PRESENT: All the Justices
TABITHA LASLEY, A MINOR, OPINION BY BY JUANITA LASLEY, HER NEXT FRIEND, JUSTICE WILLIAM C. MIMS ET AL. October 31, 2014
v. Record No. 132048
DANIEL HYLTON
FROM THE CIRCUIT COURT OF BOTETOURT COUNTY Larry B. Kirksey, Judge
In this appeal, we consider the legal duty that a host owes
to a child social guest when the child's parent is present and
supervising the child.
I. BACKGROUND AND MATERIAL PROCEEDINGS BELOW
Over Labor Day weekend of 2008, Daniel Hylton ("Hylton")
hosted a cookout for friends and neighbors at his property in
Botetourt County, Virginia. Among his guests were Gene Moseley
("Moseley") and his two daughters, eight-year old Tabitha Lasley
("Tabitha") and twelve-year old Casey Lasley ("Casey").
Although Hylton and Moseley were well-acquainted, Hylton had
never met Tabitha or Casey.
When they arrived, Casey and Tabitha saw a teenage boy
riding a green all-terrain vehicle ("ATV"). Neither girl had
ridden an ATV before. With Moseley's permission, Tabitha
accepted a ride on the back of the green ATV. Thereafter,
either Hylton asked Casey if she would like to drive an ATV, or
Casey asked Hylton for permission to do so. Hylton owned two ATVs — the green ATV and a smaller, red
ATV. Prominent safety warnings were stickered to the seat and
body of the red ATV, including one that read: "NEVER permit
children under age 12 to operate this ATV." The owner's manual
contained additional warnings, including one that stated: "The
minimum recommended age for this ATV model is 12. Children
under age 12 should never operate an ATV with engine size 70cc
or greater." The red ATV had an engine size of approximately
86cc. Despite these warnings, Hylton routinely permitted
neighborhood children to drive the red ATV provided they
received permission from their parents and wore a helmet and
shoes.
Hylton and Moseley set Casey up on the red ATV. Hylton
explained the controls; then Casey drove across the property.
While watching her older sister, eight-year old Tabitha asked
Hylton if she could drive the ATV as well. Hylton told her that
she had to get her father's permission first. When Tabitha
asked Moseley for permission to drive the red ATV, he agreed.
Moseley called Casey back so that Tabitha could take a turn.
Casey had difficulty bringing the ATV to a stop and actually
struck Moseley in the process.
Tabitha put on the helmet with help from another adult, and
Moseley helped Tabitha onto the ATV. As the engine was running,
Hylton explained where the gas pedal, clutch, and brakes were
2 located. Then Tabitha accelerated, reaching an estimated speed
of five to ten miles per hour. Almost immediately, she lost
control and began to swerve. Moseley yelled for Tabitha to
stop, but before she could do so, she tipped the ATV and was
thrown to the ground. Tabitha sustained multiple injuries,
including a fractured shoulder.
Tabitha, by her mother, Juanita Lasley, and Juanita Lasley
in her own right (collectively "Lasley"), filed an amended
complaint in the Circuit Court of Botetourt County. The
complaint alleged that Hylton had been negligent and grossly
negligent by allowing and assisting Tabitha to operate the ATV,
failing to advise Moseley and Tabitha of the warnings displayed
on the ATV, and failing to heed those warnings.
At trial, Hylton testified that he relied on Moseley, as
Tabitha's parent, to decide whether she could safely drive the
ATV. Moseley never asked Hylton, and Hylton never agreed, to
supervise the girls. In fact, Moseley was present and assisted
both girls while they rode. Hylton also testified that he knew
Tabitha was about eight years old and that he never asked
whether she had driven an ATV before. Hylton acknowledged that
he never discussed the warnings displayed on the ATV or the
risks of driving an ATV with Moseley or Tabitha.
At the conclusion of Lasley's case, Hylton moved to strike
the evidence. The circuit court, relying on Ingle v.
