Lasley v. Hylton

PRESENT: All the Justices

TABITHA LASLEY, A MINOR, OPINION BY
BY JUANITA LASLEY, HER NEXT FRIEND, JUSTICE WILLIAM C. MIMS
ET AL. October 31, 2014

v. Record No. 132048

DANIEL HYLTON

FROM THE CIRCUIT COURT OF BOTETOURT COUNTY
Larry B. Kirksey, Judge

In this appeal, we consider the legal duty that a host owes

to a child social guest when the child's parent is present and

supervising the child.

I. BACKGROUND AND MATERIAL PROCEEDINGS BELOW

Over Labor Day weekend of 2008, Daniel Hylton ("Hylton")

hosted a cookout for friends and neighbors at his property in

Botetourt County, Virginia. Among his guests were Gene Moseley

("Moseley") and his two daughters, eight-year old Tabitha Lasley

("Tabitha") and twelve-year old Casey Lasley ("Casey").

Although Hylton and Moseley were well-acquainted, Hylton had

never met Tabitha or Casey.

When they arrived, Casey and Tabitha saw a teenage boy

riding a green all-terrain vehicle ("ATV"). Neither girl had

ridden an ATV before. With Moseley's permission, Tabitha

accepted a ride on the back of the green ATV. Thereafter,

either Hylton asked Casey if she would like to drive an ATV, or

Casey asked Hylton for permission to do so.
 Hylton owned two ATVs — the green ATV and a smaller, red

ATV. Prominent safety warnings were stickered to the seat and

body of the red ATV, including one that read: "NEVER permit

children under age 12 to operate this ATV." The owner's manual

contained additional warnings, including one that stated: "The

minimum recommended age for this ATV model is 12. Children

under age 12 should never operate an ATV with engine size 70cc

or greater." The red ATV had an engine size of approximately

86cc. Despite these warnings, Hylton routinely permitted

neighborhood children to drive the red ATV provided they

received permission from their parents and wore a helmet and

shoes.

Hylton and Moseley set Casey up on the red ATV. Hylton

explained the controls; then Casey drove across the property.

While watching her older sister, eight-year old Tabitha asked

Hylton if she could drive the ATV as well. Hylton told her that

she had to get her father's permission first. When Tabitha

asked Moseley for permission to drive the red ATV, he agreed.

Moseley called Casey back so that Tabitha could take a turn.

Casey had difficulty bringing the ATV to a stop and actually

struck Moseley in the process.

Tabitha put on the helmet with help from another adult, and

Moseley helped Tabitha onto the ATV. As the engine was running,

Hylton explained where the gas pedal, clutch, and brakes were

2
located. Then Tabitha accelerated, reaching an estimated speed

of five to ten miles per hour. Almost immediately, she lost

control and began to swerve. Moseley yelled for Tabitha to

stop, but before she could do so, she tipped the ATV and was

thrown to the ground. Tabitha sustained multiple injuries,

including a fractured shoulder.

Tabitha, by her mother, Juanita Lasley, and Juanita Lasley

in her own right (collectively "Lasley"), filed an amended

complaint in the Circuit Court of Botetourt County. The

complaint alleged that Hylton had been negligent and grossly

negligent by allowing and assisting Tabitha to operate the ATV,

failing to advise Moseley and Tabitha of the warnings displayed

on the ATV, and failing to heed those warnings.

At trial, Hylton testified that he relied on Moseley, as

Tabitha's parent, to decide whether she could safely drive the

ATV. Moseley never asked Hylton, and Hylton never agreed, to

supervise the girls. In fact, Moseley was present and assisted

both girls while they rode. Hylton also testified that he knew

Tabitha was about eight years old and that he never asked

whether she had driven an ATV before. Hylton acknowledged that

he never discussed the warnings displayed on the ATV or the

risks of driving an ATV with Moseley or Tabitha.

At the conclusion of Lasley's case, Hylton moved to strike

the evidence. The circuit court, relying on Ingle v.

