SW Legal studies in Business

Children of Visiting Guests Not Due Special Protection by Property Owners
Description

South Dakota high court held that social guests and their children are licensees owed a duty of protection against concealed dangers by homeowners they visit. The homeowner is not responsible for watching for the safety of children when the parents are present.

Topic Real and Personal Property
Key Words

Injury; Social Guests; Duty of Care

C A S E   S U M M A R Y
Facts

The Silchuks invited the Andrushchenkos and their three-year-old son, D.A., to visit for lunch. The boy wandered off, went into a bathroom, got in the tub and turned on the hot water. He suffered severe burns as the water was 160 degrees. The parents sued the Silchuks, the builder, and the plumbing company that installed the hot water tank. The home was quite new. The plumber claimed to have set the thermostat at 125 degrees, which is close to the 120 degrees recommended by the Uniform Plumbing Code and the water heater manual. The Silchuks denied they changed the thermostat to a higher temperature. The Andrushchenkos claimed defendants were negligent and that the Silchuks owed a duty of reasonable care to an invitee to protect them against such scalding water. The trial court entered summary judgment for defendants. Plaintiffs appealed.

Decision

Affirmed. The plaintiffs failed to establish that the home builder or plumber had a duty to set the water heater temperature to 120 degrees. They also failed to show that the homeowners knew that the temperature of the water in their home was excessively hot and could pose a danger. They used the water and had small children and did not have a problem. The homeowners did not undertake an implied or express duty to be responsible for the child of a social guest. The general duty owed to licensees, such as the guests, is to warn of concealed, dangerous conditions known to the property owner. The parents had primary responsibility to care for their son; the home owner was not responsible for what happened to him when he wandered out of the sight of the parents.

Citation

Andrushchenko v. Silchuk, 744 N.W.2d 850 (Sup. Ct., S.D., 2008)

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