Opinion
No. 60027-3-I.
August 18, 2008.
Appeal from a judgment of the Superior Court for King County, No. 03-2-35350-7, Harry J. McCarthy, J., entered April 20, 2007.
Affirmed by unpublished opinion per Appelwick, J., concurred in by Cox and Lau, JJ.
While at Costco, Patricia Paulson was hit by a shopping cart operated by a child. She sued seven-year old Victoria Huang for negligence and the child's father for negligent supervision. A jury found neither Victoria nor Yichung Huang had been negligent. The challenged jury instruction, proposed by Huang and given by the court, properly stated the prima facie requirements for a claim against a parent for negligent supervision of a child. We affirm.
Facts
On February 15, 2003, Patricia Paulson shopped at a Costco store, located in Issaquah, Washington. According to Paulson, she was struck by a child who was pushing a large, semi-loaded shopping cart. Paulson stated that a man, who she presumed to be the father, apologized for the girl's action. Paulson claimed the shopping cart incident severely injured her back. Several months later, Paulson reviewed Costco member pictures and identified Yichung Huang as the father of the young girl. In King County Superior Court, Paulson sued Yichung Huang for negligent supervision and his daughter, Victoria Huang, for negligence. The jury trial was scheduled for March 2007.
On March 2, 2007, the trial court held a hearing on the parties' proposed jury instructions. Both parties presented argument. Paulson requested the court give a jury instruction on the issue of negligent supervision. It stated:
A parent is liable for the torts of his or her child when the parent knows or has reason to know that he or she has the ability to control the child, and knows or should know of the necessity and opportunity for exercising such control.
Huang requested the court give the following instruction on the elements of the claim for negligent supervision:
To establish a claim of negligent supervision of a child, the plaintiff must prove each of the following: a) that the child has a dangerous proclivity; b) that the parents knew (Or should have known) of the child's dangerous proclivity; 3) that they failed to exercise reasonable care in controlling that proclivity and 4) that such dangerous proclivity proximately resulted in harm to the plaintiff.
The trial judge deferred a decision about the instructions until the following Monday, March 5. But, the court signaled it would probably give both:
I think to allow both parties to really argue their theories of the case with respect to negligent supervision, that they should have the benefit of each of the instructions to argue from.
The record before this court only contains the Verbatim Report of Proceedings of the hearing on March 2, 2007. It does not contain the trial court's transcript from March 5, where the parties formally objected to the instructions and the court gave its ruling. But, both parties' proposed instructions are contained in the court's instructions to the jury. The instruction requested by Paulson was identified as instruction 11 and the one requested by Huang became number 10. Huang does not dispute that Paulson objected to the giving of instruction 10.
The jury entered a verdict for defendants, Victoria and Yichang Huang. On the question of whether any of the defendants were negligent, the jury answered "no." The trial court entered a judgment on the jury verdict and order on costs in favor of the Huangs. Paulson timely appealed to this court.
Discussion
The trial court gave both parties' proposed jury instructions on the elements of a claim for negligent supervision. Paulson contends the instruction proposed by Huang and given by the court as jury instruction 10, is an incorrect statement of the law where a plaintiff claims a child's act was negligent, not an intentional tort.
We review jury instructions de novo. Cox v. Spangler, 141 Wn.2d 431, 442, 5 P.3d 1265 (2000). An instruction that contains an erroneous statement of the applicable law is a reversible error where it prejudices a party. Id. Jury instructions are sufficient when they allow counsel to argue their theories of the case, do not mislead the jury, and when taken as a whole, properly inform the jury of the law to be applied. Id. "A clear misstatement of the law, however, is presumed to be prejudicial." Keller v. City of Spokane, 146 Wn.2d 237, 249-50, 44 P.3d 845 (2002). Instructions are inadequate if they prevent a party from arguing its theory of the case, mislead the jury, or misstate the applicable law. Bell v. State, 147 Wn.2d 166, 176, 52 P.3d 503 (2002).
