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60. In a suit brought on the child's behalf against the day-care center and based only on the facts above, who is likely to prevail?
A bright 12-year-old child attended a day-care center after school. The center was located near a man-made duck pond on the property of a corporation. During the winter, the pond was used for ice-skating when conditions were suitable. At a time when the pond was obviously only partially frozen, the child sneaked away from the center's property and walked out onto the ice over the pond. The ice gave way, and the child fell into the cold water. He suffered shock and would have drowned had he not been rescued by a passerby. At the time of the incident, the pond was clearly marked with numerous signs that stated, «THIN ICE—KEEP OFF.» When the child sneaked away from the day-care center, the center was staffed with a reasonable number of qualified employees, and the employees were exercising reasonable care to ensure that the children in their charge did not leave the premises. There had not been a previous instance of a child coming onto the corporation's property from the day-care center. The jurisdiction follows a rule of pure comparative negligence.
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A is incorrect. Day-care centers are not strictly or absolutely liable for all injuries that occur to children under their care. The center's negligence must be established. Under the facts as described, there is no evidence of lack of reasonable care, and the day-care center will prevail.
B is incorrect. The mere fact that the center is located near a pond is not in itself evidence of negligence. It might mean that reasonable care requires extra-vigilant supervision, but the facts specify that the center staff was in fact exercising reasonable care. Accordingly, the day-care center will prevail.
D is incorrect. This answer correctly concludes that the day-care center will prevail, but it misstates the reasoning for that conclusion. The child's status as a trespasser would only be relevant in litigation against an owner or possessor of land, such as the corporation. Under the facts as described, there is no evidence of lack of reasonable care, and the day-care center should prevail for that reason.