Parents Liable for Child’s Actions

Having a child is a joyous event. It is also the event that keeps on giving. Giving in the parent-child relationship involves many facets, not the least of which is an estimated $389,000 by the parents of a middle-class family to raise a child from birth to adulthood.

Sometimes the child gives a parent something unwanted. The unwanted gift can be something more expensive than an ugly sweater or personal item. It can be liability created by the action of the child.

Florida has long recognized that at common law, a parent is not vicariously liable for actions of a child. But there are exceptions.

The first exception is when a parent entrusts the child with a dangerous instrumentality. A dangerous instrumentality is something which is so inherently dangerous misuse or even regular use may cause significant harm to others. Motor vehicles, boats, airplanes, heavy machinery, firearms, and knives are all classified as dangerous instrumentalities by Florida courts. If a child hurts anyone with a dangerous instrumentality, the parent has liability. Parents should think about that when adjusting their car insurance to include a teenage driver in the car insurance.

The second exception is when the child harms a person or property while acting as a servant or agent of the parent. That means when a child is on an errand or activity at request of the parent, the parent can have liability if the child hurts someone or damages someone’s property.

The third exception is when the parent knows of a child’s wrongdoing and has directed the child to do something harmful or consent, approves, encourages, or ratifies that act.

The fourth exception is when a parent knows or should know the child has a propensity to cause harm and fails to take action to control the child. In those cases, the issue revolves around knowledge of the parents. The 1955 case of Gissen v. Goodwill is interesting in how the court defined knowledge.

Gissen was decided by the Florida Supreme Court. In that case, the child slammed a door on a hotel employee’s hand, severing a finger. The employee sued the parents and introduced much evidence of how the child harassed and disturbed others in the hotel, knocked over and damaged furniture, and hit other guests and employees. Gissen lost because the court said he had no evidence of slamming doors. Even though the child seemed to be a hellion, Gissen’s failure to show the child had a history of the particular action causing injury meant the parents got off the hook of liability. The court found no evidence the parents knew the child had a door slamming history.

Thirty years later, a lower appellate court in Florida found fault with the Gissen decision but was bound to follow it. In Snow v. Nelson, 14-year-old Mark Nelson hit Randall Snow in the eye with a croquet mallet resulting in loss of the eye. The Snows sued Mark’s parents and established they were well aware that Mark was rough, often pushing and hitting other children. They had no proof the parents knew of a proclivity to hit others with a croquet mallet. The Snows lost.

Florida’s legislature did not like the Gissen case and the year after adopted what is now Section 741.24 Florida Statutes. That statute makes parents liable for property damage resulting from their child’s maliciously or willfully destroying or stealing property. Recovery is limited to actual damage and attorney fees are not included as part of recovery. No evidence is required of the parent’s knowledge of the child’s action in any way or of the child’s propensity for the action. It is strict liability.

Lawsuits under the statute tend to turn on whether the child’s action was malicious or willful. In other words, the damage has to be caused by an intentional act and not carelessness or negligence for a parent to be liable. There is no comparable statute addressing personal injury caused by a child.

The common law still has parental immunity. The legislature appears to believe parents have enough problems without being liable for everything a child does.

Common law carved out four exceptions to parental immunity for a child’s action for special circumstances. The legislature added a fifth exception. None of these cases include attorney fees to the winner, so even when liability might be established, the attorney fees and costs of pursuit can dissuade lawsuits.

Parents are automatically liable for property damage intentionally caused by their child, but not so for other damage. To hold parents liable for other damage or personal injury by their child, the injured person must meet one of the common law exceptions.

Good news for good parents, with exception of intentional property damage, good parents are off the liability hook for almost everything their child does except motor vehicle accidents. As sad as it may seem, bad parents are protected as well in most cases.