3
Clinchfield Railroad Co., 169 Va. 131, 192 S.E. 782 (1937),

granted Hylton's motion and entered judgment in his favor. 1 The

court reasoned that in the absence of evidence of a special

relationship or evidence that Hylton assumed a duty to supervise

Tabitha, he had no duty to Tabitha that could support a finding

of negligence:

It is clear that Tabitha Lasley was under the
supervision of her father at the time this took
place and that's not disputed. It is clear that
the Defendant inquired of the supervising parent
with regard to the activity that was requested.
It is clear and not disputed that the supervising
parent gave his permission. I think it's clear
under Virginia [l]aw that if a child is
supervised by a parent and that the parent sees
no peril in the child's activity, that it would
be demanding too much of the Defendant to foresee
the peril in the situation.

Lasley assigns error to the circuit court's ruling that

Hylton, as a matter of law, did not have a duty to prevent

Tabitha from riding the ATV. Lasley also assigns error to the

circuit court's reliance on Ingle, asserting that it is

distinguishable on its facts.

II. DISCUSSION

A. The General Duty of a Host to Social Guests

We review the trial court's rulings de novo, as "[t]he

issue whether a legal duty in tort exists is a pure question of

1
The circuit court did not make a separate finding
regarding whether the facts supported a claim for gross
negligence, apparently concluding that only simple negligence
was implicated.

4
law." Kellermann v. McDonough, 278 Va. 478, 487, 684 S.E.2d

786, 790 (2009).

As an initial matter, the parties do not dispute that

Tabitha and her family were Hylton's social guests at the

cookout. Virginia law imposes a duty upon a host to conduct his

or her activities with reasonable care under the circumstances.

Bradshaw v. Minter, 206 Va. 450, 453, 143 S.E.2d 827, 829

(1965). Bradshaw is instructive though distinguishable, as

explained in Part II.D.

In Bradshaw, the host permitted his guest to ride one of

his horses, which he knew was "spirited" and "liked to run."

Id. at 451-52, 143 S.E.2d at 828. He had no knowledge of his

guest's riding experience, and he failed to adequately disclose

the horse's propensities to her. Almost immediately, the horse

threw the guest to the ground, causing her injuries. Id. This

Court held that "[w]here the activities of the host are

involved, the test should be one of reasonable care under the

circumstances." Id. at 453, 143 S.E.2d at 829. However, a host

is not subject to liability if the guest knew or should have

known of the host's activities and any accompanying risk. Id.

Consequently, as a general rule a host has a duty to social

guests for his or her activities. But when the risk is open and

obvious, as Hylton asserts in the present case, the host is not

liable. See Smith v. Lamar, 212 Va. 820, 823, 188 S.E.2d 72, 74

5
(1972) (quoting Perlin v. Chappell, 198 Va. 861, 864, 96 S.E.2d

805, 808 (1957)) ("'Reasonable care' or 'ordinary care' is a

relative term, and varies with the nature and character of the

situation to which it is applied. . . . The test is that degree

of care which an ordinary prudent person would exercise under

the same or similar circumstances to avoid injury to another.'")

B. The Host's Specific Duty to a Child Who Is Supervised by a
Parent

Before we reach the question of whether the ATV constituted

an open and obvious risk, the facts of this case present an

issue of first impression for this Court. We have never

articulated the duty that a host owes to a child social guest

when the parent is present and supervising.

The parties do not dispute that Tabitha's father, Moseley,

was present and supervising her activities. Lasley urges us to

find that this fact is irrelevant, arguing that Moseley's

presence did not circumscribe Hylton's duty to Tabitha to

conduct his activities with reasonable care. In effect, Lasley

argues that Hylton had an absolute duty to prohibit Tabitha from

driving the ATV or at least to discuss the danger with Moseley

before she did. We disagree.