Here, the trial court gave the following as jury instruction 10:
To establish a claim of negligent supervision of a child, the plaintiff must prove each of the following: (1) that the child has a dangerous proclivity; (2) that the parents knew, or should have known, of the child's dangerous proclivity; (3) they failed to exercise reasonable care in controlling that proclivity; And (4) that such dangerous proclivity proximately resulted in harm to the plaintiff.
This jury instruction closely tracks the wording of Washington case law on the elements of a prima facie claim for negligent supervision of a child. A plaintiff must present evidence that the "(1) the child has a dangerous proclivity; (2) the parents know [or should have known] of the child's dangerous proclivity; and (3) they fail to exercise reasonable care in controlling that proclivity." Barrett v. Pacheco, 62 Wn. App. 717, 722, 815 P.2d 834 (1991); accord Eldredge v. Kamp Kachess Youth Servs. Inc., 90 Wn.2d 402, 583 P.2d 626 (1978); 16 David K. DeWolf Keller W. Allen, Washington Practice: Tort Law and Practice § 3.21 at 137 (3d ed. 2007).
Paulson contends the trial court erred in giving the instruction because the case law it relied on only applies to claims involving intentional torts. She argues a claim for parental negligent supervision does not require a showing of the child's proclivity when the child is alleged to have committed a negligent act. She cites no authority for this proposition. Washington courts consistently require a plaintiff to show the child has a "habit" or "proclivity" for dangerous conduct regardless of whether the child is alleged to have acted negligently or intentionally. Norton v. Payne, 154 Wash. 241, 245, 281 P. 991 (1929); Eldredge, 90 Wn.2d at 408; Barrett, 62 Wn. App. at 722; Sun Mountain Products Inc. v. Pierre, 84 Wn. App. 608, 615, 929 P.2d 494 (1997);Beltran v. DSHS, 98 Wn. App. 245, 254, 989 P.2d 604 (1999).
In Carey v. Reeve, this court applied the rule that a parent must have knowledge of his or her child's proclivity to a case involving the burning of another child by a four-year old. 56 Wn. App. 18, 22-23, 781 P.2d 904 (1989). The court noted, "[w]e need not discuss the issue of whether the burning might have been an intentional act by reason of Jeremy's tender age. There is a conclusive presumption that children under 6 years of age cannot form the intent to harm others." Id. at 24.Reeve is contrary to and disproves Paulson's argument. Since 1929, in order maintain a claim for negligent parental supervision, Washington courts have required that a plaintiff show a child had a dangerous proclivity, even in claims where the child allegedly committed a negligent act. The trial court did not err in giving jury instruction 10 because it is an accurate statement of the law.
The jury instruction on negligent supervision proposed by Paulson and given by the trial court as jury instruction 11 stated:
A parent is liable for the torts of his or her child when the parent knows or has reason to know that he or she has the ability to control the child, and knows or should know of the necessity and opportunity for exercising such control.
Jury instructions to which no objections or exceptions are taken become the law of the case. Guijosa v. Wal-Mart Stores Inc., 144 Wn.2d 907, 917, 32 P.3d 250 (2001);Tonkovich v. Dep't of Labor Indus., 31 Wn.2d 220, 225, 195 P.2d 638, 640-41 (1948). This instruction specifically required the child to have committed a tort in order for a parent to be liable for negligent supervision. The jury found that Victoria Huang did not act negligently. Because there was no tort committed by the child, the parent, Yichung Huang, could not be held liable for negligent supervision under Paulson's own instruction. Therefore, the outcome of the trial as to parental liability would have been the same, with or without jury instruction 10. Any error in giving the instruction, had it been an incorrect statement of the law, would have been clearly harmless.
The trial court expressly gave instructions proposed by both Huang and Paulson, in order for them to argue their theories of the case. Neither was given in error.
We affirm.