Can a parent be held liable for negligent supervision of their child?
If it is established that a parent was negligent in supervising their child and that such negligence was a proximate cause of the child's injury, the parent can be held liable for the resulting damages. (American Motorcycle Assn. v. Superior Court, Gibson v. Gibson, Lawrence v. La Jolla Beach & Tennis Club, Inc., Akins v. Sonoma County)
The test for determining whether a parent acted negligently in supervising their child is whether the parent acted as an ordinarily reasonable and prudent parent would have done in similar circumstances. (Gibson v. Gibson, American Motorcycle Assn. v. Superior Court)
A parent's negligence is not imputable to a child in an action by the child for their injuries, but it may be relevant in determining whether, and to what extent, a third party is liable for the child's injuries. (Lawrence v. La Jolla Beach & Tennis Club, Inc., American Motorcycle Assn. v. Superior Court, Akins v. Sonoma County)
Furthermore, an unemancipated minor may maintain an action for negligence against their parent. (Gibson v. Gibson)
In regards to children's acts that harm others, a parent has a duty to exercise reasonable care to control their minor child as to prevent them from intentionally harming others or from so conducting themself as to create an unreasonable risk of bodily harm to others if the parent knows or has reason to know that they have the ability to control their child, and knows or should know of the necessity and opportunity for exercising such control. (Robertson v. Wentz)
Additionally, Cal. Civ. Code § 1714.1 imposes vicarious and strict liability upon a parent or guardian having custody or control of a minor for any act of willful misconduct of the minor that results in injury or death to another person or in any injury to the property of another. However, the amount of statutory liability is limited. (Robertson v. Wentz, Cal. Civ. Code § 1714.1)
In Lawrence v. La Jolla Beach & Tennis Club, Inc., 231 Cal.App.4th 11, 179 Cal.Rptr.3d 758 (Cal. App. 2014), the California Court of Appeal for the Fourth District explained that a parent's negligence is not imputable to a child in an action by the child for their injuries, but it may be relevant in determining whether a third party is liable for the injuries. A parent may be guilty of contributory negligence by not giving proper supervision over a child, but it is a question of fact for the jury to decide whether the lack of supervision was negligent under all the circumstances (at 30-31):
Regarding the parents' failure to closely supervise Michael, “a parent's negligence in supervising a child may be a factor in determining causation ... but is generally not a factor in determining duty.” (Amos, supra, 73 Cal.App.4th at p. 899, fn. 2, 87 Cal.Rptr.2d 34.) Further, a parent's negligence is not imputable
[179 Cal.Rptr.3d 773]
to a child in an action by the child for injuries, although it may be relevant in determining whether a third party is liable for the injuries. (Id. at p. 905, 87 Cal.Rptr.2d 34.) In any event, whether the parents' failure to supervise Michael amounted to negligence is a question of fact not properly resolved on summary judgment. “[A] parent may be guilty of contributory negligence in not giving proper supervision over a child, but ... it is a question of fact for the jury to decide whether such lack of supervision was negligence under all the circumstances.” (Christiana v. Rattaro (1947) 81 Cal.App.2d 597, 599, 184 P.2d 682; Baker, supra, 73 F.2d at p. 828 [“The duty of parents to watch over their infant child is to be viewed in the light of all the demands made at the time upon them, and the circumstances usually make negligence on their part a question for the jury.”].) It is reasonable to expect that a parent will take his or her eyes off a child for brief periods to attend to other matters. (Wright v. Standard Oil Co., Inc. (5th Cir.1972) 470 F.2d 1280, 1296 [“[E]ven the most careful parent cannot keep an ever-present eye on his child....”].)