In Ingle, the Court held that the operators of a train had

no legal duty to a child accompanied by, and under the

supervision of, her mother. 169 Va. at 139-40, 192 S.E. at 785-

6
86. In that case, a mother and her three children were walking

along a path parallel to, and approximately four feet from, the

end of the rail ties underlying the tracks. The path was in the

railroad company's right-of-way, and pedestrians made sufficient

use of it to charge the company with notice of its use.

Consequently, the Court concluded that the mother and her

children were the railroad's licensees. The evidence showed

that the daughter was walking about 150 feet in front of her

mother; the mother heard the train approaching; and the mother

called to the daughter to stop. Inexplicably, the daughter

stepped onto the ties and was struck by the train. Id. at 134-

37, 192 S.E. at 783-84.

The Court noted that cases holding that train operators

"must take notice of an unattended small child on the right of

way and anticipate that from childish impulses it may run in

front of the train" were inapposite, because the daughter "was

attended by her mother." Id. at 139, 192 S.E. at 785. The

Court reasoned that if the mother "saw no peril in taking them

down the pathway which was four feet from the end of the ties,

it would be demanding too much of the railroad company to

require that it should have . . . foreseen peril in the

situation." Id. at 140, 192 S.E. 785-86.

Ingle alone does not control the outcome of this case

though, for reasons asserted by Lasley on brief: Hylton's

7
"active and direct commission of negligence . . . placed Tabitha

in peril." Under the rule in Bradshaw, Hylton had a duty to his

guests to exercise reasonable care while carrying on his

activities. Consequently, we must determine under what

circumstances a host is liable for harm to a child social guest,

when that harm is attributable to his alleged active negligence

and the child's parent is present and supervising.

C. Case Law from Other States

Virginia recognizes that a parent has a general duty to

supervise and care for a child's safety though, as noted, we

have yet to reconcile it with the duties of a social host. See

Chapman v. City of Virginia Beach, 252 Va. 186, 193, 475 S.E.2d

798, 803 (1996) ("A parent has a duty to exercise ordinary care

for the child's safety . . . ."). Although this is a question of

first impression in Virginia, other courts have considered it

and ruled that the parent's duty is superior to the duty of a

social host when the parent is supervising and knows or should

know of an obvious danger.

Two decisions that are particularly instructive, due to

their factual similarity with the present case, are Vares v.

Vares, 571 S.E.2d 612 (N.C. Ct. App. 2002) and Kay v. Ludwick,

230 N.E.2d 494 (Ill. App. Ct. 1967). In Vares, the host invited

his extended family to his home for a regular family gathering,

known as "Farm Day," during which the family members performed

8
various chores intended to maintain the fifty-acre property.

Vares was assigned the task of cutting down a tree. Initially,

he permitted his son to help clear some brush. Then, Vares

directed his son to stand back before he and two other men

felled the tree. Nonetheless, the child moved into the path of

the falling tree, which struck and injured him. Vares, 571

S.E.2d at 614.

The court began by noting that a landowner has a general

"duty to exercise ordinary care for the protection of one of

tender years, after his presence in a dangerous situation is or

should have been known." Id. at 616 (citations and internal

quotation marks omitted). However, the court also noted that

this duty does not apply when "the minor child is being actively

supervised by a parent who has full knowledge of the condition

of the premises and appreciation of the danger thereby

presented." Id. Because Vares was present and supervising the

child when he was injured, the court concluded that the duty of

care "belonged to Vares" and not to the host. Id.

In Kay, a four-year old girl and her mother were guests at

Ludwick's home. During their visit, Ludwick permitted someone

to mow her lawn with a "riding-type rotary power mower" as the

child played outside. The child attempted to climb onto the

rear of the mower, and her foot fell into the path of the blade,

which severed her heel. The mother and child alleged that

9
Ludwick was negligent in permitting the mower to be operated

while the child played outside, failing to warn the child, and

failing to supervise or protect the child. Kay, 230 N.E.2d at

496. The court rejected their arguments, concluding that "[t]he

primary responsibility for the safety of this minor child rested

with its mother" who was present and apparently supervising the

child. Id. at 497. The court noted that the mother "observed

no apparent harm in permitting her child to play in the yard

while the mower was in operation" and to require more from the

host would be to impose "a duty superior to the one the parent

here owed to the child." Id. at 497-98.

