Am I responsible for damage?

Submitted by kkn0113 on

Jurisdiction: 

Area of Law: 

Question: 

I have a son who is severely ADHD, we also believe there is some high functioning autism too, but he is still in the process of being tested. He is 5 years old. Recently I started a new job. I hired a sitter for my 2 boys. She supposedly has worked with autistic children in the past. I let her know up front exactly what my son's issues are and that he needs to be watched constantly. I have already had some issues with her for other various reasons like changing her rates, telling me at the last minute that she needs a day off or that I have to find someone to pick them up early cuz she's going to a concert, etc. So I have not been happy with her for awhile. But my boys do love going there. She lets them play outside most of the day and she takes them places. So tonight I go to pick my boys up after work. When I get there, I am confronted by her and the neighbor couple. Apparently my son was next door playing with the neighbor boy and watching their big screen tv. There were three adults in the house, the sitter and the two parents of the neighbor boy. Now these are VERY small apartments and the kitchen is right off the living room. It is very easy to see what is going on in both rooms no matter which one you are in. All three adults were in the kitchen. They said they were cooking dinner but I find it hard to believe that it took all three of them to cook corndogs. So the story they gave is this.... They thought my son went up to use the bathroom, but he actually went up there deliberately to grab a bookmark and bring it downstairs to light on fire with the candle they had on the coffee table. He lit it on fire and then deliberately set the rug and a comforter on fire. Their son yelled that there was a fire and the dad ran to put it out, but there was damage to the rug and comforter. They said he showed no remorse. Now this is how I REALLY think it went knowing my son..... He went upstairs to go potty. He saw the bookmark (or to be fair, he could have even gotten into something and found it, he does that sometimes) and he brought the bookmark downstairs just to play with. He saw the candle and started messing with the fire with the bookmark. The bookmark caught fire and he most likely panicked because he didn't know how to put it out so he dropped it. It caught the rug and comforter on fire and he was too scared to tell anyone because he probably knew he was in big trouble, so the neighbor boy yelled for his dad. Now I have both neighbors and the sitter telling me that I have to pay for a new rug and a new comforter. Now I make a decent amount at my new job, but I am far from rich. I am a single mom that just scrapes by. The way I see it there were three very capable adults in the house! There were lit candles (not one, but multiples) within children's reach that quite obviously were not being supervised closely enough. The neighbors say that even their two year old knows better than to touch a candle. In all fairness, my son has never been around candles or open flames. I am allergic to most scents so I don't use them, therefore he is not aware of what could happen. And also, he has something wrong that his brain does not function like everyone else's. He is not a normal 5 year old. He has triggers that set him off at times. He can be hard to handle. He is into everything all the time. The sitter was told all of this before she even started. I even dropped the boys off for a couple hours one day for a practice run before either of us agreed on the job so she could see how he was and decide if she could handle him or not. But even regardless of all this, the most important factor is that I left him in her care. She was responsible for him at the moment he lit that fire. She was not watching him closely and I feel that she is also responsible for the damage. Now I am not just trying to place blame to get out of paying for something my son did. If I really felt that this was my responsibility, I would suck it up and somehow scrape up the money to pay for this. I just really feel like she should have been paying attention to what was going on around her and never left a child, especially a boy like him, around candles that were within reach! My other son is even younger, he is four. He could have just as easily played with that candle along with the 3 other boys that were in the house. I also can't help thinking this could have been so much worse! My son could have burnt himself on the flame or spilled hot wax on himself. And even worse, if the neighbor boy had waited just a minute or two longer to alert his father, there could have been lives lost. There were a total of 3 adults, 5 boys and a newborn baby in that house! I am furious that my son did this, but I am even more furious at the sitter for allowing him to put himself in that danger! My main question in all this is who is responsible for the damage? Me, as I am the mother? Or the sitter who was responsible for him at the time of the incident?

Selected Answer: 

DakotaLegal's picture

 

Submitted by DakotaLegal on

 
The problem is: anyone can be sued, in a civil court, for any act. And in the last twenty years, almost every state has passed some new laws, aimed squarely at making parents liable in some way for their kids’ actions. Tennessee, however, has only limited areas of liability under state law for parents: §T.C.A §§ 37-10-101 and 37-10-103 24, are laws essentially for children’s vandalism. It’s the purpose of the alleged vandalism you have to worry about, and here’s the full law: http://www.state.tn. us/tccy/tnchild/37/37-10-103.htm. The law applies to a minor (age 18 or under) and can allow for recovery of up to a maximum of $10,000 in damages.
 
