I concur in that part of the majority decision that affirms the judgment in favor of Anthony Darwish against Scott Harmon and reverses and remands the action on the issue of medical expenses. I respectfully dissent to that part of the majority decision that affirms the judgment in favor of Scott Harmon against George and Nadine Darwish.
Anthony Darwish, at age seven, was given permission by his parents to visit his friend, Corey Low, at 7:30 p.m. Anthony and Corey were given permission by Corey's mother, Carole Low, to ride their bicycles at 8:30 p.m. Anthony's parents only gave him permission to ride his bicycle on the street, when in the company of his older brother. Anthony's bicycle was not equipped with reflectors nor lights as required by law when the accident occurred.
The majority reasons that the lack of reflectors and lights on Anthony's bicycle is sufficient evidence of his parents' negligent instruction and failure to properly equip his bike. This reasoning and the verdict of the trial court, however, lack consideration of whether the accident was the foreseeable consequence of the negligent act of George and Nadine Darwish. The injury must be foreseeable to the child's parents. SeeHuston v. Konieczny (1990), 52 Ohio St. 3d 214, 556 N.E.2d 505, syllabus:
"At common law, a parent is not ordinarily liable for damages caused by a child's wrongful conduct. However, liability can attach when the injury committed by the child is the foreseeable consequence of a parent's negligent act. In those circumstances, liability arises from the conduct of the parent."
"The test for foreseeability is whether a reasonably prudent person would have anticipated that an injury was likely to result from the performance or nonperformance of an act. * * * The foreseeability of harm usually depends on the defendant's knowledge." (Citations omitted.) Menifee v. Ohio WeldingProducts, Inc. (1984), 15 Ohio St. 3d 75, 77, 15 OBR 179, 180-181,472 N.E.2d 707, 710.
Foreseeability has taken several forms where parental liability is concerned. Parents may incur liability for negligent entrustment of a dangerous instrumentality, such as a gun or a car. Huston, supra, 52 Ohio St.3d at 217,556 N.E.2d at 508. Parents may incur liability for failure to exercise reasonable control over the children. Huston at 217-218,556 N.E.2d at 508-509, citing with approval Cashman v. Reider'sStop-N-Shop Supermarket (1986), 29 Ohio App. 3d 142, 29 OBR 158,504 N.E.2d 487. Parents may also be held liable when they know of *Page 638 their child's wrongdoing and consent to it, direct it or sanction it. Huston, 52 Ohio St.3d at 218, 556 N.E.2d at 509.
In this case, foreseeability did not take the form of negligent entrustment of an inherently dangerous instrument. SeeCashman, 29 Ohio App.3d at 144, 29 OBR at 160,504 N.E.2d at 489. A bicycle which is not equipped with reflectors or lights is not inherently dangerous. Anthony's bicycle was dangerous because he rode it at night on a public street without reflectors or lights. Furthermore, the entrustment with the bicycle at the time of the accident was given by Carole Low, not the Darwishes.
Foreseeability did not take the form of failure to exercise reasonable control.
"A parent is under a duty to exercise reasonable care so as to control his minor child 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. (Restatement of the Law 2d, Torts [1965], Section 316, followed.)" Cashman at syllabus.
In this case, there is no evidence that the Darwishes knew or should have known of the necessity of keeping their child from visiting a neighbor child for fear that they might ride their bikes at night. Control was entrusted to another parent when the accident occurred. Furthermore, the Darwishes did not know that their child would be riding his bicycle at night under the supervision of another adult.
When the evidence in this case is viewed in the light most favorable to Scott Harmon, reasonable minds could only conclude that a reasonably prudent person would not have anticipated that the accident would have occurred from the Darwishes' failure to equip their son's bicycle with reflectors and lights when their son was permitted to ride his bicycle at night under the supervision of another adult without their knowledge. Had their son done this prior to the accident, had the Darwishes given their son permission to ride his bike that evening, or had their son been under their supervision when he did it, our conclusion would be different. Nonetheless, the accident, in which their son was riding his bike, was not the foreseeable consequence of allowing him to play with a neighbor's child under the supervision of another adult; foreseeability depends on the Darwishes' knowledge. See Menifee, supra.
Therefore, the judgment in favor of Scott Harmon against George and Nadine Darwish should be reversed for lack of sufficient evidence pursuant to Civ.R. 50 and as against the manifest weight of the evidence. *Page 639