GeneralLitigationPersonal Injury Law

Liability of Parents

"Your son broke my window - Pay Me!" Not so fast!

In Virginia, the parent is not liable for the torts of his child!

In Virginia, a parent is not liable for the negligence of his child without a principal/agent relationship!

Virginia has long and consistently held that the relationship of parent and child does not of itself impose liability upon a parent for the child‘s torts without the relationship of principal and agent. Hackley v. Robey, 170 Va. 55, 65, 195 S.E. 689 (1938); Oliver v. Simmons, 161 Va. 294, 300, 170 S.E. 583 (1933); Green v. Smith, 153 Va. 675, 681, 151 S.E. 282 (1930); Litz v. Harman, 151 Va. 363, 377, 144 S.E. 477 (1928); Mopsikov v. Cook, 122 Va. 579, 583, 95 S.E. 426 (1918); Blair v. Broadwater, 121 Va. 301, 308, 93 S.E. 632 (1917); and Cohen v. Meador, 119 Va. 429, 437, 89 S.E. 876 (1916).

STATUTORY EXCEPTIONS:

Exception 1 – Up to $2500 for damage to Government or School Property “by reason of the willful or malicious destruction of, or damage to, public property by such minor.”

§ 8.01-43. Action against parent for damage to public property by minor.

The Commonwealth, acting through the officers having charge of the public property involved, or the governing body of a county, city, town, or other political subdivision, or a school board may institute an action and recover from the parents or either of them of any minor living with such parents or either of them for damages suffered by reason of the willful or malicious destruction of, or damage to, public property by such minor. No more than $2,500 may be recovered from such parents or either of them as a result of any incident or occurrence on which such action is based.

Exception 2 – Up to $2500 for damage to Private Property “by reason of the willful or malicious destruction of, or damage to, public property by such minor.”

§ 8.01-44. Action against parent for damage to private property by minor.

The owner of any property may institute an action and recover from the parents, or either of them, of any minor living with such parents, or either of them, for damages suffered by reason of the willful or malicious destruction of, or damage to, such property by such minor. No more than $2,500 may be recovered from such parents, or either of them, as a result of any incident or occurrence on which such action is based. Any recovery from the parent or parents of such minor shall not preclude full recovery from such minor except to the amount of the recovery from such parent or parents. The provisions of this statute shall be in addition to, and not in lieu of, any other law imposing upon a parent liability for the acts of his minor child.

Definition of Willful:

Willful is defined as voluntary and intentional but not necessarily maliciousA voluntary act becomes willful, in law, only when it involves conscious wrong or evil purpose on the part of the actor, or at least inexcusable carelessness, whether the act is right or wrong. Furthermore, willfulness is defined as the voluntary, intentional violation or disregard of a known legal duty.  Pelloni v. Commonwealth, 65 Va. App. 733, 743-44, 781 S.E.2d 368, 373 (2016)

Definition of Malicious:

Malicious is the act of doing something with “wicked and corrupt motive, done with an evil mind and purpose and wrongful intention, where the act has been attended with such circumstances as to carry in them the plain indication of a heart regardless of social duty and deliberately bent on mischief.” 

[t]he word “malice” . . . is used in a technical sense, and includes not only anger, hatred and revenge, but every unlawful and [unjustified] motive. It is not confined to ill will to any one or more particular persons, but is intended to denote an action flowing from any wicked and corrupt motive, done with an evil mind and purpose and wrongful intention, where the act has been attended with such circumstances as to carry in them the plain indication of a heart regardless of social duty and deliberately bent on mischief.”

Martin v. Commonwealth, 184 Va. 1009, 1015, 37 S.E.2d 43 (1946) 

In Virginia, children under 14 years of age may not be responsible!

Children age 7 to 14 – Presumed Incapable of Negligence

Children between the ages of seven and fourteen are presumed to be incapable of either primary or contributory negligence. Norfolk & Portsmouth RR. v. Barker, 221 Va. 924, 275 S.E.2d 613 (1981); Grant v. Mays, 204 Va. 41, 129 S.E.2d 10 (1963)

Rebutting Presumption

To rebut the presumption against primary or contributory negligence, one must establish that a child is “in light of age, intelligence and experience . . . capable of understanding and appreciating the nature of the danger and the perils associated with his conduct.” Endicott v. Rich, 232 Va. 150, 156, 348 S.E.2d 275, 279 (1986). A child’s “responsibility is always to be measured according to his maturity and capacity, and determined by the circumstances of the case as shown by the evidence.” Va.-Car. Ry. Co. v. Clawson’s Adm’r, 111 Va. 313, 316, 68 S.E. 1003, 1004-1005 (1910); Hughes v. Brown, 36 Va. Cir. 444, 450 (Cir. Ct. 1995)

Children under age 7 irrefutable presumption of no negligence.

In Virginia, child under 7 years of age is conclusively presumed to be incapable of contributory negligenceChildren between the ages of 7 and 14 are presumed to be incapable of exercising care and caution for their own safety, and this presumption prevails unless rebutted by sufficient proof to the contrary.

