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07/19/12 It's The Law: Parent Can Be Liable For Child's Action

Question:

The neighbor's kid beat up my son. Can we sue the neighbor?

Answer:

A parent is generally not responsible for the actions of his or her child. At common law, parents were only liable for damage caused by their child if they knew the child had a tendency to engage in dangerous acts. If a parent knows their child places other people or property in danger and fails to take reasonable steps to protect others from that danger, the parent could be liable.

Almost every state has expanded the scope of parent liability by statute. Florida has two statutes that are directly on point.

Section 322.09 of Florida Statutes requires the driver's license application of any person under 18 to be signed and verified by the applicant's father, mother, or guardian. The person signing the license application is thereafter jointly and severally liable for any negligence or willful misconduct of the child when driving a motor vehicle on a highway until the child reaches 18 years of age.

Section 741.24 of Florida Statutes makes the parents of any minor living with the parents liable for damages resulting from the minor's malicious or willful destruction or theft of property. Liability is limited to actual damages so that punitive damages cannot be awarded against the parents.

Florida's Supreme Court examined parental liability in the case of Snow v. Nelson. In that case, an older, larger child seriously injured a younger, smaller child by hitting the younger child in the eye with a croquet mallet. Suit was filed against the parents of the older child.

Florida's Supreme Court first confirmed that a parent is not liable for the tort of a minor child because of the mere fact of paternity. But, the court explained there are four broadly defined exceptions under which a parent may incur liability:

  1. Where 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. Where the child committing the tort is acting as the servant or agent of the parent;
  3. Where the parent consents, directs, or sanctions the wrongdoing; or
  4. Where the parent fails to exercise control over a minor when the parent knows or should know that injury to another is possible.

The courts have applied the fourth exception narrowly. To prevail under that exception, it must be proven that the child had a habit of engaging in a particular act or course of conduct which led to the plaintiff's injury for successful recovery. In the croquet mallet swinging case, no habit was shown. In a similar case, the Supreme Court ruled where there was no evidence that a child had a habit of swinging or slamming doors to the hazard of persons using the doors, there could be no recovery against his parents for injury resulting from the child's willful, deliberate, intentional and malicious closing of a door with such force and violence as to sever a finger on the victim's hand.

The facts of each case will determine the outcome. If recovery is sought under the foreseeability exception, it will be important to introduce evidence that your neighbor's child has a record of physical aggression toward other children. Producing that evidence will require a thorough investigation and skillful presentation at trial. For that, you will need a good attorney.

Before proceeding further, I recommend you consult with an experienced attorney. The attorney will help examine the facts of your particular case and will analyze the potential for recovery. The attorney will also explain the costs of pursuit. This is not the type of case under which attorneys' fees are recoverable so the expense of pursuit should be an important part of your consideration.

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