The Parent Trap: When Your House Leaves You Liable
by Neil S. Siskind, Esq.
Parents have an inherent dilemma. On the one hand, they are disciplinarians and protectors- on the other, they want their kids to have fun and to be their best friends. Some parents are overbearing in carrying out the former duties, while others are too hands-off in the latter. Finding the right balance between parental supervision and necessary freedoms is one of many challenges parents face. In searching for that balance, parents must remember that they have parental duties to their children, but also legal duties to the public at large. Years ago, in a less litigious society, parents did not have the level of legal risk that could result from their parental decisions that exists today. Social expectations of parental supervision and oversight, combined with a litigious society, means parents need to be cautious, aware and responsible when it comes to the behavior they allow in their homes and on their property.
Some parents relish that their house is the place where all the neighborhood kids come to play. It makes for an enthusiastic environment and is a safe way to watch over their own children’s welfare. But this also increases the risk of an injury occurring in their houses for which they could be held responsible. While they are trying to be helpful parents who allow the kids to play in their home, they are also the ones taking on risk. Generally, homeowners have a duty to provide a safe environment to invited guests and warn them of known or knowable dangers. Taken in its broadest sense, that is an awesome responsibility, particularly when small children are involved. For example, a child and his or her friends may regularly play in a parent’s basement where an exposed pipe could present a hazard under the proper circumstances. If the children are fooling around and one child trips and hits his head on the exposed pipe, it could present a legal problem for the homeowner if the child is seriously hurt. Likewise, the outside perimeter of a home may be fraught with hazards- exposed sprinkler heads, maintenance equipment such as ladders, saws and lawnmowers left lying around, and chemicals like turpentine, paint and bug spray set in unlocked cabinets. If any of these are the cause of harm to a child, it could unfortunately lead to liability to the homeowner if it can be shown that the condition was dangerous and the homeowner knew or should have known of the danger. So when your home is the neighborhood playground- be careful.
Teenaged children may provide their own set of risks. While the friends visiting the home are older than with small children and thus more alert, attentive to risks, and not as easily injured, the homeowner’s duty to warn of known and knowable dangers to visitors is still the same (in fact, this required warning applies to any visitors to a home, including service people and a homeowner’s own adult friends). The major issue that arises with teenagers is drinking or drug use by a teenager or a teenager’s friends in the home. Should a teenager get injured on someone’s property, or cause an injury to another when leaving that property, such as by driving a vehicle under the influence, or wandering into traffic, there could be liability against the homeowner where the intoxication took place. The homeowner could potentially be sued by the intoxicated teenager (if it’s not their own) and any injured third party. While the homeowner’s action may not have been the cause of the accident, under various legal theories, such as negligent supervision, the parent homeowner may be legally exposed. It all depends on the facts, the state law involved, and the skill of the attorneys involved. Even if a parent-homeowner prevails in a civil case, he or she could have enormous legal expenses. If homeowners insurance covers legal expenses, those rates could skyrocket or the insurance could be lost. If the homeowner does lose such a case, the amount of insurance may not be enough to cover the settlement or verdict amount. Of course, if it is shown that the parent-homeowner knew, should have known, consented to or assisted in underage drinking, that presents a whole other host of issues including criminal liability, void insurance policies, and a greater likelihood of civil liability for negligence than if they were not present or aware.
While many houses may present a risk of harm or two to visitors, generally only the obvious risks, the ones that were known or knowable, are the ones that present legal exposure. If a homeowner knew or should have known about a danger and failed to warn about it, that could lead to liability for resulting harm. Special risks may exist to children, the elderly and the handicapped that need to be accounted for. Something that may not be a danger to adults may be a danger to children.
As an attorney, I suggest that if a homeowner intends to have regular play space for other people’s small children, that they perform a survey of dangerous conditions inside and outside of the home and describe the conditions to the children and their parents- with a non-family member witness present. I recommend that such homeowners clean up any unsafe equipment and lock up any chemicals and liquor cabinets. As for teenaged children, parents should ensure that no liquor or drugs are ever consumed on the property. There are legal expectations that a home and teenagers on the property are properly supervised to some degree, particularly with regard to alcohol and drugs. If parents are going out of town but leaving teenaged children at home, they should ask a neighbor to watch their house, lock up the liquor cabinet and makes sure teenagers have adult supervision at least periodically. They are not yet adults and need oversight. Of course they can’t be watched all of the time- but homeowners must ensure that the home is not used as a substitute for the local brewery or drug-den when they are away. That is their duty as a homeowner and as a parent.