3 Clinchfield Railroad Co., 169 Va. 131, 192 S.E. 782 (1937),
granted Hylton's motion and entered judgment in his favor. 1 The
court reasoned that in the absence of evidence of a special
relationship or evidence that Hylton assumed a duty to supervise
Tabitha, he had no duty to Tabitha that could support a finding
of negligence:
It is clear that Tabitha Lasley was under the supervision of her father at the time this took place and that's not disputed. It is clear that the Defendant inquired of the supervising parent with regard to the activity that was requested. It is clear and not disputed that the supervising parent gave his permission. I think it's clear under Virginia [l]aw that if a child is supervised by a parent and that the parent sees no peril in the child's activity, that it would be demanding too much of the Defendant to foresee the peril in the situation.
Lasley assigns error to the circuit court's ruling that
Hylton, as a matter of law, did not have a duty to prevent
Tabitha from riding the ATV. Lasley also assigns error to the
circuit court's reliance on Ingle, asserting that it is
distinguishable on its facts.
II. DISCUSSION
A. The General Duty of a Host to Social Guests
We review the trial court's rulings de novo, as "[t]he
issue whether a legal duty in tort exists is a pure question of
1 The circuit court did not make a separate finding regarding whether the facts supported a claim for gross negligence, apparently concluding that only simple negligence was implicated.
4 law." Kellermann v. McDonough, 278 Va. 478, 487, 684 S.E.2d
786, 790 (2009).
As an initial matter, the parties do not dispute that
Tabitha and her family were Hylton's social guests at the
cookout. Virginia law imposes a duty upon a host to conduct his
or her activities with reasonable care under the circumstances.
Bradshaw v. Minter, 206 Va. 450, 453, 143 S.E.2d 827, 829
(1965). Bradshaw is instructive though distinguishable, as
explained in Part II.D.
In Bradshaw, the host permitted his guest to ride one of
his horses, which he knew was "spirited" and "liked to run."
Id. at 451-52, 143 S.E.2d at 828. He had no knowledge of his
guest's riding experience, and he failed to adequately disclose
the horse's propensities to her. Almost immediately, the horse
threw the guest to the ground, causing her injuries. Id. This
Court held that "[w]here the activities of the host are
involved, the test should be one of reasonable care under the
circumstances." Id. at 453, 143 S.E.2d at 829. However, a host
is not subject to liability if the guest knew or should have
known of the host's activities and any accompanying risk. Id.
Consequently, as a general rule a host has a duty to social
guests for his or her activities. But when the risk is open and
obvious, as Hylton asserts in the present case, the host is not
liable. See Smith v. Lamar, 212 Va. 820, 823, 188 S.E.2d 72, 74
5 (1972) (quoting Perlin v. Chappell, 198 Va. 861, 864, 96 S.E.2d
805, 808 (1957)) ("'Reasonable care' or 'ordinary care' is a
relative term, and varies with the nature and character of the
situation to which it is applied. . . . The test is that degree
of care which an ordinary prudent person would exercise under
the same or similar circumstances to avoid injury to another.'")
B. The Host's Specific Duty to a Child Who Is Supervised by a Parent
Before we reach the question of whether the ATV constituted
an open and obvious risk, the facts of this case present an
issue of first impression for this Court. We have never
articulated the duty that a host owes to a child social guest
when the parent is present and supervising.
The parties do not dispute that Tabitha's father, Moseley,
was present and supervising her activities. Lasley urges us to
find that this fact is irrelevant, arguing that Moseley's
presence did not circumscribe Hylton's duty to Tabitha to
conduct his activities with reasonable care. In effect, Lasley
argues that Hylton had an absolute duty to prohibit Tabitha from
driving the ATV or at least to discuss the danger with Moseley
before she did. We disagree.