After a child reaches the age of 14, he loses the benefit of all presumptions in his favor. He is presumed to have sufficient capacity to be sensible of danger and to have the power to avoid it, and this presumption will stand until overcome by clear proof of the absence of such discretion as is usual with infants of that age.

Grant v. Mays, 204 Va. 41, 44, 129 S.E.2d 10, 12-13 (1963) (citations omitted).

In Grant, the Virginia Supreme Court allows for an irrebuttable presumption that children chronologically under the age of seven have insufficient experience and cognitive abilities to appreciate and avoid danger. Accordingly, a plaintiff in that age group need produce no evidence of such inability, and a defendant may introduce no evidence to the contrary.

Singleton v. Harris Family Tr., 29 Va. Cir. 154, 155 (Cir. Ct. 1992)

Into the weeds:

Generally, it has been held that the mere fact of paternity does not make a parent liable for damage intentionally inflicted by a child; however, liability has been recognized where the relationship of master and servant exist or where the parent‘s own action constitutes negligence resulting in harm inflicted by a childSee 1 Harper and James, The Law of Torts, § 8.13 (1956).

Virginia has long and consistently held that the relationship of parent and child does not of itself impose liability upon a parent for the child‘s torts without the relationship of principal and agent. Hackley v. Robey, 170 Va. 55, 65, 195 S.E. 689 (1938); Oliver v. Simmons, 161 Va. 294, 300, 170 S.E. 583 (1933); Green v. Smith, 153 Va. 675, 681, 151 S.E. 282 (1930); Litz v. Harman, 151 Va. 363, 377, 144 S.E. 477 (1928); Mopsikov v. Cook, 122 Va. 579, 583, 95 S.E. 426 (1918); Blair v. Broadwater, 121 Va. 301, 308, 93 S.E. 632 (1917); and Cohen v. Meador, 119 Va. 429, 437, 89 S.E. 876 (1916).

By statute the legislature has altered this by providing a cause of action against a parent for damages to public and private property caused by a minor’s willful or malicious destruction of such property. Va. Code §§ 8.01-43 and 8.01-44 (1977). Monetary damages under either of these provisions is limited to $ 200.00. Ibid.

The provision imposing liability on a parent for damage to private property by a minor child does say that it is “. . . in addition to, and not in lieu of, any other law imposing upon a parent liability for the acts of his minor child.”

Arguably this implies that there is some other law imposing upon a parent liability for the acts of his minor child. And, of course, a parent is liable where there is a relationship of master and servant, but such a proviso cannot be construed to recognize the existence of additional causes of action not otherwise expressed.

It is true that Virginia law recognizes certain liability by an owner of domestic animals for damage done by his animals, and the plaintiff relies on this by analogy for support of her position. In Butler v. Frieden, 208 Va. 352, 158 S.E.2d 121 (1967), an owner was held liable for injuries caused by his dog and in Perlin v. Chappell, 198 Va. 861, 96 S.E.2d 805 (1957), an owner of a stockyard was held liable for damage caused by an escaping heifer. However, in both of these cases liability was recognized and duty imposed because of existing common law principles already recognized in Virginia.

More in point is the failure of the “family purpose doctrine” to achieve judicial recognition in Virginia. This doctrine imposes liability upon a parent where he furnishes an automobile to members of his family and their negligent use of the automobile causes damage. Hackley v. Robey, 170 Va. 55, 65, 195 S.E. 689 (1938).

Some other states have adopted this principle. See 7A Am. Jur. 2d, Automobiles & Highway Traffic, § 658 (1980). However, in Virginia the judicial adoption of this public policy has been expressly rejected. Hackley v. Robey, supra; Blair v. Broadwater, supra; and Cohen v. Meador, supra.

In finally putting this doctrine to rest the Court said:

If public policy demands that the head of a family should be held liable in these circumstances this should be accomplished, we think, by an appropriate act of the General Assembly and not by judicial pronouncement. Hackley v. Robey, supra, at 66.

Many public policy considerations are raised by the suggestion that a parent who fails to institutionalize an emotionally ill child should be held liable for the child‘s intentional torts to another: Will the mental health care system, the judicial system, or traditional family relationships be adversely affected? Should the same concept of liability be applied to other family relationships, such as between spouse and emotionally ill spouse, sibling and emotionally ill sibling, or adult child and emotionally ill parent, or certain professional relationships, such as between doctor and emotionally ill patient, lawyer and emotionally ill client, or priest and emotionally ill parishioner? Should the doctrine be applied to all unemancipated children equally regardless of age, even though actual parental control diminishes as a child ages, particularly as he or she reaches adolescence? Should the doctrine apply also to any relationship in loco parentis?

Thus, the Supreme Court’s conclusion in Hackley v. Robey concerning the family purpose doctrine is equally applicable to the doctrine of parental supervision. If public policy demands a parent to be held liable in these circumstances, it should be accomplished by an appropriate act of the General Assembly and not by judicial pronouncement.

Bell v. Hudgins, 1 Va. Cir. 340, 341-43 (Cir. Ct. 1983)