Andy Taylor’s seven-year-old son Opie discovers the fireworks his father bought for Independence Day. He starts shooting her in a field behind her house. But Opie can’t extinguish one of the matches, which sets the dry grass on fire. Opie tries to stamp it out, but fails. Frightened, he flees. The fire continues to grow and spread across the field to a nearby lumber yard. The fire consumes – and destroys – the lumber yard. Its owner tries to get someone to react, but understands that young boys lack the assets to satisfy a judgment against them. The owner of the lumber yard is considering suing Andy instead. Is he liable for his son’s negligence?
Perhaps. As early as 1872, the Texas Supreme Court ruled that the parent-child relationship in itself does not hold parents liable for the illicit acts of their underage children. Instead, the children – and the children alone – are usually liable for their own crimes. However, there are several exceptions to this rule, depending on whether the child caused property damage or personal injury.
When are parents liable for property damage?
Texas has a law that regulates parents’ liability for property damage caused by their children. According to Section 41.001 of the Family Code “[a] A parent or other person with a duty to control and adequately discipline a child is liable for any property damage directly caused by: (1) the negligent behavior of the child if the behavior is reasonably due to the negligent failure of the parent or another person is the person who exercises this duty; or (2) the willful and malicious behavior of a child who is at least 10 years old but not yet 18 years old. “
The first point of Section 41.001 requires evidence that both the child and the parent acted negligently. Negligence is failure to exercise reasonable care and the standard of care for a child is based on their age. Children under five years of age are not subject to any standard of care; they are not negligent by law. Children between the ages of five and fourteen are usually cared for by a child’s standard, that is, what a reasonably prudent child would or would not have done in the same or similar circumstances. Children between the ages of 14 and 18 are looked after in the same way as adults. The plaintiff not only has to prove that the child was negligent, but also that the parent negligently carried out his duty to control and adequately discipline the child.
However, the second prong of section 41.001 imposes strict liability on both parents. The plaintiff only needs to prove that the child’s acts were “willful and malicious” (that is, willful) and that the child was between ten and eighteen years old when they committed those acts. Courts have ruled that the second prong does not require evidence that the parent knew about their child’s actions or dangerous tendencies. The second aspect also does not require evidence that the parents neglected their authority over the child. In addition, the second prong of section 41,001 places strict liability on both parents, whether they have custody of the child or the ability to observe, control, or discipline the child.
Compensation under the second prong of Section 41,001 is limited to $ 25,000 per incident plus court costs and reasonable attorney fees. But damage under the first tine is not limited.
In our hypothesis above, Opie did not intentionally and maliciously set fire to the field and lumber yard. It was an accident. To recover, the owner of the Lumbalyard had to demonstrate that both Opie was negligent with fireworks and matches, and Andy failed to control and properly discipline Opie.
When are parents liable for personal injury?
Since Section 41.001 only addresses property damage, customary law continues to regulate the liability of parents for personal injury caused by their children. And under common law, parents are only liable in four limited situations.
- The parents are liable if the child acts as an agent. A representation relationship exists when one person (the agent) agrees to act on behalf of another person (the client) and is under the control of the client. In one case, the court ruled that a mother was liable for the damage caused by her underage daughter’s car accident because the daughter chauffeured her mother to a department store to buy shoes for her brother. Since the daughter drove the car at her mother’s insistence and in favor of the mother, the court found that an agency relationship existed.
- The parents are liable if they guide, support or encourage their child to commit the illegal act. In one case, the court ruled that a father was held liable for the death of a neighboring pig because the evidence showed that his sons were acting on his instructions.
- Parents are liable if they fail to hold back a child they know or have reason to believe has dangerous tendencies. Parents must be able to foresee the danger their child poses to third parties. The decision as to whether a duty to protect the child should be imposed is a complex weighing test in which there are no lines of light. Courts take into account a number of factors including (1) the parent’s knowledge, consent, sanctioning, or participation in the child’s activities; (2) the degree of increased risk from the child and; (3) the extent of the parent’s burden in protecting against this risk.
- Parents are liable if they entrust dangerous acts to their child. Parents are obliged to “refrain from the facility” [their] Child an instrument which, by its nature, use and purpose, is so dangerous that in the hands of a child it presents an undue danger to others, and it is also the duty of the parents[s] take positive action to prevent the child from receiving and using them. ”For example, in one case a mother left her son and another boy in the back seat of a moving car. The children managed to put the car into gear, jump the curb, hit a pedestrian, and crash into a building. The court found that the mother negligently left the children in the car and is therefore liable for property damage and personal injury.
Tilt the scales in your favor
Control and discipline your children appropriately. It’s good for you – and your wallet.