Sunday, September 27, 2020

Parents Have Limited Liability for Children

Law Matters


Florida inherited the common law of England and part of that law dealt with parent liability for their children. The common law of England provided parents were not liable for the wrongful acts of their children, even when they knew a child was likely to cause harm. The lack of liability seems to be based on the idea that a child acts independently and a parent should not be held responsible for the independent action of a child. The child would be personally liable for the child’s wrongful action, which usually meant a person harmed by a child had no recourse because the child had no assets with which to pay damages. The injured person could sue the child and get a judgment for what it might be worth, but the parent had no responsibility for the wrongful act unless the parent was actually involved. 

It took until 1955 for Florida’s Supreme Court to address this issue in the case of Gissen v. Goodwill. In that case, Julius Gissen filed suit against Mr. Mrs. Goodwill alleging their 8-year-old child willfully and deliberately slammed a door with such great force and violence” against Mr. Gissen that the door severed part of Mr. Gissens middle finger, which “fell to the floor.” Mr. Gissen’s claim was dismissed by the trial judge. On appeal, Florida’s Supreme Court agreed that Florida followed the common law rule that a parent is not liable for the action of a minor child.  

Mr. Gissen’s attorneys unsuccessfully argued cases from other states holding parents liable for wrongful acts of their children should be followed in Florida. The court explained those cases all involved acts which the child had a habit of doing and for which the courts in other states ruled the parents had an obligation to restrain. Failure to restrain in those cases was negligence by the parents. The court stated similar facts might make parents liable in Florida as well, but explained the act of the Goodwill child was isolated and could not have been foretold. 

Florida’s Supreme Court reaffirmed its position in the 1985 case of Snow v. Nelson. In that case, an older and larger child hit a younger juvenile in the eye with a croquet mallet. Parents of the injured child argued for liability and change from the Gissen case. The court refused to change its position and again explained that the mere fact of paternity does not make a parent liable for acts of a child. The court found nothing in the record to indicate the child had a habit of swinging a croquet mallet, which caused the injury. Absent a history of such action, the parents were not negligent in failing to restrain the child and therefore were not liable for the injury. The court did more. It also explained that Florida recognizes four exceptions to the common law doctrine of parental immunity: 

  1. The parent entrusts the child with an instrumentality which, because of the child’s lack of age, judgment, or experience, may become a source of danger to others; 
  2. The child committing the tort is acting as the servant or agent of its parents; 
  3. The parent consents, directs, or sanctions the wrongdoing; 
  4. The parent fails to exercise control over his or her minor child and the parent knows or with due care should know that injury to another is possible (but further explained that Florida courts narrowly construe this exception). 

The dangerous instrumentality exception appears to be little more than an extension of Florida’s dangerous instrumentality doctrine. That doctrine holds the owner of a dangerous instrumentality liable for any harm caused by the operator of the dangerous instrumentality. Dangerous instrumentalities include motor vehicles, airplanes and guns, all of which can cause great harm if negligently used. The parental liability exception to the common law protection likely expands instrumentality list as it includes the child’s lack of age judgment or experience by the than limiting instrumentality to one which of his own accord is potentially causing great damage. The expanded list involving minors includes a 2-wheel bicycle without training wheels entrusted to a 5-year-old, a baby stroller entrusted to a 5-year-old in a department store and an electric motorized passenger vehicle which the parents allowed their 2-year-old to drive. 

Florida’s legislature did not want to leave this area within the exclusive purview of the courts. Shortly after Florida’s Supreme Court decided Gissen, the legislature enacted a law which can now be found at Section 741.24 Florida Statutes. The statute makes a parent liable when a minor under the age of 18 years living with the parent maliciously or willfully destroys or steals property belonging to a municipal corporation, county, school district, department of the State, person, partnership, corporation, association, or religious organization. Liability is limited to the actual damages plus taxable court costs (filing fee, service fee and similar costs exclusive of attorney’s fees). 

In 1999, a Florida appellate court was asked if a noncustodial parent after divorce was liable under Section 741.24 of Florida Statutes when the minor child vandalized elementary school. The mother was the primary residential parent under the divorce decree, the father had visitation every other weekend. While living with his mother, the 12-year-old child vandalized the school and the school district sought to hold both parents liable for the damages. In a 2 to1 decision, the appellate court ruled that the statute places liability only on the parent with whom the child was living at the time the damage was done. 

Section 790.22 of Florida Statutes imposes criminal liability for a child’s use of a firearm in violation of the statute. The statute prohibits a minor under the age of 16 from using a BB gun, air or gasoperated gun, electric weapon or device unless it is used under the supervision and presence of an adult acting with consent of the minor’s parent and further provides that any adult responsible for the welfare of any child under the age of 16 knowingly permits the child to have one of those guns in violation of the statute commits a misdemeanor. The statute also prohibits a minor under 18 from possessing a firearm, other than unloaded firearm at his or her home, unless the minor is hunting or engaged in lawful marksmanship competition or practice or other lawful recreational shooting and if under 16 is also acting with the consent of the minor’s parent or guardian and if hunting is also under supervision of an adult. 

The legislature also made specific rules for minors and motor vehicles. Section 322.09 of Florida Statutes requires application for driver’s license of a person under 18 be signed by the father, mother or guardian or if none, by another responsible adult willing to assume obligations imposed by Florida statutes. Any negligence or willful misconduct of a minor under 18 is imputed to the person signing the application and that person is jointly and severally liable with the minor for any damages caused by the negligence or willful misconduct.  

The owner of a motor vehicle in Florida is liable for harm caused by the operator under Florida’s dangerous instrumentality doctrine. The statute extends liability for the person signing application to harm caused by any vehicle operated by the minor, not merely vehicle owned by the signer. 

Common law protection of the parent from claims for damage done by a child is alive and well in Florida. However, the courts have carved out exceptions. The most dangerous exception to a parent is likely liability for failure to exercise control over a child when the parent knows or should know that injury to another is possible. Judges have limited that exception to an almost exact replication of previous dangerous acts so that swinging a baseball bat might not create liability for swinging a golf club. But, if the child has a history of swinging a variety of objects, the parent may be required to restrain from all swinging. For that reason, parents should not follow a laissezfaire approach to parenting and should be vigilant to protect others. 

William G. Morris is the principal of William G. Morris, P.A. William G. Morris and his firm have represented clients in Collier County for over 30 years. His practice includes litigation and divorce, business law, estate planning, associations and real estate. The information in this column is general in nature and not intended as legal advice. 

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