“Not My Child”

Parents like to brag about their children, and why not? If someone does something good, kudos are earned. It is not unusual for a parent to delightedly exclaim “That’s my daughter” or “That’s my son.” But sometimes parentage becomes liability, and the parent claims “not my child” to mean the parent’s child would not or did not do something bad. 

Good news for most parents is that parents are not guarantors their children will not act badly or cause damage. Florida law does not automatically make parents liable for acts of their minor children, but there are exceptions. 

The easiest exception to understand is the dangerous instrumentality rule, which applies to create liabilitywhen anyone entrusted another with a dangerous instrumentality. A dangerous instrumentality is anything which can cause substantial injury if used carelessly or improperly. Examples include motor vehicles, boats, airplanes and guns. When a person entrusts another with a dangerous instrumentality and the possessor negligently hurts someone with it, the owner has liability. 

When a minor child is involved, the test for liability is whether the parent was negligent in giving the child an instrumentality which, because the child was young or inexperienced, could be a danger to others. That could expand the list of dangerous instrumentalities to include those which solely because of the youth or experience of the child the item is dangerous and would not be considered dangerous in the hands of an adult. A motorized skateboard could be such an item. 

When a child causes damage with a dangerous instrumentality, the parent is liable as if the parent caused the damage directly. That may be a real shock for a parent who has given a child anE-bike or motorized scooter and allows the child to operate without any supervision.  

A parent can also be liable when the parent knows a child will or has done something harmful and either allows it, directs the child to do and/or approves it. An example could be when a parent is unhappy with the way a child is being defended during a basketball game and directs the child to punch the other child. I was actually present at a game when that took place, but fortunately for the parent, the injuries were minor. 

When a parent has the ability to control the child and the child is going to do something harmful, the parent has liability if the parent does not exercise sufficient care or control. This is most often applied in the circumstances where a parent is aware a child repeatedly engages in certain conduct. That was the case in Wyatt v. McMullen. 

In the Wyatt case, eight-year-old Robert Henley shot Mark Wyatt in the eye with a BB gun. The BB gun was owned by six-year-old Robert McMullen. The McMullen boy’s parents allegedly knew that Robert Henley repeatedly used the BB gun in a dangerous and negligent manner without adult supervision. Because the McMullen boy’s parents allowed such action to continue, they were held liable same as parents. The court explained that under the circumstances, the McMullen boy’s parents were acting in the capacity of parents when they allowed continued negligent use of the BB gun by Robert Henley. In these cases, liability is based on negligence of the parent (or someone acting in capacity of a parent for purposes of the case) and not strictly a liability for a child’s actions. 

The Wyatt court explained Florida courts have adopted the doctrine ofin loco parentis, which means one who voluntarily accepts and exercise duties of a parent to someone else’s child. Under that doctrine, there is no difference in liability between a parent and a non-parent with respect to action of a minor child. 

In 1956, the legislature adopted a statute which makes a parent liable for a child’s damage to or theft of property of a city, county, school district or department of Florida. However, liability is limited to the parent with whom the child was living at the time of the wrongdoing. 

If a parent does not have legal authority to control a child, the parent is not normally liable for the actions of the child. That includes children who have been emancipated and children who have reached 18 years of age. Lacking ability to control a child does not excuse a parent from liability under the dangerous instrumentality doctrine or when the parent is complicit in the act causing damage. 

Attorney fees are not usually recoverable in lawsuits to impose liability on the parent for actions of a child. That can be a disincentive to suit, but not a bar. As damages increase, the likelihood of suit follows. Parental control of children is not only socially desirable, it is also in the best financial interest of the parents. Unfortunately, not all parents feel either is sufficient reason to exercise parental control.