On August 25, twin 7 year old children were reportedly playing with a
cigarette lighter when they started a fire in the Makakilo area in Honolulu.
Fortunately no homes were burned but the forest behind the homes continues to
burn a week later. Their father appeared on television looking contrite and
apologetic.
We
have received a number of calls on the potential civil liability of the parents
for the misconduct of their children.
If
parents can vicariously claim an honor like “Parents of the Year” for the
achievements of their children, should they not be held vicariously responsible
for the tortious acts of their children?
State
law governs parental responsibility for children’s misconduct. For a link to
the Parental Responsibility Laws in all 50 States, see http://www.mwl-law.com/wp-content/uploads/2013/03/parental-responsibility-in-all-50-states.pdf
Hawaii
is a pioneer in legislation on parental responsibility. As early as 1846, when
Hawaii was still a kingdom ruled by King Kamehameha, a Hawaii statute provided
that “The father and mother of unmarried minor children shall jointly and
severally be liable in damages for tortious acts committed by their children,
and shall be jointly and severally entitled to prosecute and defend all actions
in which the children or their individual property may be concerned.” The
modern version of this statute is found in Section 577-3 of the Hawaii Revised
Statutes.
What
is a “tort”? According to the legal dictionary, the term “tort” (derived from
the French for “wrong”) “is a civil wrong or wrongful act, whether intentional
or accidental, from which injury occurs to another. Torts include all
negligence cases as well as intentional wrongs which result in harm. Therefore
tort law is one of the major areas of law (along with contract, real property
and criminal law) and results in more civil litigation than any other category.
Some intentional torts may also be crimes, such as assault, battery, wrongful
death, fraud, conversion (a euphemism for theft) and trespass on property and
form the basis for a lawsuit for damages by the injured party. Defamation,
including intentionally telling harmful untruths about another-either by print
or broadcast (libel) or orally (slander)-is a tort.” http://dictionary.law.com/Default.aspx?selected=2137
Justification for parental
liability
A
challenge to the constitutionality of the statute was rejected by a federal
court on the ground that the statute provided a remedy for tort victims or
provided an incentive to parents to exercise greater supervision over their
children. Bryan v, Kitamura, 529 F. Supp. 394.
The
Hawaii Supreme Court explained that the basis for the vicarious liability under
the statute which makes parents responsible for the torts of their minor
children is negligence or other fault of one actually at fault. The statute did
not institute a system of liability without fault, but only broadened fault
liability to make liable those who might properly be held responsible. As a
matter of public policy, parents ought to be vicariously responsible for torts
of their unmarried minor children, and the principle of respondeat superior
which originated in cases of master and servant has been extended to impose
vicarious liability in other situations. Fortune v. Wong, 68 Hawaii 1, 702 P.2d
299.
In
1891, the Hawaii Supreme Court in Day v. Day, 8 Hawaii 715, held that the
father of an infant was not responsible under circumstances where the infant
itself would not be liable. In that case a father was not held liable for
damages allegedly resulting from the act of his 2-year old child in starting a
fire while playing with matches, since the child’s acts was not a “tortious”
act for which the child itself would have been liable. However, in 1903, the
Hawaii Supreme Court held in Victoria v. Palama, 15 Hawaii 127, that the father
of a boy between seven and eight years of age was liable in damages for an
injury caused by the negligent firing of a loaded gun, on the ground that the
infant himself could have been held liable.
In
1916 the Hawaii Supreme Court in Rathburn v. Kaio, 23 Hawaii 541 sought to
temper the literal interpretation of the statute, saying: “A statute which
imposes upon a father liability to respond in damages for every tort committed
by his child irrespective of the age of the infant or the circumstances under
which the act or omission occurred, and whether or not, upon just principles,
the infant could be held liable, would permit of gross injustice. . . They [the statutes] are in derogation of the
common law, and, therefore, subject to a strict construction.”
(Atty. Tipon has a Master of
Laws degree from Yale Law School and a Bachelor of Laws degree from the
University of the Philippines. He specializes in immigration law and criminal
defense. Office: 900 Fort Street, Suite 1110, Honolulu, HI 96813. Tel. (808)
225-2645. E-Mail: filamlaw@yahoo.com. Websites:
www.MilitaryandCriminalLaw.com. He is from Laoag City and Magsingal,
Ilocos Sur. He served as an Immigration Officer. He is co-author of “Immigration
Law Service, 1st ed.,” an 8-volume practice guide for immigration
officers and lawyers. This article is a general overview of the subject matter
discussed and is not intended as legal advice. No warranty is made by the
writer or publisher as to its completeness or correctness at the time of
publication. No attorney-client relationship is established between the writer
and readers relying upon and/or acting pursuant to the contents of this
article.)
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