Babysitter liability for negligence

Babysitters may be liable if they fail to exercise reasonable care in supervising the child, and that failure leads to harm. Restatement (Second) of Torts, section 324, says:

“One who, being under no duty to do so, takes charge of another who is helpless adequately to aid or protect himself is subject to liability to the other for any bodily harm caused to him by (a) the failure of the actor to exercise reasonable care to secure the safety of the other while within the actor’s charge . . . .”

Restatement (Second) of Torts, section 302 states,

“A negligent act or omission may be one which involves an unreasonable risk of harm to another through … the foreseeable action of … an animal ….”

A number of cases from throughout the nation illustrate the principle that an unpaid babysitter will be held liable if the child in her custody is injured as a result of her negligence. For example, in Zalak v. Carroll (1965) 15 N.Y.2d 753, the New York Court of Appeals, in upholding a judgment against a volunteer babysitter for injuries suffered by an infant in her care, stated:

“Even without compensation, when defendants undertook to control a young child and provide care for her, they became responsible for her injury through their negligence [citations omitted]. Thus defendants’ duty to use reasonable care to protect the infant was not measured by what their duty would have been to a social guest or a mere licensee. They were required to use reasonable care to protect the infant plaintiff from injury.”

In Whitney v. Southern Farm Bureau Casualty Insurance Co. (1969) 225 So.2d 30 (La.App.), a case involving care of a child by a volunteer babysitter, a Louisiana Court of Appeal stated the law as follows:

“The primary issue is whether [defendant] was negligent. As a general rule, a person who undertakes the control and supervision of a child, even without compensation, has the duty to use reasonable care to protect the child from injury.”

In Barbarisi v. Caruso (1957) 47 N.J. Super. 125, a New Jersey court reversed a trial court judgment of involuntary dismissal in an action by an infant who was left with his grandmother under an arrangement with his mother by which the grandmother would babysit the child without pay while the mother was shopping. The child was permitted to recover for injuries he sustained when he thrust his arm into an unattended washing machine in operation. The court stated:

“The trial court determined that defendant owed the infant no affirmative duty, and he took the premises as he found them. In our view, the infant plaintiff was not in the ordinary sense a social visitor of the defendant. The pretrial order and the testimony clearly show that the defendant voluntarily assumed a duty which she was under no legal obligation to assume. It is well settled principle of law that ‘a volunteer must act with due care.’ Where one undertakes to do an act for another without compensation, the other relying thereon, he is responsible for the exercise of reasonable care in so doing when he assumes and attempts to perform a duty in which he fails.”

Finally, Standifer v. Pate (1973) 291 Ala. 434 raised the question “as to whether a volunteer babysitter on her own premises owes a duty of due care in supervising a child under her care and control.” (Standifer at p. 436) Answering in the affirmative, the court held:

“[D]efendant undertook to supervise, watch and care for plaintiff. By undertaking to perform these services, defendant binds himself to the exercise of due care in their execution, irrespective of compensation. Plaintiff’s Count Three, therefore, alleges facts which give rise to a duty, breach of that duty, and injuries as a proximate consequence.” (Standifer at p. 438.)