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State Auto Insurance Companies v. B.N.C.7/27/2005
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Restatement (Second) of Torts ยง 316. Under this rule, a parent only has the duty "to exercise such ability to control his child as he in fact has at the time when he has the opportunity to exercise it and knows the necessity of so doing." Id. cmt. b.
[ .] State Auto contends that "Ault had reason to know that she had the ability, necessity, and opportunity to control B.D." However, the record reflects that on the morning of the accident, Ault dropped B.D. off at a friend's house where B.D. was scheduled to spend the day and night. The record further reflects that Ault did not know that B.D. would be at Close's home that day. Finally, the record reflects that while B.D. had previously gone swimming at Close's home, it was " ot that often" and B.D. had never gone to Close's home with just a friend. These facts are uncontested and do not generally reflect the necessity and opportunity to better control B.D. on that day.
[ .] State Auto, however, contends that the fact that Ault did not know B.D. would go to Close's home on the day of the accident was evidence of her failure to exercise reasonable control. We disagree. There is no dispute that arrangements were made for B.D. to be at her friend's home. Moreover, State Auto has not identified any other fact or inference indicating that Ault had reason to know or should have known of the necessity and opportunity to intercede and exercise further control over B.D. after those arrangements were made. On the contrary, we see no record evidence of a history of B.D. entering people's homes or taking vehicles. Additionally, State Auto has not identified any additional measures that Ault should have taken to "better" control B.D. Therefore, we see nothing in the record suggesting that "B.D.'s past conduct should give any parent a reason to better monitor, supervise, and control" the activities of their children any more than Ault already had. Because the parties' statements of fact reflect that Ault was aware of where her daughter was supposed to be on the day of the accident, and because the statements do not reflect that Ault's expected custodial arrangement was inadequate, State Auto has failed to establish a duty to further control or better supervise B.D.
[ .] We therefore affirm on all issues, except the direct negligence action alleging a breach of duty in a gratuitous undertaking. That issue is remanded for reconsideration by the court after development of the factual record.
[ .] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, and MEIERHENRY, Justices, concur.
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