D. The ATV Presented Open and Obvious Risks

The fact that Moseley was present and actively supervising

Tabitha is not in dispute. The evidence adduced at trial also

demonstrated that the danger to Tabitha was open and obvious.

Moseley therefore knew or should have known of the risk of

injury.

In Bradshaw, the guest had no way of knowing about the

horse's "spirit" or propensity to run unless the host disclosed

those risks. 206 Va. at 452, 143 S.E.2d at 828. Consequently,

the Court concluded that it was for the jury to determine

whether the host was negligent in permitting the guest to ride

without informing her of the horse's characteristics. Id. at

455, 143 S.E.2d at 830.

10
 Here, however, Moseley had ample opportunity to observe the

variety of warnings clearly affixed to the ATV. There were four

warnings on the ATV itself: one on the visible, top side of the

left-front wheel well; one on the visible, top side of the

right-front wheel well; one on the visible, top side of the

left-rear wheel well; and one on the passenger seat. One

explicitly warned against allowing children under 12 to operate

the ATV. Furthermore, Moseley witnessed firsthand that his

twelve-year old daughter had difficulty controlling the ATV, as

she struck him while attempting to stop. Moseley had every

right and opportunity to refuse to give eight-year old Tabitha

permission to ride the ATV. He had every reason to know of the

risks involved.

The prominently displayed warnings, which were pertinent to

the very circumstances that increased the likelihood of

Tabitha's injury, distinguish this case from those where we have

held that the question of whether a danger is open and obvious

is for the jury. See, e.g., Volpe v. City of Lexington, 281 Va.

630, 638-39, 708 S.E.2d 824, 828 (2011) (holding that a jury

should decide whether an artificial "hydraulic" created by a

low-head dam was open and obvious). Where the danger is open

and obvious, the law places the "primary duty to inform, advise,

and protect a child" on the child's parents. Washabaugh v.

11
Northern Va. Construction Co., 187 Va. 767, 773, 48 S.E.2d 276,

279 (1948).

Lasley, relying on Evans v. Evans, 280 Va. 76, 695 S.E.2d

173 (2010), contends that a rule subordinating a host's duty

under these circumstances effectively imputes the negligence of

the parent to the child. Her reliance on Evans is unavailing,

since that case merely states a narrow exception to the intra-

family immunity rule, whereby a child has the right to recover

from a negligent parent for a motor vehicle accident. See id. at

78 n.1, 695 S.E.2d at 174 n.1. Whether an ATV could be

considered a motor vehicle is a question that is not presented

in this case. 2

Finally, we note that this rule is consistent with social

norms. When a person invites neighbors, friends, or family to

his or her home, that person does not expect to stand in loco

parentis to child guests that accompany their parents. Rather,

that person justifiably should expect his or her guests to

exercise the same care and responsibility towards their children

as they would in their own home. An invitation to a social

2
Further, this rule does not mean that a host does not owe
a duty to a child social guest. If it is reasonably foreseeable
that the parent will not or cannot realize the risks involved
with a host's activity, then the host's duty would remain to
conduct activities with reasonable care for the benefit of child
social guests. Similarly, if the host is supervising the child,
then the host would also have such a duty.

12
event is not an invitation to relinquish parental

responsibility.

III. CONCLUSION

For the reasons stated, we confirm that a host owes a child

social guest a legal duty to exercise reasonable care for the

child's safety. We also conclude that Hylton satisfied this

duty when he ensured that Tabitha was being supervised by

Moseley and had his permission to ride the ATV.

