Parental Liability for Torts of Minors

August 12, 2009

By: David K. Jaffe

At common law, the torts of children do not impose vicarious liability upon parents qua parents, although parental liability may be created by statute, or by independently negligent behavior on the part of parents.[1] For example, parental liability may be imposed where the parents entrust a dangerous instrumentality to their children, or fail to restrain their children knowing that they possess dangerous tendencies.[2]

The Restatement (Second) of Torts § 316 provides: "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 (a) knows or has reason to know that he has the ability to control his child, and (b) knows of or should know of the necessity and opportunity of exercising such control."

A golf club is not so obviously and inherently dangerous that it is negligence to leave it lying on the ground in the yard, and the parent was not held liable when his eleven-year-old son accidentally struck a nine-year-old with it.[3] However, where the parents knew of their four-year-old son's fascination with fire, they were held liable for failing to supervise and control him when he severely burned another child while playing with matches.[4]

Conn. Gen. Stat. § 52-572 creates parental liability for the torts of unemancipated minors where the minor willfully and maliciously damages property or injures any person, or having taken a motor vehicle without the permission of the owner, damages it. In such a case, the parent is jointly and severally liable with the minor for damages up to five thousand dollars if the minor or minors would have been liable had they been an adults.

The statute creates liability where none existed at common law, and the liability is absolute, in the sense that no negligence need be shown to exist on the part of the parents. If the child is liable, the parents are jointly and severally liable with him.[5] Because the statute is in derogation of common law, it must be strictly construed to require liability to be imposed on a legally appointed guardian.[6]

A parents' challenge to § 52-572 on constitutional grounds was rejected because they failed to prove that § 52-572 did not serve the public health, safety and morals, or that it did not do so in a reasonable manner. The court held § 52-572 to be constitutional because it had a rational relationship to the preservation and the promotion of the public welfare.[7]

Conn. Gen. Stat. § 52-572 was first enacted in 1955 in recognition of the need for a deterrent to the rise of juvenile delinquency by placing upon the parent the obligation of controlling his minor child so as to prevent him from intentionally harming others.[8] In 1959, the statute was amended to impose vicarious liability upon parents where the minor child takes a motor vehicle without permission and damages it. In such a case, liability will be imposed upon the parent without the requirement of willful or malicious conduct by the child. If the child takes a motor vehicle without permission of the owner, and causes damage to it, the parent is jointly and severally liable with the minor child for such damage, if the minor would have been liable for the damage if he had been an adult.[9]

There may be a distinction between custody and control for purposes of vicarious liability under the statute. In a case where the son was in the custody of the State, but he had returned to his father's house on an experimental basis and run away after a week, the court held that the son was under the father's control. Thus, the father was liable for damage to a car, caused by his son while the son was on release from a state school for boys.[10]

In order to recover under the statute, the court must find that the injury to the plaintiff was caused by the minor willfully or maliciously. However, the allegation and proof of specific willful and malicious behavior do not establish willful or malicious injury. Not only must the action producing the injury, but the resulting injury be intentional. An intentional injury results from an act done for the purpose of causing the injury or with knowledge that the injury is substantially certain to follow. Thus, allegations that the minor plaintiff took a car without permission, and then drove it recklessly, did not suffice to support a claim that he had willfully and maliciously injured the plaintiff. Intent is a question of fact, and the determination will not be reviewed on appeal unless the conclusion drawn by the trier is one which could not reasonably be drawn.

Parents sued under Conn. Gen. Stat. § 52-572 stand in the same position as their minor children in respect to the controlling Statute of Limitations. Their liability under the statute relating to parental liability for the torts of minor children is dependent upon the liability of their minors. Some cases suggest that a cause of action under § 52-572 is subject to the three year limitation set forth in Conn. Gen. Stat. § 52-577. For instance, in an action brought against the parent for damage to an automobile caused by the child, the court stated: "The gravamen of the plaintiff's cause of action is not negligence or wanton misconduct but rather a violation of § 52-572 ("parental liability for torts of minors.") This statute creates a tort liability (taking a motor vehicle without the owner's permission) which is subject to the three-year limitation fixed by § 52-577 for tort actions caused by negligence.[11]

However, if the minor took the car under circumstances demonstrating recklessness or wanton misconduct, it is possible that the action might be controlled by the two year statute of limitations set forth in Conn. Gen. Stat. § 52-§ 52-584


[1] Kaminski v. Fairfield, 216 Conn. 29, 34 (1990).

[2] See Labonte v. Federal Mutual Ins. Co., 159 Conn. 252, 256 (1970).

[3] See e.g., Lubitz v. Wells, 19 Conn. Supp. 322 (1955).

[4] See, e.g., Jarboe v. Edwards, 26 Conn. Supp. 350 (1966).

[5] See Labonte v. Federal Mutual Ins. Co., 159 Conn. 252, 256 (1970).

[6] See Slavin v. Byrne, 1991 Conn. Super. LEXIS 178.

[7] See Watson v. Gradzik, 34 Conn. Supp. 7 (1977).

[8] See, e.g., Repko v. Seriani, 3 Conn. Cir. Ct. 374 (1965).

[9] See, e.g., Repko v. Seriani, 3 Conn. Cir. Ct. 374 (1965).

[10] See, e.g., Repko v. Seriani, 3 Conn. Cir. Ct. 374 (1965).

[11] Repko v. Seriani, 3 Conn. Cir. Ct. 374, 379 (1965).