§50.2 Liability of Parents for Intentional or Malicious Acts of Children

The Case: Lavin v. Jordan, 16 S.W.3d 362 (Tenn. 2000).

The Basic Facts: Plaintiffs’ son was killed by Defendants’ son when he delivered a pizza to Defendants home. Plaintiffs sued Defendants for negligent control and supervision over their son.

The Bottom Line:

• “[W]e granted this appeal to determine whether Tennessee Code Annotated section 37-10-103(a) represents a codification of the common law tort allowing unlimited damages, or whether section 37-10-103(a) merely sets forth the circumstances under which parents may be held liable and is therefore subject to the statutory cap on damages contained in section 37-10-102.” 16 S.W.3d at 363.
• “Because resolution of this case turns upon the construction given to the parental liability statutes, it is necessary to start our analysis with a review of these statutes. The current text of these statutes is as follows:

  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).” Id. at 365-66.
• “As evidenced by the original language of the statute, by the language of the amended section, and by the legislative debates concerning the amended section, we hold that section 37-10-103 was intended only to set forth the circumstances under which parents could be held liable. In fact, we 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.” Id. at 367-68.
• “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. Bocock v. Rose, 213 Tenn. 195, 373 S.W.2d 441 (1963). Regretfully, we must again disagree.” Id. at 368.
• “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.” Id. at 369 (footnote omitted).
• “Nevertheless, we find that the result compelled by the statute in this case is particularly distasteful in that the plaintiffs, who have lost their son to a senseless act of malicious violence, are denied the opportunity to be made whole for their loss. If the plaintiffs are able to prove damages exceeding $10,000, then the present remedy is plainly inadequate and wholly insufficient to compensate the plaintiffs for the injury they have suffered. Perhaps the General Assembly will revisit the issue of whether the statutory cap on damages contained in section 37-10-102 provides an adequate and sufficient remedy, especially in cases when personal injury results in death.” Id. at 369-70.

Other Sources of Note: Henneberry v. Simoneaux , No. M2005-02032-COA-R3-CV, 2006 WL 2450138 (Tenn. Ct. App. Aug. 22, 2006) (discussion distinguishing Lavin and holding that parents may bear liability for negligent entrustment for injuries caused after child negligently or otherwise injures another).