In Akins v. Sonoma County, 60 Cal.Rptr. 499, 67 Cal.2d 185, 430 P.2d 57 (Cal. 1967), a child suffered injuries when he fell from his seat in the top row of bleachers onto a concrete floor at the Sonoma County Fairgrounds. The Supreme Court of California held that the child's parents' negligence was relevant to determine if the defendants were negligent, to determine the actual cause of the injury, and to determine the proximate cause of the injury at (198-199):
While it is true that the negligence, if any, of parents is not imputable to the child in an action by the latter for injuries (Zarzana v. Neve Drug Co. (1919) 180 Cal. 32, 35--37 (179 P. 203, 15 A.L.R. 401); Crane v. Smith (1943) 23 Cal.2d 288, 301 (144 P.2d 356); Reynolds v. Willson (1958) 51 Cal.2d 94, 102 (331 P.2d 48)), such negligence may nevertheless be relevant in determining whether a third person is liable for such injuries.
In the instant case, the question of the negligence of plaintiff's parents was relevant, firstly, in determining whether defendants were in fact negligent. As stated in section 302A of the Restatement of the Law of Torts 2d, 'An act or an omission may be negligent if the actor realizes or should realize that it involves an unreasonable risk of harm to another Through the negligent or reckless conduct of * * * a third person.' (Italics added; p. 86; see also Kaukonen v. Aro (1956) 142 Cal.App.2d 502, 505 (298 P.2d 611); Prosser, Torts (3d ed 1964) § 33, pp. 168, 173--176.) The converse of this principle is obviously that a person does not act negligently if he cannot be expected to reasonable foresee the existence of an unreasonable risk of harm to another
[430 P.2d 65] through the intervention of negligence of a third person.
The negligence of plaintiff's parents was also relevant on the issue of actual causation. In order to hold defendants liable it was necessary for plaintiff to show that [67 Cal.2d 199] the negligence of defendants, or either of them, contributed in some way to plaintiff's injury, 'so that 'but for' the defendant's negligence the injury would not have been sustained.' (2 Witkin, Summary of Cal.Law (1960) Torts, § 284, p. 1484; see Rest.2d Torts, § 432, p. 430.) Accordingly, although defendants, if found to be negligent, would not be relieved from liability simply because the negligence of plaintiff's parents concurred with defendants' negligence in causing plaintiff's injury, defendants would not be liable for plaintiff's injuries if, despite their negligence, plaintiff would have sustained the same injuries as a result of the negligence of his parents. In other words, if because of lack of supervision by his parents, plaintiff would have fallen from the bleachers even if defendants had provided safe seating arrangements and had adequately supervised the seating at the fairgrounds, then defendants' negligence would not be the 'cause in fact' of plaintiff's injuries.
Finally, the question of the negligence of plaintiff's parents is relevant as to the issue of proximate cause. This issue is concerned with whether or not, assuming that a defendant was negligent and that his negligence was an actual cause of the plaintiff's injury, the defendant should be held responsible for the plaintiff's injury where the injury was brought about by a later cause of independent origin. This question, in turn, revolves around a determination of whether the later cause of independent origin, commonly referred to as an intervening cause, was foreseeable by the defendant or, if not foreseeable, whether it caused injury of a type which was foreseeable. If either of these questions is answered in the affirmative, then the defendant is not relieved from liability towards the plaintiff; if, however, it is determined that the intervening cause was not foreseeable and that the results which it caused were not foreseeable, then the intervening cause becomes a supervening cause and the defendant is relieved from liability for the plaintiff's injuries. (Rest.2d Torts, § 440 et seq., p. 465; Witkin, supra, § 289, p. 1488, and cases cited therein.) In the instant case, for example, it could be argued that if plaintiff's parents were negligent in failing to exercise proper care for plaintiff's safety, their negligence constituted an intervening cause. Following this line of reasoning, it would be incumbent upon the jury to determine whether the negligence of plaintiff's parents was foreseeable to defendants or, if not foreseeable,[67 Cal.2d 200] whether it nevertheless resulted in a type of injury which was foreseeable to defendants.
