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Chapman v. City of Virginia Beach9/13/1996
eated the nuisance count, we conclude that a finding of negligence is one of the two alternative prerequisites required to impose liability on a city in a nuisance cause of action. Cities can be held liable for damages resulting from a nuisance only if the condition claimed to be a nuisance was not authorized by law or the act creating or maintaining the nuisance was negligently performed. Taylor, 240 Va. at 373, 397 S.E.2d at 836; City of Virginia Beach v. Virginia Beach Steel Fishing Pier, Inc., 212 Va. 425, 427, 184 S.E.2d 749, 750-51 (1971). Reliance on negligent acts under these circumstances does not transform the nuisance cause of action into a negligence cause of action. Accordingly, the trial court erred in striking the Chapmans' nuisance count on the ground that the alleged negligence precluded a nuisance count.
The Chapmans also argue that ยง 15.1-291 applies to any negligence associated with the maintenance or operation of a recreational facility and thus is applicable to actions for nuisance. The trial court did not expressly rule on this issue. Under these circumstances, the issue is not ripe for resolution in this appeal, and we decline to address the Chapmans' argument in this regard.
V. CONTRIBUTORY NEGLIGENCE
Finally, the Chapmans assign error to a jury instruction regarding contributory negligence. The City argues that it was entitled to the instruction because Mrs. Chapman was negligent when she allowed the children to play unsupervised without protection or any means of rescuing them from harm. She saw her children swinging on the gate and neither attempted to stop them nor to secure the gate. Therefore, the City concludes that, based on this evidence, the jury was entitled to determine whether Mrs. Chapman was contributorily negligent. We disagree.
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. Thus, in a case in which a seven-year-old child was killed darting across a highway to his mother after a school bus passed, we rejected "out of hand" the contention that a contributory negligence instruction was supported by the evidence, stating that "the law does not impose upon parents the absolute duty to provide children . . . with escort service to and from a school bus stop." Bickley v. Farmer, 215 Va. 484, 488, 211 S.E.2d 66, 69 (1975). Similarly, we rejected a claim that a mother was contributorily negligent when her eleven-year-old son was struck by a truck unloading coal, because she failed to keep the boy in the house during the unloading of the coal. P.L. Farmer, Inc. v. Cimino, 185 Va. 965, 971, 41 S.E.2d 1, 4 (1947).
The evidence in this case is also insufficient to support an instruction on contributory negligence. The record shows that the Chapmans were frequent visitors to the Breakers. Mrs. Chapman's aunt and uncle had lived in an apartment in the Breakers from September through April each year for a number of years. Mrs. Chapman went there "at least two or three times a week" to prepare meals and visit and took her children with her. During these visits, Missy and Carolyn often played on the boardwalk and were familiar with it.
The record also reflects that on the day of the accident, Mrs. Chapman was watching her daughters from a window of the apartment. She saw them feeding the sea gulls and saw Missy pushing Carolyn on the gate. She turned away for "just a couple of minutes" and, when she looked back, she saw a man, the hotel clerk, standing with Missy. Fearing that Missy would be kidnapped or othe
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