PARENTAL LIABILITY

OVERVIEW
At common law, parents were not vicariously liable for the torts of their minor children unless a theory was asserted in addition to the parent-child relationship, like agency, ratification or independent parental negligence. However, in order to deter juvenile delinquency and provide compensation for innocent victims, states enacted vicarious parental liability laws. Connecticut's law, General Statutes Section 52-72, provides for parental liability for the willful and malicious acts of minor children which result in personal injury and/or property damage - including damage to a motor vehicle as a result of theft. The maximum amount for liability has climbed from the statute's inception in 1955 to its latest limit of $5,000, which amount was raised from $3,000 by the 1993 Legislature.

II. APPLICATION OF THE STATUTE
The parental liability established in the statute is in addition to a child's independent liability. If the child is liable, the parents are jointly and severally liable with him. However, to hold the parent liable under the statute, the child must first be liable for his own wrongful conduct. Also, it is clear that negligence is distinguished from willful or malicious injury, in that the statute does not apply to simple negligence.

As to which parent is liable, Connecticut courts seem to look at who has control of the minor in determining whether a step-parent, foster parent, divorced parent, or guardian stands in the place of the parent under the statute. You should be aware that homeowner's and/or personal liability coverage may be applicable under the parental liability statute. Our Supreme Court has held that the insurance company has a duty to defend "if the complaint states a cause of action which appears on its face to be within the terms of the policy coverage."

III. EXCEPTIONS
Though the statute sets a limit on the amount a party can recover based on vicarious parental liability, there are ways to avoid the statutory limit:

(A) Agency relationship - Parents may be held liable on a theory of respondeat superior if it can be proven that the child was acting in the course of a parent's employment.

(B) Ratification - Parents may be held liable if it can be proven that a minor child engaged in tortious conduct while under the direction of the parent. Liability nay also be based on a theory that the parent knew the child would engage in tortious activity and failed to stop or deter the child.

(C) A third theory of independent liability may be based on a parent's knowledge of the vicious, dangerous or "tortious" tendencies on the part of the child and failure to act reasonably to control the child under the circumstances.

If you have any questions about Parental Liability or any other legal matter, please give me a call at 746-6656 or e-mail me at rsmith@attorneyrichardsmith.com

Richard A. Smith, Esq.
Attorney at Law

*This article written by Ernest Teitell appeared in the Connecticut Trial Lawyers Association Forum and is reprinted here, in part, with the Forum's permission.