In American Motorcycle Assn. v. Superior Court, 20 Cal.3d 578, 146 Cal.Rptr. 182 (Cal. 1978), a teenage boy sued the organizations that sponsored and collected the entry fee for a cross-country motorcycle race for novices after he sustained serious injuries while participating in the race. One of the defendants sought leave of the trial court to file a cross-complaint against the minor's parents, alleging that the parents negligently failed to supervise their child and seeking indemnity from the parents if the defendant was found liable to the minor child. The Supreme Court of California found that the allegations in this cross-complaint were sufficient to suggest that the parents' negligence may have been a concurrent cause of the minor's injuries. The Court explained that if it was established that the parents were negligent in supervising their son and that such negligence was a proximate cause of injury, the parents could be held liable for the resulting damages (at 607):
[20 Cal.3d 607] Accordingly, we conclude that under the governing statutory provisions a defendant is generally authorized to file a cross-complaint against a concurrent tortfeasor for partial indemnity on a comparative fault basis, even when such concurrent tortfeasor has not been named a defendant in the original complaint. 9 In the instant
[578 P.2d 918] case, the allegations of AMA's cross-complaint are sufficient to suggest that Glen's parents' negligence may possibly have been a concurrent cause of Glen's injuries. While we, of course, intimate absolutely no opinion as to the merits of the claim, if it is established that the parents were indeed negligent in supervising their son and that such negligence was a proximate cause of injury, under the governing California common law rule Glen's parents could be held liable for the resulting damages. (See, e. g., Gibson v. Gibson (1971) 3 Cal.3d 914, 92 Cal.Rptr. 288, 479 P.2d 648.) Thus, we believe that AMA's cross-complaint states a cause of action for comparative indemnity and that the trial court should have permitted its filing.
In Gibson v. Gibson, 3 Cal.3d 914, 92 Cal.Rptr. 288, 479 P.2d 648 (Cal. 1971), the Supreme Court of California abolished parental tort immunity and held that an unemancipated minor may maintain an action for negligence against their parent. The Court explained that the test for determining whether a parent acted negligently is whether the parent acted as an ordinarily reasonable and prudent parent would have done in similar circumstances. If not, the parent may be held liable for their negligence (at 920-923):
However, the absence of precedent on this point is not decisive. In our view, the possibility that some cases may involve the exercise of parental authority does not justify continuation of a blanket rule of immunity. In many actions, no question of parental control will arise. Thus, the parent who negligently backs his automobile into his child or who carelessly maintains[3 Cal.3d 921] a lawnmower, which injures the child, cannot claim that his parental role will be threatened if the infant is permitted to sue for negligence. To preserve the rule of immunity in such cases, where the reason for it fails, appears indefensible.
We do recognize, however, that issues of parental discretion and supervision will occasionally be raised when children sue their parents in tort. In such situations, some jurisdictions, although abrogating a broad doctrine of immunity (see Infra), have nevertheless retained a limited one where basic parental functions are involved. For example, in Goller v. White, Supra, 20 Wis.2d 402, 122 N.W.2d 193, the Wisconsin Supreme Court, while ending parental immunity in general, delineated two areas where immunity should remain: '(1) (w)here the alleged negligent act involves an exercise of parental authority over the child; and (2) where the alleged negligent act involves an exercise of ordinary parental discretion with respect to the provision of food, clothing, housing, medical and dental services, and other care.' (Id. at p. 413, 122 N.W.2d at p. 198.)
We agree with this approach in its recognition of the undeniable fact that the parent-child relationship is unique in some aspects, and that traditional concepts of negligence cannot be blindly applied to it. Obviously, a parent may exercise certain authority over a minor child which would be tortious if directed toward someone else. For example, a parent may spank a child who has misbehaved without being liable for battery, or he may temporarily order the child to stay in his room as punishment, yet not be held responsible for false imprisonment.
However, we reject the implication of Goller that within certain aspects of the parent-child relationship, the parent has
[479 P.2d 653] carte blanche to act negligently toward his child. As we noted in Emery, 'Since the law imposes on the parent a duty to rear and discipline his child and confers the right to prescribe a course of reasonable conduct for its development, the parent has a wide discretion in the performance of his parental functions, but that discretion does not include the right wilfully to inflict personal injuries Beyond the limits of reasonable parental discipline.' (45 Cal.2d 421, 430, 289 P.2d 218, 224.) (Italics added.) Although Emery involved Wilful parental misconduct, we think this reasoning is applicable to a parent's Negligent exercise of his familial duties and powers. In short, although a parent has the prerogative and the duty to exercise authority over his minor child, this prerogative must be exercised within reasonable limits. The standard to be applied is the traditional one of reasonableness, but viewed in light of the parental role. Thus, we think the proper test of a parent's conduct is this: what would an ordinarily reasonable and prudent Parent have done in similar circumstances?
