Your Indiana Lawyer: William Bill Hurst
Historically parents are not liable for damages to a person or for property caused by their child’s negligence. However, there were several exceptions to this common law rule. Indiana law generally imposes a duty on parents to supervise and control the activities of their children and in doing so to use reasonable care to prevent foreseeable damage to others. Restatement of Torts 316 provides “a parent is under a duty to exercise reasonable control so as to control his minor child is to prevent it from intentionally harming others or so conducting itself as to create an unreasonable risk of bodily harm of them, if the parent (a) knows or has reason to know that he has the ability to control his child; and (b) knows or should know of the necessity and opportunity of exercising such control.” As the age of the child increases the extent of the duty tends to diminish.
Unless expressly made liable by statute parents will not be vicariously liable merely because of the parental relationship. The four common law exceptions in Indiana to the general rule that a parent is not liable for the negligent acts of their minor child include:
(1) Here a parent entrusts a child with an instrumentality which because of the child’s of experience may be a source of danger to others,
(2) Where the child committing the tortuous act is a servant or agent of his parents;
(3) Where a parent consents, directs or sanctions wrongdoing; and
(4) Where the parent fails to exercise control over a minor child although the parent knows and with due care should know that injury to another is possible.
Wells vs Hickman, 657 N.E.2d 172 (1995). Thus the liability under all these exceptions is based upon a negligent act or omission of the parent or the parent’s direct control over the child which creates opportunity for a child to cause injury.These common law causes of action against a parent for the negligent or reckless actions of the child are distinct from strict liability claims under parental liability statutes. In Indiana and in many other states there are statutes which impose liability regardless of the parent’s negligent act or omission. Under Indiana Code § 34-31-4-1 a parent may be liable for more than $5,000 in actual damages arising from harm to a person or damage to property knowingly, intentionally or recklessly caused by the parent’s child if:
(1) The parent has custody of the child; and
(2) The child is living with the parent.
The Indiana statute was enacted to protect the injured party to ensure compensation where the wrongdoing minor is essentially judgment proof and there could be no recovery otherwise.
In the case of Econ. Premier Assur. Co. v. Wernke, 521 F. Supp. 2d 852 (S.D. Ind. 2007), a homeowner’s minor son struck another child in the jaw, breaking it. In that case the court found that the specific language of the homeowner’s policy barred such claims against the policy.
In another case a minor removed items from one neighbor’s van and stole a car, the neighbors filed suit seeking to recover for the damages they suffered. The Court found in favor of both neighbors, that the judgments were appropriate under the statute holding that parents were liable for damages arising from harm to property intentionally caused by their child. Hyman v. Davies, 453 N.E.2d 336 (Ind. Ct. App. 1983).
In addition to this “Limited Liability of Parents for Damages Caused by Child” statute, the State of Indiana enacted other statutes to protect motorists from irresponsible minors who may cause a motor vehicle accident and be uninsured or underinsured for the event. Under I.C. 9-24-9-4, “Minor applicants; liability of signers; cancellation of licenses and permits,” whoever signs an application for a permit or license for a minor agrees to be responsible “jointly and separately with the minor applicant for any injury or damage that the minor applicant causes by reasonable operation of a motor vehicle if the minor applicant is liable in damages.” When the minor applicant reaches the age of 18 the individual who signed the minor’s application is relieved from liability imposed by this law. Parents could also be liable for the negligent driving of their children if they negligently entrust a car to the child. Negligent entrustment of a car occurs when a parent has some actual knowledge that the child is in some fashion incapable of safe driving; for example, intoxicated. In the case of Stocker v. Cataldi, 483 N.E.2d 461 (Ind. Ct. App. 1985), several individuals were injured in automobile accident when an automobile driven by a minor child hit them. They brought an action against the child’s parents. The Court held that: the mother could not be found liable of theory of negligent entrustment absent knowledge of son’s intoxication on day in question but that father’s signature on financial responsibility duplicate learner’s permit was sufficient to permit father’s liability.
In Indiana if a juvenile is adjudicated as a delinquent the parents or custodian of the juvenile may be required to participate in many programs and will be held financially responsible for some of the services that are provided. These costs could include costs incurred by the County on behalf of the juvenile for attorneys, foster care, detention and counseling. If a parent fails to reimburse the county or fails to pay the fees required they could be found in contempt.
The general rule that parents are not responsible for the acts of their children was created in Haggerty vs Powers, 1885 66 Cal. 368. In that case an 11 year old boy shot and wounded another child. The parent allowed to handle a pistol. The Court found that the parent was not financially responsible for their son’s actions. In response to that case and cases like it, State Legislatures have gone into action. Parental responsibility acts have been enacted in almost every state in some form which makes parents and legal guardians obligated to pay for the misconduct of their children causing property damage, injury and vandalism. These statutes generally will create parental responsibility up until the time the child reaches the age of majority, which in most states is 18. Across the country the parent responsibility acts have monetary limits, although in some states there are no limits at all. Each state is unique in how it handles parental obligations for the child’s misdeeds and some states will create parental quasi-criminal penalties resulting in community service and the like if the child gets in trouble with the law. The parental responsibility laws in all 50 states may be seen here.
The Law Office of William W. Hurst, LLC is pleased to announce that William W. Hurst has again been named to the 2019 Edition of The Best Lawyers in America as a Personal Injury Litigation- Plaintiffs. Best Lawyers is the oldest and most respected peer review publication in the legal profession. Best Lawyers uses a…
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