Blue Chipper – Parental Liability for Acts of Child

The case:  Lavin v. Jordon, 16 S.W.3d 362 (Tenn. 2000).  Author:  Justice William M. Barker.

Why it is a Blue Chipper:  Lavin v. Jordan is the leading case on the liability of parents for the willful or malicious tortious acts of their children.  It is important to note, however, that despite some rather broad language in Lavin the Eastern Section of the Tennessee Court of Appeals has recently held that neither Lavin nor the statute referenced below are applicable in cases where the child negligently causes injury or death.

The bottom line:

A.  The relevant statute (Tenn.Code Ann. §§ 37-10-101 to -103 (1996 & Supp.1999):

37-10-101. Recovery for injury or damage by juvenile.
Any municipal corporation, county, town, village, school district or department of this state, or any person, or any religious organization, whether incorporated or unincorporated, shall be entitled to recover damages in an action in assumpsit in an amount not to exceed ten thousand dollars ($10,000) in a court of competent jurisdiction from the parents or guardian of the person of any minor under eighteen (18) years of age, living with the parents or guardian of the person, who maliciously or willfully causes personal injury to such person or destroys property, real, personal or mixed, belonging to such municipal corporation, county, township, village, school district or department of this state or persons or religious organizations.

37-10-102. Limitation on amount of recovery.-
The recovery shall be limited to the actual damages in an amount not to exceed ten thousand dollars ($10,000) in addition to taxable court costs.

37-10-103. Circumstances under which parent or guardian liable.-
(a) A parent or guardian shall be liable for the tortious activities of a minor child that cause injuries to persons or property where the parent or guardian knows, or should know, of the child’s tendency to commit wrongful acts which can be expected to cause injury to persons or property and where the parent or guardian has an opportunity to control the child but fails to exercise reasonable means to restrain the tortious conduct.
(b) A parent or guardian shall be presumed to know of a child’s tendency to commit wrongful acts, if the child has previously been charged and found responsible for such actions.

Tenn.Code Ann. §§ 37-10-101 to -103 (1996 & Supp.1999).

B.   "The plaintiffs first argue that section 37-10-103 represents a codification of the common law tort of negligent control and supervision of children and that any action commenced under this section is not subject to the statutory cap on damages in section 37-10-102. The defendants, however, argue that section -103 is not an independent cause of action and that the section only serves to set forth the circumstances under which a parent may be held liable for the acts of their children as provided in section 37-10-101. According to this interpretation, the section -102 cap on damages would apply to limit the amount of any recovery. "  P. 365.

C.  "[W]e find no evidence that section 37-10-103 has ever been intended to provide for a cause of action separate and independent of that presently stated in section 37-10-101."  P. 367-68.

D.  "The plaintiffs also argue that the 1981 and 1985 amendments did not supersede the common law with regard to parental liability as established by our decision in Bocock v. Rose, 213 Tenn. 195, 373 S.W.2d 441 (1963). Regretfully, we must again disagree."  P. 368.

E.   "In comparing the parental liability cause of action with our decision in Bocock, we are constrained to conclude that the basis of liability imposed by the statute and by our decision in Bocock are virtually identical with respect to intentional torts committed by children. Although parental liability under the 1957 appears to have been technically grounded in vicarious liability, the plain language of the 1981 and 1985 amendments fundamentally changed the nature of the cause of action. Unlike the original version of section -1003, the current section -103(a) does not contain any language that would require the defendant to prove ‘due care and diligence.’ Instead, section -103(a) now states that ‘[a] parent or guardian shall be liable for the tortious activities of a minor child that causes injuries to persons or property where····’  As this language makes clear, lack of parental negligence is no longer merely a defense to liability; parental negligence is now the basis of that liability. In other words, unlike the original statute, plaintiffs now need to show more than the mere existence of a parent/child relationship to establish a prima facie case; plaintiffs must now show that the parents are actually at fault before any liability can attach."  P. 369 (footnote omitted).

F.  "We hold that Tennessee Code Annotated section 37-10-103(a) does not establish an independent cause of action against parents for the intentional acts of their children. We also hold that the common law in this regard has been superseded by statute, at least in so far as intentional or malicious injury to persons or property is concerned. Consequently, the total amount of damages recoverable by the plaintiffs in this case based upon allegations of intentional conduct by the defendants’ minor child is governed by Tennessee Code Annotated section 37-10-102. Although we recognize that the wisdom of certain statutes is generally a question for the General Assembly, the legislature may wish to reconsider the effect that section 37-10-102 has upon cases such as this one. "  P. 370.

G. (Justice Birch’s dissent)  "Chief among our points of disagreement is my firm conviction that the cause of action for negligent parental supervision as established by and refined in Bocock v. Rose remains, in my opinion, viable, extant, and uncapped in the amount of damages recoverable. Thus, I cannot agree that the statutes under discussion provide the sole vehicle for the redress of injuries caused by negligent parental supervision."  P. 370 (footnote omitted).

Other materials of note on the issue of the liability of parents for the tortious acts of their children:

A.  Henneberry v. Simoneaux, 2006 WL 2450138  (Tenn.Ct.App. August 22, 2006) ( Lavin does not apply when the child acted negligently rather than willfully or maliciously; however,  parents are not vicariously liable for the negligent acts of their children and their liability, if any, is based on the principles articulated in the Restatement (Second) of Torts § 316 (1965) or negligent entrustment  as described in Restatement (Second) of Torts § 390 (1965).

B.  Restatement (Second) of Torts § 316 (1965):  "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 or should know of the necessity and opportunity for exercising such control."

C. Restatement (Second) of Torts § 390 (1965),  "One who supplies directly or through a third person a chattel for the use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them."  This section was cited with approval in West v. E. Tenn. Pioneer Oil Co., 172 S.W.3d 545, 554 (Tenn.2005).


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