Parental Duty In General

Under California tort law, parents have a duty to supervise and control their children. (Williams v. Garcetti (1993) 5 Cal.4th 561, 571-572, fn.7; see also Costello v. Hart (1972) 23 Cal.App.3d 898, 899-901, finding duty and reversing nonsuit in favor of defendant grandmother where her four year old grandson ran out from underneath a clothes rack in a store and tripped plaintiff; Ellis v. D'Angelo (1953) 116 Cal. App. 2d 310, 312, 317, 320, finding complaint stated cause of action for negligence where it was alleged that: (1) that four-year-old child shoved and pushed the plaintiff "violently to the floor" and (2) defendant parents knew that child habitually engaged in violent conduct and failed to warn plaintiff, who had been hired to act as a babysitter).

However, there must be the manifestation of specific dangerous tendencies to trigger a parental duty to exercise reasonable care to control the minor child in order to prevent harm to third persons. (Hoff v. Vacaville Unified School District (1998) 19 Cal.4th 925, 934-935.) This duty is based on section 316 in the Second Restatement of Torts, which states:

“A parent is under a duty to exercise reasonable care so to control his minor child as to prevent it from intentionally harming others or from so conducting itself as to create an unreasonable risk of bodily harm to them, if the parent

1. knows or has reason to know that he has the ability to control his child, and
2. knows or should know of the necessity and opportunity for exercising such control.”

The Restatement Illustration

“1. A is informed that his six-year-old child is shooting at a target in the street with a .22 rifle, in a manner which endangers the safety of those using the street. A fails to take the rifle away from the child, or to take any other action. The child unintentionally shoots B, a pedestrian, in the leg. A is subject to liability to B.”

Section 1714.1(a) states that any act of willful misconduct of a minor that results in injury or death to another person shall be imputed to the parent for all purposes of civil damages, and the parent shall be jointly and severally liable with the minor for any damages resulting from the willful misconduct. As noted above, California common law holds parents responsible for harm caused by their children only when it has been shown that the parents, as reasonable persons, previously became aware of habits or tendencies of the child which made it likely that the child would misbehave. (Reid v. Lund (1971) 18 Cal. App. 3d 698, 702) Section 1714.1, by making parents financially liable for the conduct of a minor, is in derogation of the common law and, accordingly, should be strictly construed. (Cynthia M. v. Rodney E. (1991) 228 Cal. App. 3d 1040, 1046.)

As originally enacted, parental liability statutes were intended to make parents legally responsible for the tortious acts of their minor children and were generally aimed at acts of juvenile delinquency, vandalism and malicious mischief. (Id. at 1044.) For example, the original version of section 1714.1 enacted in 1955 was limited to property damage. (Id.) The statute was amended 10 years later to make parents liable for personal injuries as well as property damage willfully caused by their children and to increase the maximum liability to $500. (Id.) Subsequent amendments increased the maximum liability, added a section dealing with defacement of property, extended liability to guardians as well as parents, and restricted liability to parents and guardians who have custody and control of the minor. (Id.) The 1983 amendment also included the following language:

“This act is part of the Crime Victim Restitution Program of 1983 in that it increases the ability of victims of juvenile crime to obtain restitution by doubling parental liability for crimes committed by minors.” (Id.)

Claims Under Parental Liability for Negligence Supervision

“While it is the rule in California . . . that there is no vicarious liability on a parent for the torts of a child there is ‘another rule of the law relating to the torts of minors, which is somewhat in the nature of an exception, and that is that a parent may become liable for an injury caused by the child where the parent’s negligence made it possible for the child to cause the injury complained of, and probable that it would do so.’” (Ellis v. D’Angelo (1953) 116 Cal.App.2d 310, 317.) Specifically, parents can be liable for their minor child’s torts if they knew or had reason to know (typically, from past conduct) that it was necessary to control and supervise the child to prevent future harm to others and they failed to exercise reasonable care to do so. (See, e.g., Singer v. Marx (1956) 144 Cal.App.2d 637, 646, holding that evidence of the mother’s knowledge of her child’s prior habit of rock throwing was sufficient to present a jury issue as to her negligence, but evidence was insufficient as to the father who had no personal knowledge of prior rock throwing).

To prevail on a claim for parental liability for negligent supervision, Plaintiff must establish:

1. that Defendants were aware of the minor’s habits or tendencies that created an unreasonable risk of harm to other persons,
2. that Defendants had the opportunity and ability to control the conduct of the minor,
3. that Defendants were negligent because they failed to exercise reasonable care to prevent the minor’s conduct or take reasonable precautions to prevent harm to others,
4. that the plaintiff was harmed, and
5. that Defendants’ negligence was a substantial factor in causing the alleged harm.

CACI No. 428.