In Ingle, the Court held that the operators of a train had
no legal duty to a child accompanied by, and under the
supervision of, her mother. 169 Va. at 139-40, 192 S.E. at 785-
6 86. In that case, a mother and her three children were walking
along a path parallel to, and approximately four feet from, the
end of the rail ties underlying the tracks. The path was in the
railroad company's right-of-way, and pedestrians made sufficient
use of it to charge the company with notice of its use.
Consequently, the Court concluded that the mother and her
children were the railroad's licensees. The evidence showed
that the daughter was walking about 150 feet in front of her
mother; the mother heard the train approaching; and the mother
called to the daughter to stop. Inexplicably, the daughter
stepped onto the ties and was struck by the train. Id. at 134-
37, 192 S.E. at 783-84.
The Court noted that cases holding that train operators
"must take notice of an unattended small child on the right of
way and anticipate that from childish impulses it may run in
front of the train" were inapposite, because the daughter "was
attended by her mother." Id. at 139, 192 S.E. at 785. The
Court reasoned that if the mother "saw no peril in taking them
down the pathway which was four feet from the end of the ties,
it would be demanding too much of the railroad company to
require that it should have . . . foreseen peril in the
situation." Id. at 140, 192 S.E. 785-86.
Ingle alone does not control the outcome of this case
though, for reasons asserted by Lasley on brief: Hylton's
7 "active and direct commission of negligence . . . placed Tabitha
in peril." Under the rule in Bradshaw, Hylton had a duty to his
guests to exercise reasonable care while carrying on his
activities. Consequently, we must determine under what
circumstances a host is liable for harm to a child social guest,
when that harm is attributable to his alleged active negligence
and the child's parent is present and supervising.
C. Case Law from Other States
Virginia recognizes that a parent has a general duty to
supervise and care for a child's safety though, as noted, we
have yet to reconcile it with the duties of a social host. See
Chapman v. City of Virginia Beach, 252 Va. 186, 193, 475 S.E.2d
798, 803 (1996) ("A parent has a duty to exercise ordinary care
for the child's safety . . . ."). Although this is a question of
first impression in Virginia, other courts have considered it
and ruled that the parent's duty is superior to the duty of a
social host when the parent is supervising and knows or should
know of an obvious danger.
Two decisions that are particularly instructive, due to
their factual similarity with the present case, are Vares v.
Vares, 571 S.E.2d 612 (N.C. Ct. App. 2002) and Kay v. Ludwick,
230 N.E.2d 494 (Ill. App. Ct. 1967). In Vares, the host invited
his extended family to his home for a regular family gathering,
known as "Farm Day," during which the family members performed
8 various chores intended to maintain the fifty-acre property.
Vares was assigned the task of cutting down a tree. Initially,
he permitted his son to help clear some brush. Then, Vares
directed his son to stand back before he and two other men
felled the tree. Nonetheless, the child moved into the path of
the falling tree, which struck and injured him. Vares, 571
S.E.2d at 614.
The court began by noting that a landowner has a general
"duty to exercise ordinary care for the protection of one of
tender years, after his presence in a dangerous situation is or
should have been known." Id. at 616 (citations and internal
quotation marks omitted). However, the court also noted that
this duty does not apply when "the minor child is being actively
supervised by a parent who has full knowledge of the condition
of the premises and appreciation of the danger thereby
presented." Id. Because Vares was present and supervising the
child when he was injured, the court concluded that the duty of
care "belonged to Vares" and not to the host. Id.
In Kay, a four-year old girl and her mother were guests at
Ludwick's home. During their visit, Ludwick permitted someone
to mow her lawn with a "riding-type rotary power mower" as the
child played outside. The child attempted to climb onto the
rear of the mower, and her foot fell into the path of the blade,
which severed her heel. The mother and child alleged that
9 Ludwick was negligent in permitting the mower to be operated
while the child played outside, failing to warn the child, and
failing to supervise or protect the child. Kay, 230 N.E.2d at
496. The court rejected their arguments, concluding that "[t]he
primary responsibility for the safety of this minor child rested
with its mother" who was present and apparently supervising the
child. Id. at 497. The court noted that the mother "observed
no apparent harm in permitting her child to play in the yard
while the mower was in operation" and to require more from the
host would be to impose "a duty superior to the one the parent
here owed to the child." Id. at 497-98.