We hold that if a child's parent is present and

supervising, and knows or should know of open and obvious risks

associated with an activity, a host does not breach the duty of

reasonable care when he or she allows the child to participate

in an activity with the parent's permission. Therefore, we

affirm the judgment of the circuit court. 3

Affirmed.

JUSTICE McCLANAHAN, with whom JUSTICE LEMONS and JUSTICE GOODWYN
join, concurring.

Today, the Court in RGR, LLC v. Settle, ___ Va. ___, ___

S.E.2d ___ (2014)(this day decided), espouses a general maxim of

legal duty owed by possessors of property to the entire world.

3
Below Hylton raised the recreational use immunity statute,
Code § 29.1-509, as a defense. Lasley argued on brief that the
statute did not apply to the facts of this case. However, since
the circuit court did not rule on the argument below, we do not
consider it.

13
However, in this case in which Lasley requests application of a

general maxim as the legal duty and expressly disavows reliance

on a specific duty owed by possessors of land to social guests,

the majority ignores the general maxim and fails to explain why

it does not apply in this case. Instead it creates a new

specific duty for possessors of land. Although I believe it

worthwhile to note this inconsistent application and adoption of

new legal theories, fortunately, it is not necessary for me to

address it in resolving this matter because I would affirm the

circuit court's judgment for different reasons.

Lasley did not assert that Hylton violated the duty owed by

a host to a social guest. Lasley’s claim was unrelated to

Tabitha’s status as a social guest on Hylton's premises.

Instead, Lasley contended that Hylton violated a general duty

not to injure Tabitha. See RGR, ___ Va. at ___, ___ S.E.2d at

___ (every person has a duty of ordinary care in the use and

maintenance of their property to prevent injury or death to

others). Because Lasley failed to assert the breach of any duty

owed by Hylton to Tabitha recognized under our tort law prior to

the RGR decision, I would hold that the circuit court did not

err in granting Hylton's motion to strike.

In the circuit court, Lasley asserted that Hylton breached

two separate duties to Tabitha. First, citing Kellermann v.

14
McDonough, 278 Va. 478, 684 S.E.2d 786 (2009), Lasley claimed

that the duty of parental supervision shifted from Mosely to

Hylton such that Hylton became responsible for Tabitha's care.

Second, Lasley contended that even if the duty of supervision

did not shift to Hylton, Hylton owed an independent duty to use

ordinary care not to harm another person. Lasley maintained,

prior to trial, that her cause of action was not based on the

duty owed by Hylton to a social guest on his premises. 1

At trial, Hylton moved to strike Lasley's evidence on the

grounds that the evidence did not establish Hylton owed a duty

to Tabitha absent a shifting of the parental duty of supervision

or the existence of a relationship between Hylton and Tabitha.

In response, Lasley argued that Hylton "did in fact take on that

supervisory role," but if the court found he did not "assume

1
In fact, Lasley's original complaint, as well as her first
amended complaint, included a count against Hylton based on his
status as property owner and host, in which she alleged that
Hylton owed duties to his social guests to have his premises in
a reasonably safe condition for his guests' use, to warn his
social guests of unsafe conditions about which he knew or should
have known, and to use ordinary care not to injure his social
guests by his affirmative negligence. After Hylton filed a
demurrer based, in part, on the recreational use immunity
statute, Code § 29.1-509, Lasley responded that "[t]he facts on
whose land this incident took place [are] irrelevant to
[Lasley's] case and the allegations contained in the Complaint,"
and "[t]his incident could have occurred at a park, on a public
road, school yard, or in the neighbor's front yard, and
[Lasley's] basic causes of action would be nearly identical."
Thereafter, Lasley filed her second amended complaint in which
she did not include the count against Hylton based on his duty
to social guests.

