child with sparkler and lighter

Andy Taylor’s seven-year-old son, Opie, discovers the fireworks that his father had purchased for Independence Day. He begins shooting them in a field behind their house. But Opie fails to extinguish one of the matches, which sets fire to the arid grass. Opie attempts to stomp it out but is unsuccessful. Terrified, he flees. The blaze continues to grow, spreading across the field to a nearby lumber yard. The fire consumes—and destroys—the lumber yard. Its owner looks to hold someone responsible, but is keenly aware that little boys lack the assets necessary to satisfy any judgment rendered against them. So the lumber yard’s owner considers suing Andy instead. Is Andy liable for his son’s negligence?

Maybe. As early as 1872, the Texas Supreme Court held that the parent-child relationship, standing alone, does not make parents liable to third parties for the torts of their minor children. Instead, the children—and the children alone—are generally liable for their own torts. That rule, however, has multiple exceptions, depending on whether the child caused property damage or personal injury.

When Are Parents Liable for Property Damage?

Texas has a statute that addresses parents’ liability for property damage caused by their children. Under section 41.001 of the Family Code, “[a] parent or other person who has the duty of control and reasonable discipline of a child is liable for any property damage proximately caused by: (1) the negligent conduct of the child if the conduct is reasonably attributable to the negligent failure of the parent or other person to exercise that duty; or (2) the wilful and malicious conduct of a child who is at least 10 years of age but under 18 years of age.”

Section 41.001’s first prong requires proving that both the child and the parent were negligent. Negligence is the failure to exercise reasonable care, and the standard of care for a child is based on his age. Children younger than five are not held to any standard of care; they are incapable of negligence as a matter of law. Children between the ages of five and fourteen are typically held to a child’s standard of care, that is, what a reasonably prudent child would or would not have done under the same or similar circumstances. Children between the ages of fourteen and eighteen are held to the same standard of care as an adult. In addition to proving that the child was negligent, the plaintiff must also prove that the parent was negligent in exercising his duty to control and reasonably discipline that child.

Section 41.001’s second prong, however, imposes strict liability on both parents. All the plaintiff needs to prove is that the child’s acts were “wilful and malicious” (i.e., intentional) and that the child was between ten and eighteen when he committed those acts. Courts have held that the second prong does not require proof that the parent knew of the acts or his child’s dangerous tendencies. Nor does the second prong require proof that the parent neglected his or her authority over the child. Moreover, section 41.001’s second prong imposes strict liability on both parents, regardless of whether they have custody of the child or the ability to observe, control or discipline the child.

Damages under section 41.001’s second prong are limited to $25,000 per occurrence, plus court costs and reasonable attorney’s fees. But damages under the first prong are uncapped.

In our hypothetical above, Opie did not willfully and maliciously set the field and lumber yard on fire. It was an accident. To recover, the lumbar yard’s owner would have to prove that both Opie was negligent in handling the fireworks and matches and that Andy was negligent in failing to control and reasonably discipline Opie.

When Are Parents Liable for Personal Injuries?

Because section 41.001 only addresses property damage, the common law still governs a parent’s liability for personal injuries caused by their children. And, at common law, parents are liable only in a four limited situations.

  1. Parents are liable when the child is acting as their agent. An agency relationship exists when one person (the agent) agrees to act on behalf of another person (the principal) and subject to the principal’s control. For example, in one case, the court held that a mother was liable for the damages caused by her minor daughter’s automobile accident, because the daughter was chauffeuring her mother to a department store to purchase shoes for her brother. Since the daughter was operating the car at her mother’s insistence and for her mother’s benefit, the court held that an agency relationship existed.
  2.  Parents are liable when they direct, aid or encourage their child in the commission of the tort. For instance, in one case, the court held that a father was liable for the death of a neighbor’s hog because the evidence showed that his sons were acting under his instructions.
  3. Parents are liable when they fail to restrain a child that they know or have reason to know has dangerous tendencies. The parents must be able to anticipate the danger that his child poses to third parties. Determining whether to impose a duty to protect third parties from the child is a complex balancing test, in which there are no bright-line rules. Courts consider a number of factors, including (1) the parent’s knowledge of, consent to, sanction or participation in the child’s activities; (2) the degree of risk raised by the child and; (3) the magnitude of the burden on the parent in guarding against that risk.
  4. Parents are liable when they entrust dangerous instrumentalities to their child. Parents owe a duty “to refrain from furnishing to [their] child an instrument which, because of its nature, use and purposes, is so dangerous as to constitute in the hands of a child an unreasonable risk to others, and it is also the duty of the parent[s] to take positive action to prevent the child from obtaining and using them.” For example, in one case, a mother left her son and another young boy in the backseat of a running car. The children managed to put the car in gear, jump the curb, hit a pedestrian and crash into a building. The court held that the mother was negligent in leaving the children in the car and, hence liable for the property damage and personal injuries.

Tilting the Scales in Your Favor

Control and reasonably discipline your children. It’s good for them—and your pocketbook.