D. The ATV Presented Open and Obvious Risks
The fact that Moseley was present and actively supervising
Tabitha is not in dispute. The evidence adduced at trial also
demonstrated that the danger to Tabitha was open and obvious.
Moseley therefore knew or should have known of the risk of
injury.
In Bradshaw, the guest had no way of knowing about the
horse's "spirit" or propensity to run unless the host disclosed
those risks. 206 Va. at 452, 143 S.E.2d at 828. Consequently,
the Court concluded that it was for the jury to determine
whether the host was negligent in permitting the guest to ride
without informing her of the horse's characteristics. Id. at
455, 143 S.E.2d at 830.
10 Here, however, Moseley had ample opportunity to observe the
variety of warnings clearly affixed to the ATV. There were four
warnings on the ATV itself: one on the visible, top side of the
left-front wheel well; one on the visible, top side of the
right-front wheel well; one on the visible, top side of the
left-rear wheel well; and one on the passenger seat. One
explicitly warned against allowing children under 12 to operate
the ATV. Furthermore, Moseley witnessed firsthand that his
twelve-year old daughter had difficulty controlling the ATV, as
she struck him while attempting to stop. Moseley had every
right and opportunity to refuse to give eight-year old Tabitha
permission to ride the ATV. He had every reason to know of the
risks involved.
The prominently displayed warnings, which were pertinent to
the very circumstances that increased the likelihood of
Tabitha's injury, distinguish this case from those where we have
held that the question of whether a danger is open and obvious
is for the jury. See, e.g., Volpe v. City of Lexington, 281 Va.
630, 638-39, 708 S.E.2d 824, 828 (2011) (holding that a jury
should decide whether an artificial "hydraulic" created by a
low-head dam was open and obvious). Where the danger is open
and obvious, the law places the "primary duty to inform, advise,
and protect a child" on the child's parents. Washabaugh v.
11 Northern Va. Construction Co., 187 Va. 767, 773, 48 S.E.2d 276,
279 (1948).
Lasley, relying on Evans v. Evans, 280 Va. 76, 695 S.E.2d
173 (2010), contends that a rule subordinating a host's duty
under these circumstances effectively imputes the negligence of
the parent to the child. Her reliance on Evans is unavailing,
since that case merely states a narrow exception to the intra-
family immunity rule, whereby a child has the right to recover
from a negligent parent for a motor vehicle accident. See id. at
78 n.1, 695 S.E.2d at 174 n.1. Whether an ATV could be
considered a motor vehicle is a question that is not presented
in this case. 2
Finally, we note that this rule is consistent with social
norms. When a person invites neighbors, friends, or family to
his or her home, that person does not expect to stand in loco
parentis to child guests that accompany their parents. Rather,
that person justifiably should expect his or her guests to
exercise the same care and responsibility towards their children
as they would in their own home. An invitation to a social
2 Further, this rule does not mean that a host does not owe a duty to a child social guest. If it is reasonably foreseeable that the parent will not or cannot realize the risks involved with a host's activity, then the host's duty would remain to conduct activities with reasonable care for the benefit of child social guests. Similarly, if the host is supervising the child, then the host would also have such a duty.
12 event is not an invitation to relinquish parental
responsibility.
III. CONCLUSION
For the reasons stated, we confirm that a host owes a child
social guest a legal duty to exercise reasonable care for the
child's safety. We also conclude that Hylton satisfied this
duty when he ensured that Tabitha was being supervised by
Moseley and had his permission to ride the ATV.
