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Leach v. Metropolitan Government of Nashville and Davidson County11/15/2002
must be considered in light of its particular set of circumstances.
However, when children are accompanied by their parents or other adults, the degree of care diminishes because it is only reasonable for a prudent person to assume, in the absence of any indication to the contrary, that the parent or other person will guard against a childish impulse and give immediate warning of any sudden change in position which might place the child in peril.
In Tetterton v. Foggie, 172 S.E.2d 369 (S.C. 1970), children were playing along the street when a ball crossed from one side of the street to the other. One of the children crossed the street to retrieve the ball. Upon seeing the children at play, the driver of the car slowed his vehicle and began honking his horn. At this time, the mother of the children held their hands and walked them back to the house. Before arriving at the house, one of her children jerked loose from her grip and darted into the path of the automobile. The court held that the evidence showed that the driver was observing the rules of the road with respect to speed, control, and maintaining a proper lookout while driving in his proper traffic lane. Further, it stated that:
he saw the minor . . . was in a place of safety and at the time was being held by an adult and it was only when he preceded to pass the area where the children were that the minor jerked loose from the adult . . . and darted into the path of the automobile . . . . It is our conclusion that the [Driver] exercised due care in the operation of his automobile with respect to the minor who was under adult supervision at the time of the accident.
The South Carolina Supreme Court then held that:
When a child, who is under adult restraint, breaks away from such adult and darts into the path of a motorist who is observing the rules of the road with respect to speed, control, and who is maintaining a proper lookout, the resulting injury to said minor is not actionable. See also Korbelik v. Johnson, 227 N.W.2d 21, 25 (Neb. 1975) (noting the distinction between the duty of care owed to a child when unaccompanied by an adult and a child who is accompanied by an adult); Sneed v. Satcher, 597 So.2d 1070, 1076 (La. Ct. App. 1992).
We find that the evidence preponderates against the judgment which is reversed and the suit of the plaintiff is dismissed at her costs. The issue of comparative fault is pretermitted.
PER CURIUM
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