Liability and compensation for games

Questioner

When entering a (children's) birthday party, I wanted to pick up the birthday boy (look how high I can jump mom). On the third count I wanted to pick him up under his armpits as if he were jumping really high. However, he already jumps at 2 and hits my front teeth. However, I have implants, and 1 breaks off, and 1 is now loose. We reported this to the insurer as this is a rather expensive procedure. However, the insurer's answer was: ... In principle, the parent(s) are liable for the unlawful conduct of their children. However, in order to be liable for damage, our insured must be responsible for unlawful or culpable conduct. This is not the case. You were playing/wrestling with 6-year-old XXXX. The game was that XXXX jumped up and you lifted him up even higher. At one point, XXXX hit your face when jumping up. However, this is the risk of the game you are playing, in which there can be no question of culpable conduct. When parties play/wrestle with each other, they also know that damage can occur. If damage occurs to one of the parties involved during a game, this is more likely to be the result of an unfortunate combination of circumstances than of culpable conduct or action... So now I don't get any reimbursement and I have been walking around with broken implants for some time now because I can't afford this myself. Is the insurer's response correct? Or can I still recover the damage...

Lawyer

Formally, the insurer is right. Especially since it concerns a small child, it will not be quickly assumed that it concerns culpable conduct. That is why many liability insurance policies include that a payment will still be made in sports and games situations. I therefore advise you to read the policy conditions carefully.

Lawyer

It is a bit more nuanced. In order to assess whether the parents are liable, the child's behavior, jumping too early, must be assessed as if the child were an adult. The fact that the behavior is that of a child does not make the behavior any less likely to be blameworthy. In this case, the insurer's position that there is an unfortunate coincidence has a chance of success. You do not have a strong case.