Van Camp v. McAfoos

Supreme Court of Iowa · 1986 · Torts

TortsPleadingChild liabilityParental liabilitymotion to dismissfailure to state a claimultimate factsfault

Facts

Plaintiff alleged that while she was using a public sidewalk, defendant Mark McAfoos was operating a tricycle on the sidewalk and drove it into the rear of her right leg without warning, injuring her Achilles' tendon and leading to surgery. In a separate division, plaintiff alleged Mark was three years and one month old and that his parents had furnished the tricycle, knew or should have known he had a propensity to ride it upon or near the public sidewalk so as to create an unreasonable risk of harm, and failed to warn the babysitter or direct her to exercise proper control. The parents had given custody of Mark to a babysitter at the time of the incident. Defendants moved to dismiss, arguing the petition alleged no negligence or other wrongful conduct and stated no actionable claim against either Mark or his parents.

Issue

Did the petition state a cause of action against the child where it alleged only that he rode a tricycle into plaintiff on a public sidewalk without warning, and against the parents where it alleged only that they knew he rode the tricycle on or near the sidewalk and failed to warn the babysitter or direct control? More broadly, can plaintiff recover on these pleadings without alleging facts showing fault or wrongful conduct?

Rule

To state a tort claim, a petition must allege ultimate facts from which the fact finder can conclude the essential elements of the cause are present, including some form of wrongful conduct or fault, unless the pleaded facts bring the case within a recognized strict-liability exception. For parental liability based on failure to control a child, the pleading must allege facts showing the child had a propensity to act wrongfully in a way creating unreasonable risk of bodily harm and that the parents knew or should have known of the necessity and opportunity to exercise control.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Des Moines, eight-year-old Liam Porter was riding a kick scooter on a residential sidewalk when he rolled into Nora Velez from behind, bruising her calf. Nora's petition alleges only that Liam operated the scooter on the sidewalk, struck her without warning, and caused injury.

If Liam moves to dismiss for failure to state a claim, how should the court rule?

Explanation. A tort petition must allege ultimate facts from which the fact finder can infer the essential elements of the cause of action, including some form of wrongful conduct or fault, unless the pleading brings the case within a recognized strict-liability exception. A bare allegation that a child rode an ordinary play device on a sidewalk and struck the plaintiff without warning does not itself plead intentional or negligent wrongfulness. Because Nora pleaded only contact and injury, dismissal is proper.