Are you liable for your child’s actions?


Many clients want to know if they are liable for the acts of their children.  Let’s explain the various exposures related to parental liability as well as the  grounds  on  which  such  claims  can  be brought.

Parents can be held liable for the acts of their children based of statutes, common law, or contractual agreements.

STATUTES, LAWS AND ORDINANCES

Parental Liability Statute – Civil

Under Michigan law, parents are strictly liable in a civil action for the willful or malicious acts of their children that result in property damage  or  physical  injury,  not  to  exceed $2,500.  Even  though  the  parent  might  not have done anything wrong, they are still accountable for the damages merely by virtue of their parental status.

In order for the statute to apply, the plaintiff must establish a number of elements.

First,  the  act  must  be  willful  and  malicious, which means that the child must have specific intent to cause the damage.  Courts have held that a mere act of negligence on the other hand is not necessarily willful and malicious. In Thelbert McKinney v Edward Caball, 40 Mich App 389, 391 (1972), the Michigan Court of Appeals held that, with respect to vehicle accidents, a teenage driver must be driving at a high rate of speed, or in any manner other than that which might have been ordinary and usual in order for their actions to be willful and malicious; merely taking the family car without permission does not qualify.

Second, the statute only applies to physical harm or injury. Injury to reputation or other non-physical injuries are not recoverable. In Guerrero  v  Farmer,  2004WL2389453 (MichApp), a child falsely accused her step-father of abuse.  After  recanting  her  accusation,  the step-father brought suit against the child for defamation. The stepfather then attempted to collect a portion of the judgment from the child’s    biological    mother    under    MCL 600.2913.  In  an  unpublished  opinion,  the court ruled that MCL 600.2913 did not apply to the stepfather’s non-physical injuries and that he was ultimately unable to collect from the biological parent.

Finally, the statute points out that parents are only liable for those children that are living with them. For example, if a 17-year-old child moves out of his or her parent’s house to live with a friend, arguably the parents are no longer  liable  under  this  provision  of  the statute. We should note that although MCL 600.2913 creates statutory parental liability, it also serves to limit that liability to $2,500.

Parental Restitution Statute – Criminal

The Michigan Probate Code governs criminal actions   involving   minors.   MCL   712A.30, allows a court to impose restitution on a juvenile in addition to any other penalties including confinement. It is important to note that this juvenile restitution statute only applies to a “juvenile offense” which is defined as a violation by a juvenile  of  a  penal  law of the State of Michigan or a violation by a juvenile of an ordinance of a local unit of government of this state punishable by imprisonment or by a fine  that  is  not  a  civil  fine.  Note  that  the statute does not apply to civil proceedings or tort liability.

In People v McEvoy, 267 Mich App 55 (2005), the Michigan Court of Appeals held that the juvenile restitution statute can be enforced against a child’s parents. During the early morning hours of April 8, 2002, 15-year-old Sean   McEvoy   broke   into   Howell   High School, vandalized the school and set several fires. The fires activated the automatic sprinkler system, which extinguished the fires, but the sprinkler system was on for several hours before the police and fire department arrived, which caused extensive water damage in the school.  Within a matter of days, Sean was arrested in connection with the fire and charged with various criminal offenses. Under a plea agreement, Sean admitted several charges against him, including arson of non- dwelling real property, MCL 750.73, and malicious destruction of personal property, MCL 750.377a(1).

Following the fire, the school district hired contractors  to  clean  up  and  refurbish  or replace  damaged  equipment  and  furniture. The property insurer for Howell Public Schools paid out $744,195.47 in claims to compensate the school district for its costs related to the fire. The insurance carrier then filed  a  petition  for  restitution  in  the Livingston County Circuit Court (family division), seeking reimbursement from Sean and his parents for the property damage paid under its policy with the school district.  The court  ordered  that  Sean  pay restitution  of $715,581.49.  The  court  further  determined that under MCL 712A.30(15) the parents were also liable for full payment of restitution to the insurance company.

