January 1, 1900

The "American Dream": two people meet, get married, buy a home and have children. And naturally, with any life changing endeavor comes some measure of responsibility. However, in today's litigious society, with that responsibility may come liability, even with respect to raising children. Increasingly, the trend of society is to make parents accountable for the acts of their minor children. And, over the years, our courts have increasingly imposed liability, both criminally and civilly, on parents for the conduct of their offspring.

Warning: Proper Supervision Required

For instance, liability against parents has been found in cases where the parent's negligence made it possible for the child to cause an injury to another. Both the courts and the New Jersey Legislature have held that a parent may be liable for failure to exercise the power to control their child. This is true particularly when the parent knows or, in the exercise of due care, should have known, that injury could occur as consequence of the failure to control their child.

A not so uncommon example of parental liability arises from injuries suffered by a guest in their home when their child hosts a party in the absence of adult supervision. Parents can be sued under the theory of negligent supervision, and time and again, our courts are upholding verdicts in favor of the injured party. The courts have ruled that where there is a reasonably foreseeable risk of injury to a minor, those in the position of responsibility generally have a "duty" to take precautions to prevent such risks. Despite the parents' arguments that they should not be accountable for the child's conduct that occurs in their absence, the courts have found that it was the parents' absence which created the liability. As such, parents are charged with the legal "duty" to arrange for competent supervision of their children in their absence.

Statutory Responsibility

Similarly, other cases have taken the position that where a parent has knowledge of the vicious or destructive tendencies of the child, but fails to exercise reasonable measures to control the child, the parent is liable for their child's actions. In fact, the legislature has enacted statutes which not only make parents legally responsible for the tortious acts of their minor children but restrain juvenile delinquency, vandalism and malicious mischief.

For example, New Jersey's vicarious liability statute provides in pertinent part, that a parent or guardian of a minor, who injures school property, shall be liable for the amount of the damages together with costs of suit. Thus, where children damage school property, that child's parents are responsible for the full amount of the damages incurred by the school district for the damaged property.

Likewise, anyone having legal custody of a child under 18 years of age, but who fails or neglects to exercise reasonable supervision and control of the child's conduct, shall be liable in a civil action for any willful, malicious or unlawful injury or destruction of real or personal property of another.

While these statutes have been challenged on constitutional grounds, the courts have held that the statutes do not violate the Constitution. Courts have reasoned that it is the existence of the parent-child relationship which provides a rational basis for imposing liability, and such liability is a reasonable means to accomplish the purposes of compensation and deterrence. The state legislature contemplated that by the passage of such law, subjecting parents to vicarious liability for their children's willful and malicious acts would encourage parents to fulfill their guiding role in the upbringing of their children. It was through better parental supervision and guidance that the legislature sought to deter a child's delinquent conduct.

Potential Liability For "Kids Being Kids"

However, liability extends much farther than the malicious acts of known delinquents. Liability can arise against a parent for what many would consider normal childhood behavior. For example, parents can be held liable for the typical adolescent incident where one child harms another. In cases such as these, juries are asked to determine whether the parents had knowledge of the child's propensity which caused the injury. The jury considers evidence of whether the instructions, warnings, and punishments, which the child received from the parent, were sufficient and are finding liability where the parents knew or should have known of their child's propensities, but failed to control them.

Even A Hug Can Cost You

In one unusual case, a woman tried to hold parents of a four year old boy liable for injuries caused when the child "hugged" her. The woman sued the child's parents for personal injuries that she sustained when she fell while babysitting the young boy. The young boy approached the babysitter, clutched her with both arms below the knees and held her tightly. When released, the babysitter fell backwards injuring herself. At trial, the jury awarded damages to the babysitter as against the parents only on the theory was that the parents had an obligation to exercise reasonable care as to control their son and to prevent him from harming another. The trial court in exercising its discretion, entered a judgment in favor of the parents reasoning that there was no evidence upon which to base a claim that the parents breached their duty to control their minor child. Had there been the slightest evidence, the trial judge may have upheld the jury's verdict making the parents liable for damages as a result of a hug.

Check Those Insurance Policies

For years the legislature and courts have been holding parents responsible for the conduct of their children. However, today the practice seems to be evolving as parents are being assessed liability for any childhood action the courts deem deviant. Instead of a parent being concerned about having a sufficient reserve of diapers in the home, parents today must worry if they have sufficient insurance for their child's future conduct.

Patricia M. McIntire is an associate of Hill Wallack where she is a member of the Litigation Division and General Litigation Practice Group.