We hold that if a child's parent is present and
supervising, and knows or should know of open and obvious risks
associated with an activity, a host does not breach the duty of
reasonable care when he or she allows the child to participate
in an activity with the parent's permission. Therefore, we
affirm the judgment of the circuit court. 3
Affirmed.
JUSTICE McCLANAHAN, with whom JUSTICE LEMONS and JUSTICE GOODWYN join, concurring.
Today, the Court in RGR, LLC v. Settle, ___ Va. ___, ___
S.E.2d ___ (2014)(this day decided), espouses a general maxim of
legal duty owed by possessors of property to the entire world.
3 Below Hylton raised the recreational use immunity statute, Code § 29.1-509, as a defense. Lasley argued on brief that the statute did not apply to the facts of this case. However, since the circuit court did not rule on the argument below, we do not consider it.
13 However, in this case in which Lasley requests application of a
general maxim as the legal duty and expressly disavows reliance
on a specific duty owed by possessors of land to social guests,
the majority ignores the general maxim and fails to explain why
it does not apply in this case. Instead it creates a new
specific duty for possessors of land. Although I believe it
worthwhile to note this inconsistent application and adoption of
new legal theories, fortunately, it is not necessary for me to
address it in resolving this matter because I would affirm the
circuit court's judgment for different reasons.
Lasley did not assert that Hylton violated the duty owed by
a host to a social guest. Lasley’s claim was unrelated to
Tabitha’s status as a social guest on Hylton's premises.
Instead, Lasley contended that Hylton violated a general duty
not to injure Tabitha. See RGR, ___ Va. at ___, ___ S.E.2d at
___ (every person has a duty of ordinary care in the use and
maintenance of their property to prevent injury or death to
others). Because Lasley failed to assert the breach of any duty
owed by Hylton to Tabitha recognized under our tort law prior to
the RGR decision, I would hold that the circuit court did not
err in granting Hylton's motion to strike.
In the circuit court, Lasley asserted that Hylton breached
two separate duties to Tabitha. First, citing Kellermann v.
14 McDonough, 278 Va. 478, 684 S.E.2d 786 (2009), Lasley claimed
that the duty of parental supervision shifted from Mosely to
Hylton such that Hylton became responsible for Tabitha's care.
Second, Lasley contended that even if the duty of supervision
did not shift to Hylton, Hylton owed an independent duty to use
ordinary care not to harm another person. Lasley maintained,
prior to trial, that her cause of action was not based on the
duty owed by Hylton to a social guest on his premises. 1
At trial, Hylton moved to strike Lasley's evidence on the
grounds that the evidence did not establish Hylton owed a duty
to Tabitha absent a shifting of the parental duty of supervision
or the existence of a relationship between Hylton and Tabitha.
In response, Lasley argued that Hylton "did in fact take on that
supervisory role," but if the court found he did not "assume
1 In fact, Lasley's original complaint, as well as her first amended complaint, included a count against Hylton based on his status as property owner and host, in which she alleged that Hylton owed duties to his social guests to have his premises in a reasonably safe condition for his guests' use, to warn his social guests of unsafe conditions about which he knew or should have known, and to use ordinary care not to injure his social guests by his affirmative negligence. After Hylton filed a demurrer based, in part, on the recreational use immunity statute, Code § 29.1-509, Lasley responded that "[t]he facts on whose land this incident took place [are] irrelevant to [Lasley's] case and the allegations contained in the Complaint," and "[t]his incident could have occurred at a park, on a public road, school yard, or in the neighbor's front yard, and [Lasley's] basic causes of action would be nearly identical." Thereafter, Lasley filed her second amended complaint in which she did not include the count against Hylton based on his duty to social guests.
