Basler v. Webb - 188 Ill. App. 3d 178, 135 Ill. Dec. 703, 544 N.E.2d 60 (1989)

Rule:

 Generally, a parent is not liable for the torts of his or her child merely because of that relationship. The Illinois courts adopt the following exception to this rule: A parent is under a duty to exercise reasonable care so to control his minor child as to prevent it from intentionally harming others or from so conducting itself as to create an unreasonable risk of bodily harm to them, if the parent knows or has reason to know that he has the ability to control his child, and knows or should know of the necessity and opportunity for exercising such control. The key for establishing liability is that the parent knows or has reason to know that he has the ability to control his child and knows or should know of the necessity and opportunity for exercising such control. 

Facts:

On April 22, 1987, at approximately 3:30 p.m., Michael Gee had just gotten out of school and was crossing the street when Tanya, riding a bicycle allegedly with no brakes, ran into and seriously injured him. Plaintiff Lorraine Basler, the victim’s mother, filed suit individually and on behalf of Michael alleging defendants Donald and Francis Webb (grandparents and guardians of Tanya) were negligent in not controlling their granddaughter and in entrusting her with a defective bicycle. Defendants moved to dismiss Basler’s complaint for failure to state a cause of action. The trial court allowed Basler to amend her complaint, but Basler chose to stand on her pleadings. The court therefore dismissed her complaint with prejudice. 

Issue:

Did the trial court err in dismissing Basler’s complaint for negligent control?

Answer:

Yes.

Conclusion:

Basler has sufficiently pleaded these requirements in this instance to withstand a motion to dismiss. Specifically, Basler alleged in her complaint that: defendants are the grandparents and guardians of Tanya; defendants were at home and had the ability to control Tanya's conduct and prevent her from riding a bicycle without brakes; defendants knew the bicycle was defective and could not be operated safely by Tanya; defendants failed to take the bicycle away from Tanya when they knew, or with reasonable diligence should have known, Tanya would disobey direct commands and ride the bicycle in its defective state; and defendants knew Tanya customarily rode down the street on which the collision occurred, being an extremely steep street, and that a bicycle without brakes traveling down such a steep street presented a gross danger to the public.

Defendants argue, however, Basler failed to allege that defendants knew or should have known of the necessity of controlling their granddaughter. Defendants believe liability only arises when a parent or guardian has knowledge, based upon the child's past history, of that child's propensity to commit the act which causes the injury. Because Basler failed to allege any similar acts in the past, defendants argue she failed to state a cause of action for negligent control. Defendants, however, refuse to acknowledge Basler alleged that Tanya customarily rode down the steep street where the collision occurred and that she disobeyed direct commands and would ride the bicycle in its defective state anyway. Clearly, Basler’s complaint sufficiently alleges defendants had prior notice that Tanya would disobey their directives to not ride the defective bicycle. And clearly, injury resulting from riding a bicycle with no brakes was more than foreseeable. Yet defendants allowed a bicycle with no brakes to fall into the hands of a six-year-old child. Because Basler alleged defendants had the ability and the knowledge of the need to control both Tanya and the defective bicycle, in addition to defendants' failure to exercise such control, Basler sufficiently alleged a viable cause of action under section 316 of the Restatement of Torts Second. While certainly not a model pleading by any standard, Basler’s complaint is sufficient to withstand a motion to dismiss. Defendants cannot argue they have not reasonably been informed of Basler’s claim against them.