General Rule — No Liability
The general rule for responsibility for the act of a minor child is that parents are not responsible. The Court has written, “traditionally, under the common law, the mere fact of a parent-child relationship was not a basis for vicarious liability.” Hagerty v. Powers (1885) 66 Cal. 368. In Hagerty, a case from 1885, an eleven-year old boy shot and wounded another child. The plaintiff pleaded that the father “willfully, carelessly, and negligently suffered, permitted, countenanced, and allowed” his minor child to handle a pistol. Despite those words, the Court still found that the parent was not financially responsible for his son’s actions. However, there are several exceptions to the above rule which will be discussed below.
Agent and Principal
At common law, parental liability for a child's tort was imposed only when there was an agency relationship. Kallenberg v. Long (1924) 68 Cal. App. 317. A parent is liable for the acts committed by their child when that child is acting within the course and scope of a relationship built on an agency theory. Van Den Eikhof v. Hocker (1978) 87 Cal. App. 3d 900. Essentially this boils down to a factual inquiry as to what the child was doing at the time of the tort. The best example of something like this is when a parent asks their child to go to the store to oick something up for them. The child at that instance is under the control and direction of their parent. As such the parent is responsible for the child as an employer is for an employee. The parent is then responsible for the actions of their child.
Knowledge of Prior Misconduct
A parent may sometimes be considered liable for an injury caused by their own child where the parent's own negligence made it possible for the child to cause the injury. Robertson v. Wentz (1986) 187 Cal. App. 3d 1281. In Robertson, the Court stated that, “the ability to control the child, rather than the relationship as such, is the basis for a finding of liability on the part of a parent.... [T]he absence of such ability is fatal to a claim of legal responsibility.” Robertson, at 1290. In other words, the evidence must show that the parents had a duty as a reasonable person to restrain the child. To a certain extent this means, that there must be some sort of physical control present and notice that the child has a propensity to act in a certain way, i.e. whether it was foreseeable or not. This is not easily answered. The key to overcoming this hurdle is having plenty of evidence to demonstrate that the parent knew that their child could have committed the act in question.
Statutory liability exists in certain situations where the child engages in “willful misconduct.” Cal. Civil Code § 1741.1. This statute does not impute liability for ordinary negligence but where the act rises above negligence. The damages that can be awarded under this statute are also capped at $ 25,000.00. In order to understand this a little better the history behind the statute should be discussed. The staute was originally enacted to impose liability on parents for the acts of vandalism committed by children. These acts were usually limited to defacement of property or destruction of property. The statute has been re-drafted to impose liability on parents where bodily injury happens as the result of the child’s willful misconduct, as any act of willful misconduct committed by a minor that results in physical harm is imputed to the parent.
Willful misconduct versus ordinary negligence
Willful misconduct versus ordinary negligence can best be defined as the difference between accidently tripping a person and deliberately pushing that same person over. While that example is a bit extreme, it permits a person to imagine what an individual would have to find in order to impute liability to a parent. While liability is not always a given in these situations, it may be found. If you have been injured by a child, you should consult with a personal injury attorney in your state to discuss the finer points of liability.