By our decision today we join 10 other states which have already abolished parental tort immunity. We think it is significant that since 1963, when the Wisconsin Supreme Court drove the first wedge (Goller v. White, Supra, 20 Wis.2d 402, 122 N.W.2d 193), other jurisdictions have steadily hacked away at this legal deadwood. Of particular interest from our viewpoint is Hebel v. Hebel (Alaska 1967) 435 P.2d 8, where the Alaska Supreme Court relied in part on our decisions in Self and Klein. Other states which now allow children to sue their parents in tort include Kentucky (Rigdon v. Rigdon (Ky. 1970) 463 S.W.2d 631); New Jersey (France v. [3 Cal.3d 923] A.P.A. Transport Corp. (1970) 56 N.J. 500, 267 A.2d 490); Arizona [479 P.2d 654]
(Streenz v. Streenz (1970) 106 Ariz. 86, 471 P.2d 282); New York (Gelbman v. Gelbman (1969) 23 N.Y.2d 434, 297 N.Y.S.2d 529, 245 N.E.2d 192); Illinois (Schenk v. Schenk (1968) 100 Ill.App.2d 199, 241 N.E.2d 12); Minnesota (Silesky v. Kelman (1968) 281 Minn. 431, 161 N.W.2d 631); North Dakota (Nuelle v. Wells (N.D.1967) 154 N.W.2d 364); and New Hampshire (Briere v. Briere (1966) 107 N.H. 432, 224 A.2d 588).
Applying what we have said above to the case at bench, we hold that the trial court erred in sustaining the defendant's demurrer in reliance on Trudell v. Leatherby We overrule Trudell, and hold that an unemancipated minor child may maintain an action for negligence against his parent. Consequently, plaintiff's complaints stated a cause of action and was not vulnerable to demurrer.
Cal. Civ. Code § 1714.1(a) provides that a parent will be held civilly liable for their minor child's willful misconduct that results in injury or death to another person or in any injury to the property of another. Additionally, the statute sets out monetary limits on liability under this subdivision:
(a) Any act of willful misconduct of a minor that results in injury or death to another person or in any injury to the property of another shall be imputed to the parent or guardian having custody and control of the minor for all purposes of civil damages, and the parent or guardian having custody and control shall be jointly and severally liable with the minor for any damages resulting from the willful misconduct.
Subject to the provisions of subdivision (c), the joint and several liability of the parent or guardian having custody and control of a minor under this subdivision shall not exceed twenty-five thousand dollars ($25,000) for each tort of the minor, and in the case of injury to a person, imputed liability shall be further limited to medical, dental and hospital expenses incurred by the injured person, not to exceed twenty-five thousand dollars ($25,000). The liability imposed by this section is in addition to any liability now imposed by law.
(b) Any act of willful misconduct of a minor that results in the defacement of property of another with paint or a similar substance shall be imputed to the parent or guardian having custody and control of the minor for all purposes of civil damages, including court costs, and attorney's fees, to the prevailing party, and the parent or guardian having custody and control shall be jointly and severally liable with the minor for any damages resulting from the willful misconduct, not to exceed twenty-five thousand dollars ($25,000), except as provided in subdivision (c), for each tort of the minor.
In Robertson v. Wentz, 187 Cal.App.3d 1281, 232 Cal.Rptr. 634 (Cal. App. 1986), the California Court of Appeal for the First District explained that under common law, a parent has a duty to exercise reasonable care to control their minor child as to prevent them from intentionally harming others or from so conducting themself as to create an unreasonable risk of bodily harm to others if the parent knows or has reason to know that they have the ability to control their child, and knows or should know of the necessity and opportunity for exercising such control (at 1288-1289):
Thus, "[i]n the absence of statute, ordinarily a parent is not liable for the torts of his minor child. (See 4 Witkin, Summary of Cal.Law (8th ed. 1974) Torts, § 652, p. 2931.)" (Van Den Eikhof v. Hocker (1978) 87 Cal.App.3d 900, 904, 151 Cal.Rptr. 456.) But while no common law vicarious liability is imposed upon parents for the torts of their children, it is settled " ' "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." [Citations.]' " (Weisbart v. Flohr (1968) 260 Cal.App.2d 281, 191, 67 Cal.Rptr. 114.)
