In tort law, the law generally only holds one person accountable for their own actions. Reformulation (second) of unlawful acts §315. The reason for this is obvious: if tort law is to influence behavior, it should only be enforced where it has a deterrent effect. Usually one person has not engaged in bad behavior in which a third party has behaved badly. It therefore makes perfect sense that tort law does not hold any person responsible for the actions of third parties.
But as with most legal norms, there are exceptions. While there is generally no duty of care to prevent harmful acts of others, when a parent has the ability to prevent harm from a child and is aware of a case or encounter where such control should be exercised over the child, one parent can be held liable for negligence. Restatement (second) of unauthorized acts §316. See, e.g., Linder v. Bidner, 50 Other 2d 320, 270 NYS2d 427 (Sup. Ct. 1966). It appears that a parent has a responsibility to prevent foreseeable harm from a child under their control.
However, the law limits the scope of this liability. A parent cannot be sued for the illicit acts of their children under strict liability. It appears that failure to control a wild child does not constitute an “unusually dangerous activity”, so strict liability is implied. See, Restatement (Second) of Torts §519.
Compare this to the law of domesticated animals. The owner of a domesticated animal can be sued if he fails to control the animal that belongs to him with reasonable care. Restatement (second) of Torts 518. See e.g. Drake versus Dean, 19 cal.no. Rptr. 2d 325 (1993). However, the owner of such an animal can also be held strictly liable if he knows the animal’s propensity for malicious acts and is able to prevent the harm. Restatement (second) of unauthorized acts §509. The factors required to hold a pet owner liable for the illicit acts committed by their pet are very similar to the factors that the law takes into account when it comes to holding parents liable for their children’s acts of negligence .
It makes perfect sense that the considerations for these two areas of law are the same. The message that the law perpetuates is that when one is in control of something that can cause harm, be careful that it does no harm or is otherwise held liable.
However, it makes less sense why liability for children is limited to negligence, while the owner of a pet is liable both negligently and regardless of fault.
Simply put, why are you liable if you fail to take reasonable care to keep a generally tame house cat that has bitten someone in check, but not for failing to take reasonable care when you are generally tame Kid doing exactly the same thing? And if it is appropriate to hold the owner of the animal strictly liable, if he knows his animal’s propensity to cause harm, has the ability to control it but not, then why no strict liability applies if the animal is through one Child is replaced? This is indeed an obvious anomaly in tort law.
It can be argued strongly that there should be no difference. If the underlying purpose of this area of law is to ensure that a high level of care is applied when a person is knowingly harboring an actor capable of causing harm, then there should be no distinction between children and domesticated animals.
One suggestion as to the difference in treatment, despite the obvious parallels, is that the law impose a liability that discourages animal ownership more quickly than it does not create incentives for raising children. In fact, the law is constantly trying to encourage childbirth. See e.g., National Academies of Science, Engineering and Medicine 2016. Parenting issues: Support from parents of children aged 0-8. 107 (The National Academies Press, 2016 https://doi.org/10.17226/21868) (“Substantial federal financial support is intended for children and helps their parents to meet their basic needs.”)
Perhaps the law is less inclined to provide such animal-keeping incentives, especially given the current sentiment that actually suggests the country is suffering from an overpopulation of some domesticated pets. See e.g. Cty. by Cook v. Vill. from Bridgeview, 2014 IL App (1.) 122164, 8 NE3d 1275, 1278 (“the animal control problem … is both a local and a national concern. “
Therefore, the next time a court is faced with the question of harm caused by harmful children and / or animals under the control of a third party, the court should determine whether this strange (and possibly arbitrary) differential treatment of the in both cases where the underlying purpose of the two laws is nearly identical.
Perhaps there is no reason for the courts to address this anomaly in common law. Ultimately, claimants suing for harm caused by children can simply stick to their claims of negligence and may not need strict liability.
However, for those seeking clarity and coherence within common law, one should hope that the courts will have the opportunity to hear cases that allow for an explanation of these ideas, with observers either being given an explanation of why the two cases are so different treated, or a decision that says they shouldn’t be anymore.
Elliot Fuchs is a student at Georgetown University Law Center and editor of the Georgetown Journal of Legal Ethics. You can reach him by email at [email protected].