8/13/2014

Can Your Kids Get You Sued?

Determining who is liable—parent, caregiver, and/or child—when a minor causes harm.

By Jim Pattillo

Anyone who has been on an airplane knows what an out-of-control child is like. In the worst cases, the child is screaming, throwing things, kicking, and disturbing everyone around them. In fact, most parents have had times when they were frantically pulling their hair out while trying to get control of their offspring. Kids misbehave or otherwise do the unexpected with regularity.

While it’s not out of the ordinary for parents to find themselves on occasion with their mouths wide open and jaws touching the floor wondering what the heck just happened, most of the time, there’s no harm, no foul when a child misbehaves. But what happens when an unbridled young person is involved in an incident and actually causes harm to another person? Are the parents liable? Can children be legally liable apart from their parents?

General negligence theories can and do apply to children. If a child is sued, the court may appoint a guardian ad litem to protect the child’s interests. This is in addition to defense counsel that may be hired by the insurer. Whether a child actually can be legally negligent or responsible depends, in most jurisdictions, on the age and maturity of the child.

The youngest children under no circumstance can be held liable for negligent acts. This group’s age range varies slightly but is usually capped off around the age of five. The next category of child liability involves a rebuttable presumption that a child cannot be negligent. In these instances, the burden is generally on the plaintiff to rebut the presumption and prove that the child possesses the maturity and understanding such that they can be held liable. The age range for this category includes the early teenage years, and is roughly between the ages of five and 15 years old.

In addition, some courts apply standards related to the activity that caused the claim. If a child is involved in an adult activity that is suitable for the child, then the court may lean in favor of finding the child capable of negligence. The ability of the child to understand and appreciate their own activity requires a fact-intensive investigation, which means that some of these issues may not be settled until discovery is conducted during litigation. This obviously affects the ability of the claims professional to evaluate the exposure pre-suit.

When a child is deemed incapable of being legally liable, the parents or caregivers could have some exposure. Negligent supervision is a recognized tort in most jurisdictions. In this case, the potential judgment actually would be against the adult. These theories also extend to anyone with responsibility for the child, including teachers, day care workers, babysitters, grandparents, camp counselors, and the like.

Plaintiffs must prove that the caregiver actually had responsibility for the child at the time of the incident or injury. Once that is established, the caregiver would be liable if they failed to monitor the child properly. The level of monitoring required obviously varies by age—an eight-year-old child requires a closer watch and more boundaries than a 12-year-old child, for example. Again, these are fact-intensive issues. In addition to age, the circumstances, such as the number of children being supervised, the abilities or disabilities of the child, and the activity they were engaged in at the time of the incident or injury, come into play.

Finally, children of any age can be liable for wanton conduct if they can form the requisite intent. In these cases, liability against the caregiver for negligence and against the child for intentional acts is a possibility.  



Jim Pattillo is a partner at Christian & Small LLP. He can be reached at jlpattillo@csattorneys.com.

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