California follows the Restatement rule (Rest.2d Torts, § 316), which finds a "special relationship" between parent and child, and accordingly places upon the parent "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 or should know of the necessity and opportunity[187 Cal.App.3d 1289] for exercising such control." (Costello v. Hart (1972) 23 Cal.App.3d 898, 900, 100 Cal.Rptr. 554; Poncher v. Brackett (1966) 246 Cal.App.2d 769,
771, 55 Cal.Rptr. 59.) In Weisbart v. Flohr, supra, 260 Cal.App.2d 281, 67 Cal.Rptr. 114, the court observed: " ' "The parent will incur liability for his minor child's intentional acts of violence or damage to persons or property if, knowing of the child's vicious or destructive tendencies or acts, he fails to exercise reasonable measures to restrain or discipline the child and thus encourages or acquiesces in such misconduct on the part of the child." ' " (Id., at p. 291, 67 Cal.Rptr. 114.)
However, Cal. Civ. Code § 1714.1(a) imposes vicarious and strict liability upon a parent or guardian having custody or control of a minor for any act of willful misconduct of the minor that results in injury or death to another person. Under the statute, the amount of statutory liability is limited. The Court held that the statute does not require that the parent have physical custody of the child and liability will be imposed on a parent who has legal custody of the minor who perpetrates acts of willful misconduct (at 1291-1295):
Appellant also challenges the trial court's dismissal of his statutory claims. Appellant first maintains that respondent is responsible for the conduct of her son pursuant to Civil Code section 1714.1, subdivision (a), which, as pertinent here, declared that "[a]ny act of willful misconduct of a minor which results in injury or death to another person shall be imputed to the parent or guardian having custody or control of the minor for all purposes of civil damages...." 2
Turning to the merits of appellant's contention, the crucial inquiry is whether the phrase "custody or control" in Civil Code section 1714.1, subdivision (a) imputes liability to the parent with mere legal custody. It is quite obvious from the record that respondent did not have physical custody of her minor son when he perpetrated the act of willful misconduct which is the basis of this action. She did, however, have legal custody of Roy pursuant to court order. Only if we construe the words "custody or control" to mean mere legal custody can appellant's statutory cause of action stand.
The issue requires construction of the statutory language in accordance with established maxims of interpretation. Of course, the paramount goal of statutory interpretation is ascertainment of the legislative intent in order to effectuate the objectives of the law. (Pennisi v. Department of Fish & Game (1979) 97 Cal.App.3d 268, 272, 158 Cal.Rptr. 683; Steilberg v. Lackner (1977) 69 Cal.App.3d 780, 785, 138 Cal.Rptr. 378.) The provision must be given "a reasonable and common sense construction in accordance with the apparent purpose and intention of the lawmakers," practical rather than technical in nature, and which, when applied, will result in wise policy rather than mischief or absurdity. (City of Costa Mesa v. McKenzie (1973) 30 Cal.App.3d 763, 770, 106 Cal.Rptr. 569.) " ' "The [187 Cal.App.3d 1293] court should take into account matters such as context, the object in view, the evils to be remedied, the history of the times and of legislation upon the same subject, public policy, and contemporaneous construction." ' " (United Business Com. v. City of San Diego (1979) 91 Cal.App.3d 156, 170, 154 Cal.Rptr. 263.)