COMMON LAW CAUSES OF ACTION

Parents  are  exposed  to  a  host  of  other lawsuits arising out of their acts and omissions as a parent. Under the Parental Liability Statute and the Parental Restitution Statute described above, parents are “vicariously” liable for the acts of their children. This means that the parents do not necessarily have to do anything wrong in order to be held liable. Common law causes of action can be distinguished in that the parental liability arises from the parent’s act or omission rather than the child’s action.

Negligent Supervision

In the simplest form, an injured party could bring a suit against a child’s parents under a theory of common law negligence. The plaintiff would have to show that the parent had a duty to monitor their child, that the parent failed to monitor that child, that as a result of that failure the child caused injury or damage, and that the plaintiff suffered injury. This is sometimes referred to as the negligent parental supervision theory.

In Zapalski v Benton, 178 Mich App 398, 402- 403 (1989) a teenage girl was assaulted by a boy. She brought suit against the boys parents alleging negligent supervision. She argued that the parents had the ability to foresee the boy’s assaultive conduct.

In Amer States Ins Co v Albin, 118 Mich App 201,  206  (1982),  following a  fight  between two minors, one of the children brought suit against the other boy’s parents alleging negligent supervision of their violent son.

In Muma v Brown, 378 Mich 637 (1967), the 3- year-old plaintiff sustained injuries when he was struck by automobile driven by a 14-year- old. The plaintiff brought suit against the minor’s parents arguing negligent supervision.

Thus, a parent is liable if the parent fails to exercise  reasonable   care  to  prevent  their minor child from intentionally harming others when the parent knows or has reason to know that this care is necessary with their child, and the parent has had an opportunity to exercise control  over  the  situation. A  parent  is  not liable where supervision would not have made the parent aware of the child’s tortious propensities.

Parents could also face claims related to negligent entrustment.

Negligent Entrustment

A negligent entrustment claim has three elements: (1) a person relinquishes control of a dangerous instrumentality to another; (2) the first person knows or should have known that the entrustee (the child) is likely to use the instrumentality involving an unreasonable risk of harm to others; and (3) the injury must be caused by the entrustee.

Similar to claims of negligent supervision, a negligent entrustment claim might involve a gun entrusted to a child or an automobile entrusted to an inexperienced driver which poses an unreasonable risk of physical harm to the child or inexperienced driver and to others.

In  May  v  Goulding,  365 Mich  143 (1961), a local sheriff brought a lawsuit against the parents of a mentally ill child who used a rifle given to him by parents to shoot the sheriff after holding up a grocery store.

CONTRACTUAL AGREEMENTS

Parents can also assume contractual liability for  the  acts  of  their  children.  In  today’s society,   it   is   common   for   parents  and guardians to sign waivers of liability and hold harmless agreements pertaining to their children’s activities. Many of these agreements require the parent to indemnify some other party  for  the  acts  of  their  children  which cause injury or damage. For example, assume a  local  sports club requires that all  parents sign a waiver before allowing their minor children to use the club’s pool, playground, or other facility. This agreement likely contains at least two separate provisions that create contractual liability for the parents.

First, the parent is usually required to indemnify the facility for any property damage caused by their child. If the child throws a baseball through a glass window, it is the parent’s responsibility to pay for the damages.

Second, what most parents do not know is that these agreements also include an indem- nification provision with respect to lawsuits brought by their child against the facility for their injuries. For example, if the child slips and hits their head on the bottom of the pool, that child could bring a lawsuit against the facility. Since  a  parent  cannot  legally waive their child’s right to file a lawsuit and the child is not of sufficient age to enter into a binding contract, there is no way for the facility to prevent a child from bringing a claim. As a result,  most facilities  have  included  a provision which states that the parent will indemnify, defend, and hold the facility harmless for all claims brought by any of their children or guests.  In essence, the child ends up suing their own parent for the injuries.

CONCLUSION

Parents can be held liable for the acts of their children based on statutes, common law, or contracts. Since most, if not all, of these exposures fall within the purview of most insurance exclusions, parents need to consider the potential consequences, both financial and otherwise, arising out of the acts of their children.

 

For any of your personal or commercial insurance needs, please contact us.

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