15
that responsibility, there is an independent duty on his part

not to do anything to contribute to putting someone else in

danger." According to Lasley, her claim was based on Hylton's

"failure to comply with his duty to use ordinary care to protect

her." Thus, in responding to the motion to strike, Lasley did

not assert a duty owed by Hylton to social guests on his

premises. 2

On appeal, Lasley has continued to renounce any reliance on

a theory of negligence based on Hylton's relationship to Tabitha

as a social guest on his premises. Specifically, on brief,

Lasley maintains that her cause of action does not pertain to

her status as a social guest on Hylton's premises.

Additionally, Lasley has abandoned her claim based on a

violation of the duty to supervise Tabitha. She argues only

that Hylton owed "a general duty not to injure others

negligently." In distinguishing Ingle v. Clinchfield Railroad

Co., 169 Va. 131, 192 S.E. 782 (1937), Lasley asserts that

Tabitha's "status as a licensee or invitee is irrelevant" to her

claim. Furthermore, arguing that the recreational use immunity

statute is not applicable, Lasley states that her claim does not

concern the ownership or use of land because "[t]his ATV wreck

2
Lasley also did not assert a duty based on a theory of
negligent entrustment. See, e.g., Kingrey v. Hill, 245 Va. 76,
78, 425 S.E.2d 798, 799 (1993).

16
could have occurred on a road, at a park, on a public road,

school yard, or in the neighbor's front yard, and [Lasley's]

causes of action would be identical." 3

At oral argument, Lasley expressly disavowed reliance on

the relationship between Hylton and Tabitha as host and social

guest as the basis for the duty supporting her claim. Indeed,

when pressed to acknowledge this relationship, Lasley answered

that her claim did not have anything to do with the ownership of

the land or the duty owed to a licensee or invitee, but was

based entirely on Hylton's ownership of the ATV and his action

in allowing her to ride it.

Despite Lasley's repeated assertions that her claim is not

based on the duty owed by Hylton to a social guest on his

premises, the majority undertakes to specifically determine what

duty a host owes to a child social guest on his land when the

child's parent is present and supervising. The majority begins

its analysis with Bradshaw v. Minter, 206 Va. 450, 143 S.E.2d

827 (1965), in which the Court discussed the duty owed by a

landowner to a licensee, which includes a social guest, on the

owner's premises. While the Court in Bradshaw reiterated that a

possessor of land generally owes no duty to a social guest to

3
The recreational use immunity statute applies not only to
conditions on the premises but to activities upon the premises
as well. Code § 29.1-509(B).

17
keep the premises in a reasonably safe condition, the Court

recognized a duty of reasonable care where the guest is injured

by the landowner's affirmative negligence. Id. at 452-53, 143

S.E.2d at 828-29. The majority adopts this theory as the basis

for Lasley's claim, and in doing so, addresses a claim Lasley

has not in fact asserted. 4

In sum, I would hold the circuit court did not err in

granting Hylton's motion to strike because Lasley failed to

assert any duty owed to Tabitha recognized under Virginia tort

law. 5 In the circuit court and in this Court, Lasley has

asserted that her claim is based on a general duty not to injure

others negligently without specifying a specific duty arising

out of Lasley's relationship with Tabitha, either as her host or

otherwise. Therefore, the majority has addressed a claim that

Lasley has not asserted and, indeed, has expressly disavowed.

In my view, the Court should await the arrival of a case in

which the appellant actually asserts the breach of a duty owed

by a landowner to a child social guest on the premises to define

4
As noted previously, in her original and first amended
complaints, Lasley asserted a claim based on her status as
social guest on Hylton's premises and alleged Hylton owed a duty
to use ordinary care not to injure his social guests by his
affirmative negligence. However, she did not include this claim
in her second amended complaint.
5
Although Lasley asserted her claim was based in part on the
duty of supervision, which the circuit court ruled was not
supported by the evidence, she has not asserted this duty on
appeal.

18
the scope of the duty. See Commonwealth v. Harley, 256 Va. 216,

219-20, 504 S.E.2d 852, 854 (1998).

For these reasons I concur only in the Court's judgment,

affirming the circuit court's dismissal of the claim in this

case.

19