§50.3 Liability of Parents for Nonintentional Acts of Children

The Case: Henneberry v. Simoneaux , No. M2005-02032-COA-R3-CV, 2006 WL 2450138 (Tenn. Ct. App. Aug. 22, 2006).

The Basic Facts: Female plaintiff was injured when Defendants' two year old child ran into her with a bicycle. Plaintiffs brought suit seeking to hold Defendants responsible for the harm caused by their daughter.

The Bottom Line:

• "[T.C.A.] § 37-10-103 now provides,

  (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 that 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."

  2006 WL 2450138 at *2.
• "Defendants assert that they had no knowledge of any 'tendency to commit wrongful acts' on the part of their daughter; therefore, § 37-10-103 shields them from liability for negligent supervision. Plaintiffs argue that the parental liability statute does not apply because the child's conduct was neither intentional nor malicious. This argument is based upon language in § 37-10-101 which states, 'any person . . . shall be entitled to recover damages . . . from the parents or guardian . . . of any minor . . . who maliciously or willfully causes personal injury to such person.' Thus, the Plaintiffs argue that their cause of action is governed by the common law, not the parental liability statute. It is the Defendants' position that the parental liability statute 'is not limited to those cases which only involve malicious or willful injury; rather, the statue by its own language applies to all 'tortious activities' of a minor child.' This argument is based upon § 37-10-103 which uses the phrase 'tortious activities' instead of 'malicious or willful.' § 37-10-103." Id.
• "Although § 37-10-103 uses broader language than § 37-10-101, the purpose of § 37-10-103 is to describe the circumstances in which a parent could be liable under § 37-10-101. Lavin, 16 S.W.3d at 367-68. Thus, § 37-10-103 does not govern parental liability in general, but only vis a vis § 37-10-101. Section 37-10-101 creates the cause of action, not § 37-10-103; accordingly, if § 37-10-101 does not apply to a case, neither does § 37-10-103. See Id. Section 37-10-101 provides a cause of action to individuals 'maliciously or willfully' injured by a minor. § 37-10-101. There is no suggestion in this record that the Defendants' daughter acted maliciously or willfully; therefore, the parental liability statute does not apply to these circumstances and the defendants may not rely upon § 37-10-103. The well settled common law rule is that the parent-child relationship, alone, is insufficient to hold parents liable for the torts of their minor children.King v. Smythe, 204 S.W. 296, 297 (Tenn. 1918); Nichols v. Atnip, 844 S.W.2d 655, 658 (Tenn. Ct. App. 1992); Highsaw v. Creech, 69 S.W.2d 249, 254 (Tenn. Ct. App. 1933). Although this rule prevents vicarious liability, it does not prevent parents from being held liable for their own negligence." Id. at *2-*3.
• "The courts of this state have adopted § 315 of the [RESTATEMENT (SECOND) OF TORTS]. Lett v. Collis Foods, Inc., 60 S.W.3d 95, 99 (Tenn. Ct. App. 2001); Newton v. Tinsley, 970 S.W.2d 490, 492 (Tenn. Ct. App. 1997); Biscan v. Brown, 160 S.W.3d 462, 479 (Tenn. 2005) (citing § 315); Bradshaw, 854 S.W.2d at 871 (citing § 315); Nichols v. Atnip, 844 S.W.2d 655, 661 (Tenn. Ct. App. 1992) (citing § 315). Section 315 provides,

  There is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless

  (a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person's conduct, or
  
  (b) a special relation exists between the actor and the other which gives to the other a right to protection.

  [RESTATEMENT (SECOND) OF TORTS] § 315 (1965)." Id. at *4.
• "The special relations envisioned by [RESTATEMENT (SECOND) OF TORTS § 315(a)] include 'those between parents and their minor children, masters and their servants, and persons having custody of persons with dangerous propensities.' Nichols, 844 S.W.2d at 662 (citing [RESTATEMENT (SECOND) OF TORTS §§ 316, 317, & 319]); see also Lett, 60 S.W.3d at 100 (citing §§ 316 through 319). The principles governing the special relationship between a parent and minor child are as follows:

  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.

  [RESTATEMENT (SECOND) OF TORTS § 316 (1965)]. The state's adoption of § 315 forms the basis for parental liability for the acts of a minor child which are neither intentional nor malicious." Id. (footnotes omitted).
• "Plaintiffs, however, cannot successfully assert such a cause of action because there is no dispute that the defendants' child displayed no tendency or propensity to engage in conduct similar to that causing the injury in this case. The Reporter's Notes discussing § 316 emphasize that '[t]here must, however, be some specific propensity of the child, of which the parent has notice.' [RESTATEMENT (SECOND) OF TORTS § 316 & reporter's notes (1965)]. § 37-10-103(a), Bocock, and the [RESTATEMENT (SECOND) OF TORTS § 316], recognize the rule that parents cannot be held liable for negligent supervision and control unless the child had a specific tendency to engage in conduct similar to that causing the injury at issue. Accordingly, we conclude that under the undisputed facts of this case, the defendants are not liable for negligent supervision and control of their minor child." Id. (footnote omitted).
• "The Plaintiffs' Amended Complaint also asserted a common law cause of action for negligent entrustment. The Amended Complaint states, 'the Defendants were negligent in entrusting their daughter with a bicycle when they knew, or reasonably should have known, that she was incompetent to ride the bicycle in a safe manner under the existing circumstances . . . .' A claim of negligent entrustment ''requires proof that a chattel was entrusted to one incompetent to use it with knowledge of the incompetence, and that its use was the proximate cause of injury or damage to another.'' West v. E. Tenn. Pioneer Oil Co., 172 S.W.3d 545, 554 (Tenn. 2005) (quoting Woodson v. Porter Brown Limestone Co., 916 S.W.2d 896, 907 (Tenn. 1996))." Id. at *5.
• "[T]he facts of this case do not present a clearly unreasonable risk of harm. The occurrence of an injury is far less probable when a child is entrusted with an age-appropriate toy such as a training bicycle, and the possible magnitude of that injury is greatly diminished. Entrusting children with age-appropriate toys has great social value, and is of benefit to the parents. Generally such chattels are designed to be safely entrusted to children. To require parents to further reduce what little risk of harm remains would most likely be futile and would place an unreasonable burden on parents. This is especially true when, as in this case, the child has no history of using the toy inappropriately. Based on the foregoing, the defendants' entrustment of a training bicycle to their two-year-old daughter did not create the unreasonable risk of harm required to successfully assert a cause of action for negligent entrustment." Id. at *6.