Besides a suit under this statue, it’s possible for you to be sued at what’s called the Common Law. A jury might hold a parent responsible, if they could be convinced you knew of the special risks posed by your son, and failed to adequately “warn” or control those acts by your son. But to actually hold you financially liable here, there is a common element the neighbors would probably have a hard time proving….that the facts show that what your son did was ‘willful’ and malicious. He lit a bookmark, and not the rug. Willfulness seems to be a stretch in this case. On the other hand, this “willfulness” seems to be what they are suggesting by saying your son “showed no remorse.” It’s a stretch on their part. If they tried to sue under the common law, then they have the problem of showing their own actions (failing in adequate supervision of a child they know to have ADHD: where did the lighter come from? Has the son ever played with burning objects before?) did not somehow contribute to the damages.
 
You asked about holding the sitter responsible, but there are several problems with that, too. First, your legal interests and liability seem to be almost the same thing as the sitters. If the sitter is liable, then so are you. Even if she were a professionally licensed day care provider, you might be required to reimburse her (assuming there was nay legal liability). This is because most professionals have some fine print in their contracts for care, where any negligent act by a child must be reimbursed. Now, note that the word “negligent” in a contract is lot more liability than the idea of being ‘willful’ and malicious in a legal action.
 
Your son has some important legal rights and protections based on his disability. Many times these protections are going to depend on getting the correct diagnosis of ADHD. As you know, there’s more than one “type” of ADHD: and if you are a one-parent family, with its own special pressures, and money is an issue, there are treatment implications for this present problem. http://www. drgrantmartin.com/documents/ADHD-singlept-final.pdf.The laws designed to help kids with a disability are not, as some critics say, meant to give your son (or you) any special protections under the law. It is an attempt by the law to be sure your son is essentially given more equal footing. Disability laws help keep your son from being unfairly blamed or taken advantage of. A great place to start is with Tennessee’s “Protection and Advocacy” (or P&A) agency. Working with a P&A can also help address your concerns about where to send your child for child care, so that he gets the right kind of after-school care, too. The P&A will also help him get the right medical treatments if he needs them too. And in terms of liability, they can help there, too. Here’s the contact information for Tennessee’s P&A: http://www.dlactn.org/. Toll free, 1.800. 342.1660.
 
 
 

All Comments

DakotaLegal's picture

 

Submitted by DakotaLegal on

 
The problem is: anyone can be sued, in a civil court, for any act. And in the last twenty years, almost every state has passed some new laws, aimed squarely at making parents liable in some way for their kids’ actions. Tennessee, however, has only limited areas of liability under state law for parents: §T.C.A §§ 37-10-101 and 37-10-103 24, are laws essentially for children’s vandalism. It’s the purpose of the alleged vandalism you have to worry about, and here’s the full law: http://www.state.tn. us/tccy/tnchild/37/37-10-103.htm. The law applies to a minor (age 18 or under) and can allow for recovery of up to a maximum of $10,000 in damages.
 
Besides a suit under this statue, it’s possible for you to be sued at what’s called the Common Law. A jury might hold a parent responsible, if they could be convinced you knew of the special risks posed by your son, and failed to adequately “warn” or control those acts by your son. But to actually hold you financially liable here, there is a common element the neighbors would probably have a hard time proving….that the facts show that what your son did was ‘willful’ and malicious. He lit a bookmark, and not the rug. Willfulness seems to be a stretch in this case. On the other hand, this “willfulness” seems to be what they are suggesting by saying your son “showed no remorse.” It’s a stretch on their part. If they tried to sue under the common law, then they have the problem of showing their own actions (failing in adequate supervision of a child they know to have ADHD: where did the lighter come from? Has the son ever played with burning objects before?) did not somehow contribute to the damages.
 
You asked about holding the sitter responsible, but there are several problems with that, too. First, your legal interests and liability seem to be almost the same thing as the sitters. If the sitter is liable, then so are you. Even if she were a professionally licensed day care provider, you might be required to reimburse her (assuming there was nay legal liability). This is because most professionals have some fine print in their contracts for care, where any negligent act by a child must be reimbursed. Now, note that the word “negligent” in a contract is lot more liability than the idea of being ‘willful’ and malicious in a legal action.
 
Your son has some important legal rights and protections based on his disability. Many times these protections are going to depend on getting the correct diagnosis of ADHD. As you know, there’s more than one “type” of ADHD: and if you are a one-parent family, with its own special pressures, and money is an issue, there are treatment implications for this present problem. http://www. drgrantmartin.com/documents/ADHD-singlept-final.pdf.The laws designed to help kids with a disability are not, as some critics say, meant to give your son (or you) any special protections under the law. It is an attempt by the law to be sure your son is essentially given more equal footing. Disability laws help keep your son from being unfairly blamed or taken advantage of. A great place to start is with Tennessee’s “Protection and Advocacy” (or P&A) agency. Working with a P&A can also help address your concerns about where to send your child for child care, so that he gets the right kind of after-school care, too. The P&A will also help him get the right medical treatments if he needs them too. And in terms of liability, they can help there, too. Here’s the contact information for Tennessee’s P&A: http://www.dlactn.org/. Toll free, 1.800. 342.1660.