Civil Code Section 1714.1, subdivision (a) imposes vicarious and strict liability upon a parent for acts of the child if the statutory requirements are met. (Reida v. Lund,
supra, 18 Cal.App.3d 698, 705, 96 Cal.Rptr. 102; 59 Ops.Cal.Atty.Gen. 142 (1976).) The obvious purpose of the law is to provide a satisfactory remedy to innocent third parties injured by a minor where, for all practical purposes, none is available under the common law. (Stokes, Insurance: Liability of Insurer Under Personal Liability Policy for Damage Caused by Wilful Misconduct of Insured's Child-- Application of New California Statute (1955) 7 Hastings L.J. 98, 99-101.) As one commentator has observed: "The rule of public policy would seem to be, and rightly so, that between innocent third parties and parents of a minor child causing damage through wilful misconduct, the latter should bear the burden of responsibility." (Id., at p. 101.)
Thus, the obvious purpose of Civil Code section 1714.1, subdivision (a) is to protect and compensate injured innocent third persons by expanding the common law scope of parental liability for willful acts of misconduct by children. 3 At the same time, the amount of statutory liability is limited.
Under common law, ability to control the minor is a crucial factor in determining negligence liability. (Costello v. Hart, supra, 23 Cal.App.3d 898, 901, 100 Cal.Rptr. 554.) And in order for the parent to have the requisite "ability to control" (Poncher v. Brackett, supra, 246 Cal.App.2d 769, 772, 55 Cal.Rptr. 59), a showing of physical custody and opportunity to exercise authority is necessary. (Megeff v. Doland, supra, 123 Cal.App.3d 251, 261, 176 Cal.Rptr. 467.) If section 1714.1, subdivision (a) seeks to augment the common law--and it can hardly be disputed that it does--then requiring actual physical custody of the child by the parent would not in our view adequately further the objective of the statute. A more reasonable interpretation is that the Legislature intended mere legal custody to trigger parental liability for willful acts of a child under Civil Code section 1714.1, subdivision (a). Use of the disjunctive phrase "custody or control" is consistent with the view that physical control of the child is unnecessary for application of statutory liability. Had the Legislature intended to restrict statutory parental liability for willful acts of [187 Cal.App.3d 1294] a child to parents with actual physical custody, appropriate limiting language could have been employed. 4 Instead, the more inclusive term "custody" was used, along with the broad language "or control," indicating to us a legislative intent to make either relationship with the child sufficient to make the parent liable. 5
The law recognizes a distinction between legal and physical custody of a child, but both are considered "custody." (In re Marriage of Wood (1983) 141 Cal.App.3d 671, 683, 190 Cal.Rptr. 469.) "Custody embraces the sum of parental rights with respect to the rearing of a child, including its care. It includes the right to the child's services and earnings (Civ. Code, § 197) and the right to direct his activities and make decisions regarding his care and control, education, health, and religion. [Citations.]" (Burge v. City & County of San Francisco (1953) 41 Cal.2d 608, 617, 262 P.2d 6; In re Marriage of Neal (1979) 92 Cal.App.3d 834, 841, 155 Cal.Rptr. 157.) Hence, "custody", whether physical or legal, contemplates parental input into decisions which affect the child. This being so, we do not consider it unfair to impose upon
a parent having mere legal custody, such as respondent, statutorily limited liability for willful acts of the child. 6
Decisions from other jurisdictions interpreting similar statutes have found liability based upon mere legal custody. For instance, in Flannigan v. Valliant (La.App.1981) 400 So.2d 225, a mother and father were sued under a Louisiana statute (LSA-CC Art. 2318) which made them responsible for acts of their minor "residing with them, or placed by them under the care of other persons...." (Id., at p. 227.) Their son committed a tort while residing with his sister. The father escaped liability by virtue of a divorce decree which awarded custody of the minor to the mother. The court reached "the opposite result with respect to the mother," however, on the sole ground that she had legal custody of the minor son at the time of the alleged battery. (Ibid.) The court declared: "The fact that (the child) resided outside of the mother's abode does not relieve her of that liability." (Ibid.)
[187 Cal.App.3d 1295] Both the language used by the Legislature and the policy underlying the law compel us to construe Civil Code section 1714.1, subdivision (a)--as it read prior to the 1983 amendments--to apply to parents, such as respondent, who are legal custodians of children who perpetrate acts of willful misconduct. Accordingly, the trial court erred by dismissing appellant's statutory cause of action based upon Civil Code section 1714.1, subdivision (a).