“Livin’ La Vida in Loco Parentis”: Who is Responsible for Your Child’s Safety in the Summer?

During one memorable summer around the turn of the century, “Livin’ La Vida Loca” (meaning “living the crazy life”) was inescapable in popular culture. When thinking about the summer these days, most children are probably thinking about escaping something else - school.

Parents with school-age children must find alternative options for education, activities, and care during the two-month school closure period. If work or other commitments prevent them from taking on the daytime supervision duties usually handled by teachers, principals and school staff, their children will be “livin’ la vida in loco parentis” as alternative caregivers (summer camps, institutional childcare, or babysitters - including other parents) assume some parental responsibilities.

In this blog post, we explain the legal concept “in loco parentis,” highlight how it may apply to some injuries commonly sustained during typical summer activities. Make sure your backup caregiver knows their duty to your child and how to keep them safe. This will help everyone have a fun break from school without any accidents.

In Loco Parentis.

Coming from Latin, in loco parentis is a legal term meaning “in place of a parent.”

Individuals who are taking care of children on behalf of their parents or guardians are granted some of the same rights and responsibilities a parent would have. Initially referring to matters relating to financial support for a child in absence of a parent, Canadian statutes and case law have created a more comprehensive interpretation for various scenarios where a child’s parent is not present to supervise the child or make decisions about their immediate needs.

For example, during the school day, teachers and other school staff entrusted to supervise a child, are to act in loco parentis. In the past, teachers had a similar responsibility to parents in ensuring a child's well-being. They could also be held accountable if the child sustained any injuries. However, the Supreme Court has clarified that a teacher need only provide “supra-parental expertise” and their actions should conform to what would be expected from a reasonable, competent professional.

Courts weigh a variety of factors when determining how in loco parentis applies for issues of liability. These factors may include: familiarity with the child, length of time spent supervising the child, situations where there is an instructional component or expectation that special skills, training or equipment are needed to do an activity safely, and whether a person is paid for their supervisory role.

Common Summertime Injuries in Children.

Beautiful summer weather often makes it much easier to pry children away from television or computer screens and to encourage them to take part in outdoor activities. While this time spent being more physically active is overwhelmingly a good and healthy thing, it does increase the risk they will sustain certain injuries.

Some common summer injuries reported more frequently during the summer months include:

• bicycle, scooter, skateboard and rollerblade injuries (fractures, sprains, traumatic head injuries (TBIs), nerve damage, trauma from being struck by a motor vehicles);
  
• municipal or backyard playground injuries (falls causing broken bones, sprains, TBIs or nerve damage);
  
• trampoline injuries (fractures, sprains, traumatic brain injuries, head injury and in rare cases paralysis);
  
• unstructured risky outdoor play (play fighting injuries, potential to get lost, using dangerous tools or equipment such as lawnmowers);
  
• dog bites (infection, muscle and nerve damage, disfigurement);
  
• food-borne illnesses (improperly refrigerated or cross-contaminated food can cause serious gastrointestinal illness or infection);
  
• heat-related injuries (heatstroke, heat exhaustion, dehydration, severe sunburn);
  
• water-sports injuries (drowning or near drowning, boating injuries, head trauma or nerve damages from diving injuries); and
  
• other sports-related injuries.

Anyone acting in loco parentis, should be providing good supervision, taking reasonable precautions and following best practices when it comes to safety. Institutional childcare facilities, licenced childcare providers, or formal summer camps will likely have risk management strategies in place that require staff training in these processes. Informal caregivers, such as parents or babysitters, may not be bound by these rules. However, they still have a responsibility to care for the child and ensure their safety by taking reasonable measures.

Who is Liable?

Sometimes a child will become injured even if a substitute caregiver is providing proper supervision and prudently assessing risks. But, if your child has been seriously injured while in the care of another person, it is often worth your time to investigate the circumstances behind the injury to determine if someone’s negligence caused or contributed to the harm your child experienced.

For example, if a child sustains an injury when diving into a pool, various aspects of the law, including in loco parentis, could apply in apportioning liability.

If the child accessed the pool because it was not properly fenced or if lack of maintenance of the pool or its equipment caused or contributed to the injury, there may be a breach of the Occupier’s Liability Act. This law requires a person or entity responsible for a property to keep visitors reasonably safe from hazards that could cause harm.

If the injury occurred due to a defective diving board or other piece of equipment used, a product liability case may be necessary to obtain damages from the manufacturer.

If the child’s injury resulted from negligent supervision or an inappropriate or inadequate response to an accident, a tort action relying on that standard of care required by in loco parentis may be needed.

Some questions to consider include:

• Was the child improperly supervised by summer camp counsellors or other substitute childcare providers?
  
• If the pool advertised lifeguards that a substitute childminder relied on, was the pool over capacity or was the lifeguard otherwise negligent?
  
• Did a substitute childcare provider or the facility operator require a release or waiver to be signed prior to the child using the pool? Was this waiver understood and did the person signing the waiver have authority to sign on behalf of the child?
  
• Did a substitute caregiver know or should they ought to have known about the child’s level of swimming ability and skill? Were additional safety precautions taken if necessary (for example, more vigilant supervision, use of personal floatation devices, etc.).

We Can Help.

Depending on where you child sustains an injury, you may have as few as 10 days to give notice that you will be making a claim. Investigating an incident promptly helps preserve evidence and find potential witnesses, making it advantageous. By contacting a qualified personal injury lawyer at Gluckstein Lawyers as soon as possible after the accident you can protect your right to sue.

When you reach out to Gluckstein Lawyers for a free consultation, we will inquire about your child's injury. We will also ask about the possible party responsible for the injury. Additionally, we will provide an explanation of the available choices you have. If you have an actionable claim and we believe we can help you and your child obtain damages, we will offer to be your legal representative and advocate.

Summertime should not be spent inside - especially not inside a hospital. If your child was seriously hurt while not in your care and the resulting injury or disability has significantly impacted them and/or your family, you may be eligible to receive compensation for what happened. Contact us today to learn more about what we can do for you.