a parent can be held liable for injuries caused by his child or for the injuries suffered by his child will depend on the facts of the case and what duties were breached.
Amusement Parks and Recreational Facilities
When evaluating the liability of the owner and/or business that provides recreational services open to the public, the duties differ depending on the type of facility.
There is a recreational use immunity statute, which applies when a landowner allows the public to use his land for recreational use, without charging a fee. Under Va. Code 29.1-509, a landowner shall “owe no duty of care to keep land or premises safe for entry or use by others for hunting, fishing, trapping, camping, participation in water sports, boating, hiking, rock climbing, sightseeing, hand gliding, skydiving, horseback riding, foxhunting, racing, bicycle riding or collecting, gathering, cutting or removing firewood, for any other recreational use.” Furthermore, “no landowner shall be required to give any warning of hazardous conditions or uses of, structures on, or activities on such land or premises to any person entering on the land or premises for such purposes.” To be applicable: (1) the person must come upon the land to hunt, swim, trap, camp, hike, or sightsee; and (2) no consideration must have been paid by the user to the landowner. Hamilton v.United States, 371 F. Supp. 230 (E.D. Va. 1974). This immunity does not apply to businesses who charge for use of recreational facilities.
As with any premises liability case, the owner of a business who invites the public onto its premises for profit must exercise ordinary care for the safety of its patrons. In the cases of amusement parks and recreational facilities, the business must make reasonable provisions to guard against those accidents which common knowledge and experience teach are likely to befall those engaged in that activity. Phillips v. Southeast 4-H Educational Center, et.al. 257 Va 209, 510 S.E.2d 458 (1999).
In the case of Rucker v. Paramount Parks, the US District Court for the Eastern District of Virginia, while interpreting Virginia law, specifically held that amusement parks are required to keep their premises in reasonably safe conditions commensurate with the business conducted. Specifically, an amusement park owed a degree of care that would be expected of an ordinarily careful and prudent company in its position and only had to conform to actual industry practices or reasonable consumer expectations.
In evaluating liability, it is important to understand the specific known risks associated with that activity and what the industry standards are.
Releases and Waivers
Often businesses who offer recreational services rely upon liability releases and waivers. However, it has long been established in Virginia that such waivers are void and against public policy. In Hiett v. Lake Barcroft Community Ass’n, Inc., the Virginia Supreme Court ruled that language that purported to “release and forever discharge any and all rights and claims for damages” was void as against policy that extended from 100 years of Virginia precedent establishing that “provisions for release from liability for personal injury which may be caused by future acts of negligence are prohibited ‘universally.'” 244 Va. 191, 418 S.E.2d 894, 895 (1992). (quoting Johnson’s Adm’x v. Richmond & D. R. Co., 86 Va. 975, 11 S.E. 829 (1890)). Furthermore, a contractual waiver will not apply if the signatory is under 18 and does not have the capacity to enter into an enforceable contract.
It is important to note that there is a statutory exception to this law for horse riding. Under the Equine Activity Statutes, the Virginia legislature has specifically set forth that a participant or parent/guardian who has knowingly executed a waiver agrees to assume all risks specifically enumerated risks that are intrinsic to horse riding. Virginia Code 3.2-6200-$3.2-6203.
Although a Release and Waiver cannot discharge liability, evidence that a plaintiff signed a release and waiver may be introduced as evidence that a plaintiff may have had knowledge of specific dangers or risks. Manchanda v. Hayes Worldwide, LLC, 142 F. Supp. 3d 465 (Alexandria, 2015). However, signing a release is not dispositive and conclusive that an individual has expressly assumed the risk. The question of fact will still be on the subjective question of whether the Plaintiff knew and understood the nature of the risks.