15 that responsibility, there is an independent duty on his part
not to do anything to contribute to putting someone else in
danger." According to Lasley, her claim was based on Hylton's
"failure to comply with his duty to use ordinary care to protect
her." Thus, in responding to the motion to strike, Lasley did
not assert a duty owed by Hylton to social guests on his
premises. 2
On appeal, Lasley has continued to renounce any reliance on
a theory of negligence based on Hylton's relationship to Tabitha
as a social guest on his premises. Specifically, on brief,
Lasley maintains that her cause of action does not pertain to
her status as a social guest on Hylton's premises.
Additionally, Lasley has abandoned her claim based on a
violation of the duty to supervise Tabitha. She argues only
that Hylton owed "a general duty not to injure others
negligently." In distinguishing Ingle v. Clinchfield Railroad
Co., 169 Va. 131, 192 S.E. 782 (1937), Lasley asserts that
Tabitha's "status as a licensee or invitee is irrelevant" to her
claim. Furthermore, arguing that the recreational use immunity
statute is not applicable, Lasley states that her claim does not
concern the ownership or use of land because "[t]his ATV wreck
2 Lasley also did not assert a duty based on a theory of negligent entrustment. See, e.g., Kingrey v. Hill, 245 Va. 76, 78, 425 S.E.2d 798, 799 (1993).
16 could have occurred on a road, at a park, on a public road,
school yard, or in the neighbor's front yard, and [Lasley's]
causes of action would be identical." 3
At oral argument, Lasley expressly disavowed reliance on
the relationship between Hylton and Tabitha as host and social
guest as the basis for the duty supporting her claim. Indeed,
when pressed to acknowledge this relationship, Lasley answered
that her claim did not have anything to do with the ownership of
the land or the duty owed to a licensee or invitee, but was
based entirely on Hylton's ownership of the ATV and his action
in allowing her to ride it.
Despite Lasley's repeated assertions that her claim is not
based on the duty owed by Hylton to a social guest on his
premises, the majority undertakes to specifically determine what
duty a host owes to a child social guest on his land when the
child's parent is present and supervising. The majority begins
its analysis with Bradshaw v. Minter, 206 Va. 450, 143 S.E.2d
827 (1965), in which the Court discussed the duty owed by a
landowner to a licensee, which includes a social guest, on the
owner's premises. While the Court in Bradshaw reiterated that a
possessor of land generally owes no duty to a social guest to
3 The recreational use immunity statute applies not only to conditions on the premises but to activities upon the premises as well. Code § 29.1-509(B).
17 keep the premises in a reasonably safe condition, the Court
recognized a duty of reasonable care where the guest is injured
by the landowner's affirmative negligence. Id. at 452-53, 143
S.E.2d at 828-29. The majority adopts this theory as the basis
for Lasley's claim, and in doing so, addresses a claim Lasley
has not in fact asserted. 4
In sum, I would hold the circuit court did not err in
granting Hylton's motion to strike because Lasley failed to
assert any duty owed to Tabitha recognized under Virginia tort
law. 5 In the circuit court and in this Court, Lasley has
asserted that her claim is based on a general duty not to injure
others negligently without specifying a specific duty arising
out of Lasley's relationship with Tabitha, either as her host or
otherwise. Therefore, the majority has addressed a claim that
Lasley has not asserted and, indeed, has expressly disavowed.
In my view, the Court should await the arrival of a case in
which the appellant actually asserts the breach of a duty owed
by a landowner to a child social guest on the premises to define
4 As noted previously, in her original and first amended complaints, Lasley asserted a claim based on her status as social guest on Hylton's premises and alleged Hylton owed a duty to use ordinary care not to injure his social guests by his affirmative negligence. However, she did not include this claim in her second amended complaint. 5 Although Lasley asserted her claim was based in part on the duty of supervision, which the circuit court ruled was not supported by the evidence, she has not asserted this duty on appeal.
18 the scope of the duty. See Commonwealth v. Harley, 256 Va. 216,
219-20, 504 S.E.2d 852, 854 (1998).
For these reasons I concur only in the Court's judgment,
affirming the circuit court's dismissal of the claim in this
case.