Babysitter’s neglect leads parents, counsel to show danger of leaving children in cars

Ryan v. Akin, Haw., 1st Cir., No. 6-1-0110 (GJK), Dec. 12, 2007.

Tim and Deona Ryan underwent seven years of fertility treatment before their daughter Aslyn was born in 2003. One week after celebrating their daughter’s first birthday, however, the Ryans found themselves mourning her death. Aslyn died after suffering a heat stroke when her babysitter left her unattended in a hot car.

The babysitter, Shawna Akin, left Aslyn alone in a car on an 85-degree day for about 50 minutes while running errands in Oahu, Hawaii. Later in the day when Akin was back at home with Aslyn, Akin claimed she noticed that Aslyn was hot, limp, and gasping for air. She called 911 and Tim, telling him that Aslyn had simply become ill. In fact, Akin told no one—not even the doctors treating Aslyn—that Aslyn had been left alone in a hot car for almost an hour. Thus, when the paramedics arrived, they observed that Aslyn was unresponsive and exhibiting signs of dehydration and other distress but did not know why, resulting in a false diagnosis of “overwhelming infection.” Aslyn was taken to a hospital, by which time her body temperature had reached 106 degrees and she was suffering from brain swelling. Aslyn died two days later.

The Ryans first learned that Aslyn died of a heat stroke after an autopsy revealed “probable hyperthermia due to probable environmental exposure.” It was only months later when Akin admitted to having left Aslyn alone in the car that the mystery of how Aslyn suffered hyperthermia was solved.

There are no laws in Hawaii making it a crime to leave children unattended in cars, and only 12 states have such laws. It was thus not possible for the Ryans to file criminal charges against Akin, but with the help of AAJ member Mark S. Davis, of Honolulu, they filed a wrongful death suit against her. Davis offered to take the case pro bono because the Ryans wanted to pursue the lawsuit to call attention to the dangers of leaving children in cars. Davis says he was impressed by the importance of getting this message out and increasing public awareness and felt this would be most effectively accomplished by taking the matter to judgment.

The suit alleged that Akin consciously misrepresented to the Ryans that she was a licensed and approved childcare provider. Actually, the agency the Ryans consulted when they sought a babysitter—a U.S. Air Force family child care office—had terminated Akin’s license three months earlier, in part because of prior unexplained injuries inflicted on other children in her care. The agency failed to remove Akin’s name from its list of approved caregivers, however, enabling her to obtain employment with the Ryans. In addition to misrepresentation, the Ryans alleged that Akin breached her duty to exercise due care and supervision for Aslyn when she left her unattended in the car.

Akin moved to Wyoming shortly after Aslyn’s death, thus avoiding service, and never replied to the lawsuit. Davis emphasizes that the Ryans were not suing for the possibility of a monetary recovery, as Akin would not have the ability to pay, but instead wanted to expose the issue of vehicular hyperthermia, educate the public, and prevent other children’s deaths. “Even though they’ll never recover a dime, they are dedicated to this issue,” Davis says. The Ryans’ commitment to raising awareness about vehicular hyperthermia is evident by their actions. They founded a nonprofit organization, Hot Spot, which is operated through a community hospital in Tucson, Arizona, where they currently reside, and provides information about the dangers of leaving children alone in cars.

In December, a court entered a default judgment in favor of the Ryans for about $2.07 million. The significance of the judgment is not the amount, but that it got the attention of the media and the public, notes Davis. People are unaware of the risk of leaving children in hot cars, and are therefore careless, he says. “Through our [firm’s] representation of the family, others learned about the importance of the issue and the ability to use the civil justice system to raise public awareness and prevent unneeded deaths of children.”

Two days after the judgment was handed down, the Ryans met in Honolulu with members of Governor Linda Lingle’s office to support the legislative efforts already in progress to criminalize leaving children unattended in cars and to ask for the governor’s support in educating the community on the dangers of doing so. Deona says that community education is very important for her and Tim. “We hope that by doing this, no one else has to suffer the pain that we have by the loss of our daughter to something that is completely preventable.”

MELISSA C. HEELAN

Comment: Hot Spot can be accessed through Tucson Medical Center’s Web site, www.tmcaz.com.