A court has ruled that a babysitter who brought a 4-year-old child to a swimming lesson in Busan, where the child subsequently drowned, had a "duty of care based on common sense" to keep an eye on the child.

The duty of care based on common sense refers to the level of diligence naturally required under specific circumstances and societal norms, even if it is not explicitly specified in laws or contracts.

Judge Jang Ki-seok of Criminal Division 7 at the Busan District Court announced on September 8 that he has suspended a 2 million won fine for a woman in her 20s of Kazakhstani nationality, identified as A, who was indicted on charges of professional negligence resulting in death.

A suspended sentence is a system that recognizes the establishment of a crime and guilt, but defers the sentencing of punishment by taking into consideration the degree of the offense and extenuating circumstances.

A was put on trial for failing to fulfill her duty of care regarding the accident in February 2023, when 4-year-old B, whom she was babysitting, drowned at an apartment swimming pool in Busanjin-gu, Busan.

A put a swimsuit and auxiliary flotation gear on B, sat on a chair by the pool with earphones on, and watched videos on her smartphone. She only realized the accident occurred after B had been rescued.

B had been playing in the water with another child during the swimming lesson when his auxiliary gear got caught in the swimming pool ladder, preventing him from getting out of the water for about 2 minutes and 44 seconds, resulting in his death.

Due to this accident, the swimming instructor was sentenced to one year in prison suspended for two years in the first-instance trial last year, and the swimming pool safety management team leader was fined 5 million won.

The core issue in this trial was whether A also had an obligation to watch B during the swimming lesson.

A's defense argued that her babysitter contract was limited to accompanying the child to and from swimming lessons, and did not include the duty to protect or monitor him during the class.

B's guardian also stated during the investigative agency's probe that they had told A, "You can just wait while looking at your phone until the class is over."

The court accepted the argument that there was no contractual obligation to monitor and protect.

Judge Jang stated, "It is determined that the duties under the babysitter contract did not include the obligation to observe or protect the victim child during the class or lesson."

However, Judge Jang ruled that, separate from contractual obligations, A had a "duty of care based on common sense."

Judge Jang stated in the ruling, "When a babysitter takes charge of commuting to and preparing for a swimming lesson that carries inherent risks on behalf of the guardians and stays at the swimming pool, there is a duty of care based on common sense to observe from an appropriate position whether the victim child is swimming safely and to prevent safety accidents."

Nevertheless, Judge Jang explained the reason for the suspended sentence by taking into consideration factors such as "the degree of violation of the duty of care being relatively minor compared to other related parties, and the victim child's guardian not actively desiring the punishment of the defendant."

(Photo: Yonhap News)