On May 10, 2011, in New Jersey Div. of Youth and Family Servs v. A.R., the Appellate Division reversed a trial Court’s finding that the act of leaving a 10 month old child on a rail-less bed with a sleeping 10 year old child, near a hot radiator, constitutes mere simple negligence. The Appellate Division reaffirmed the neglect standard in the seminal case of G.S. – i.e., that the acts must be more than simple negligence, but less than intentional, and that “willful and wanton” disregard of known risks is required to violate Title 9. In this case, the parent placed towels around the child – a clear sign he knew of the risk of a 10-month old being in a rail-less bed. The parent also failed to tell the 10 year old that the 10-month old was being put in the bed, thereby increasing the likelihood that the 10 year old would kick in her sleep and inadvertently move the baby out of the bed.
This case presents a difficult scenario for most parents. The child was placed in a bed near a radiator. Perhaps the parent figured the child would be safe if buffered by the towels. Would the average parent think their 10 month old would roll out of bed onto the radiator? Probably not. And the trial judge saw this as a case of mere negligence – not willful and wanton misconduct. That just goes to show that oftentimes, the outcome of these cases turns on the personal views of those deciding the case.