Court says parents' actions count in kids' personal injury claims

CHARLESTON – The answers to four questions certified by a federal court show that the state Supreme Court feels negligent parents should take some of the blame for the injuries of their children.

The court on Oct. 17 released its answers in a case involving a 7-year-old who, while attempting to start a fire at his family’s home, burned himself when he allegedly attempted to use fire starter gel left near the fireplace.

The fire gel displayed a label that read “keep out of reach of children.”

The court ruled that a negligent parent can be included as a third-party defendant for the allocation of fault, even though the court also ruled that the parental immunity doctrine bars the defendant from asserting a contribution claim against the parents.

“Put in the context of the comparative negligence doctrine in Bradley v. Appalachian Power Co., the plaintiff, A.N., may not recover damages if his own contributory negligence equals or exceeds the combined negligence of the defendants and the third-party defendant’s, A.N.’s parents, in this case,” Justice Menis Ketchum wrote.

The parental immunity doctrine also does not bar a defense of abnormal product use or a defense that the conduct of a parent was an intervening cause of the child’s injuries, the court ruled.

The lawsuit was brought by Kimberly Landis and Alva Nelson, the parents of A.N., in U.S. District Court for the Northern District of West Virginia. Representing the plaintiffs are Dino S. Colombo and Travis T. Mohler of Colombo Law in Morgantown.

The plaintiffs say that on Feb. 28, 2010, A.N. asked his mother if he could roast a marshmallow in the fireplace, which he believed had gone out after burning throughout the day.

While his mother, father and brother were upstairs, A.N. stacked kindling and applied Diamond Fire Starter Gel to the wood, the opinion says.

The bottle was left on a stand next to the fireplace that was within A.N.’s reach, the opinion says. When he sprayed the gel, it allegedly touched a hot ember that was sucked through the bottle cap, igniting the vapors in the bottle.

An explosion gave A.N. severe burns over 65 percent of his body.

The resulting lawsuit was filed against:

-Stull Technologies, the maker of the bottle cap;

-CKS Packaging, the maker of the bottle;

-Packaging Services Company, the producer of the fire starter gel;

-Hearthmark, doing business as Jarden Home Brands, the distributor of the fire starter gel; and

-Wal-Mart stores, where the gel was purchased.

Justice Robin Davis concurred in part, dissented in part and reserved the right to file a separate opinion.

From the West Virginia Record: Reach John O’Brien at jobrienwv@gmail.com.