01 Dec All in the Family: A Parent’s Liability for Torts Committed by the Child
The relationship between parent and child is one of devotion and responsibility. Even in the most extreme circumstances, there is little that a parent would not voluntarily do for his or her child. However, what would a parent do for the person who was injured or who suffered property damage at the hands of the child? In such a case, the answer may not necessarily be up to the parent.
Historically, common law tradition asserted the premise that a mere parent-child relationship was not sufficient grounds to impose liability upon the parents for the torts committed by the child. However, despite the long-standing common law, some states, including Florida, California, and Texas, have enacted statutes that impose liability on the parents for the tortious acts of the child.
These parental liability laws were presumably enacted in an effort to compensate the victims of torts committed by children, but perhaps also to encourage parents to better discipline their children. While the latter justification may be disputed, the result remains the same in states that have enacted such laws—parents may be held liable for the torts committed by their children.
Similar in form to the vicarious liability of an employer for the acts of the employee, the parents are held legally responsible for the harmful conduct of their children despite having played no active role in the tortious behavior. Moreover, these laws apply to acts committed by children living with their parents who have not yet reached the age of majority, which is 18 years old in most states.
In order for the parental liability laws to be implicated, the minor children must generally engage in conduct which is more egregious than mere negligence. For example, under California’s parental liability law, the minor child must commit an act of “willful misconduct.” A child must act maliciously or willfully in order to trigger the parental liability statutes in Arkansas and Florida, while the Oregon statute requires an intentional or reckless act.
Parental liability laws also tend to differ from state to state in terms of what type of damage or harm must occur before the potential for parental liability is implicated. The laws typically differentiate between damage to property and injury to people. For example, the Florida, Texas, and Arkansas statutes operate to impose liability upon the parent in the event of damage to property, whereas the California and Oregon statutes apply in cases of damage to person or property.
Another area where these statutes tend to differ is in the actual amount of liability which may be imposed upon the parent. While Florida’s statute does not contain an express limit on the amount of damages which can be recovered against the parent, other statutes do. The statutes in Texas and California, for example, provide that the liability of the parent shall not exceed $25,000. Oregon limits the liability of the parent to $7,500, while Arkansas caps the amount at $5,000.
While many of the parental liability statutes share some traits, some of the statutes have unique characteristics. For example, in order for a Texas parent to be held liable for their child’s willful and malicious conduct, the child must be at least 10 years of age but less than 18 years of age. In Oregon, the parental liability statute expressly does not apply to foster parents. And in California, the statute makes the parent jointly and severally liable along with the minor child. Thus, although parental liability statutes tend to be similar in purpose, they vary, sometime significantly, in specific applicability. Therefore each state’s statute must be examined in order to determine the precise implications in any given jurisdiction.
It is important to note the distinction between the vicarious liability of a parent under a parental liability law and the direct liability of a parent in the absence of such a statute. Under a vicarious liability theory, the parent is found liable on the basis of the relationship alone rather than on the culpability of the parent’s behavior. Under a direct liability theory, the parent is liable to the extent his or her own actions contributed to the damage, such as in the case of a parent who lets an intoxicated child drive the family automobile. Parental liability laws do not generally impact the possibility of a parent’s direct liability under a traditional negligence theory, which means that a parent may still be found liable for his or her own actions even if the applicable state law does not contain a parental liability statute.
While it can be fairly assumed that parents will always try to prevent their minor child from causing injury to person or property, even in the absence of a parental liability law, it is important for the parents to understand to potential risk exposure that may result from the actions of their children. By knowing the risk, parents can adjust their behaviors, as well as their protections, accordingly. One such adjustment may be insuring against the potential liability. In some cases, a homeowner’s insurance policy may cover claims resulting from a child’s acts even if the act took place away from the residence.
To learn more about the possibility of insuring against damages resulting from the acts of a minor child, contact us.