Torts of Minors
Minors’ Liability for Own Torts
A minor is responsible for his or her own torts. However, the court will often apply a more lenient standard. In determining tort liability for children, there are special rules, usually based on the age of the minor. Historically, there was a bright-line test based on the child’s age. Specifically:
- Under age 7: A child could not be negligent.
- Between age 7 and 14: There was a rebuttable presumption that the child could not be negligent.
- Between age 14 and 21: There was a rebuttable presumption that the child was capable of negligence.
EXAMPLE: Ted was 6 ½ years old when he was injured after running in front of a car. The driver argued that Ted was contributorily negligent as a matter of law. The lower court held that the child could not be negligent because of his age. However, on appeal, the court ruled that the jury should be able to decide whether, based on the facts and circumstances of this case and the characteristics of this child, Ted could be held to have been negligent. See, e.g.,
Tyler v. Weed, 280 N.W. 827 (Mich. 1938). See also, Baker v. Alt, 132 N.W. 2d 614 (Mich. 1965) .
Use of a subjective test, has replaced the old use of the chronological age test. This test deals with the capacity of a particular child to recognize and avoid risk and harm. Factors considered in this analysis include:
Given the difference in rates of child development, this test may more accurately evaluate a child’s culpability.
EXAMPLE: Albert (age 12) was wounded by a bullet from a gun discharged by his cousin, George (age 12), while they played in a cottage owned by their common grandfather. In an attempt to defeat a trespass action brought by Albert against George and his grandfather, George relied upon his age to absolve himself of any culpability for his actions. If the chronological age test had been applicable, there would have been a presumption that George could not be negligent. Instead, the appellate court affirmed the trial court finding that George and his grandfather were liable for Albert’s injuries. The court found that George was “under an obligation to exercise reasonable care, which was measured by the ‘reasonable care’ that other minors of like age, experience, capacity and development would ordinarily exercise under similar circumstances.” See
Kuhns v. Brugger, 135 A.2d 395 (Pa. 1957).
The standard changes when a minor engages in adult activity, such as driving a car or flying a plane. In these instances, the child is held to the same standard as an adult.
EXAMPLE: David, who was 15-years-old, was killed when a motorcycle he was driving collided with the driver’s car. At trial, the driver objected to the minor standard, which stated because the decedent was under the age of 21 at the time of the accident, he was considered a minor and was not to be held to the same degree of care as an adult. Instead, it was argued that the decedent was required to exercise the care of the average child of his age, experience and stage of mental development. On those jury instructions, the jury returned a verdict in favor of the administrator of David’s estate. On appeal, the court held that the correct standard of care was that of an adult because David (although a minor) was operating a motor vehicle. See, e.g.,
Daniels v. Evans, 224 A.2d 63 (N.H. 1966). As such, at the very least David could have possibly been considered contributorily negligent in the accident.
Parental Liability for Minor’s Torts
A survey of various judge television shows would reveal a fair amount of lawsuits against minors. Often, the plaintiff attempts to collect restitution from the parents for the tortious conduct of a minor child. In certain circumstances, parents can be held civilly or criminally negligent for the conduct of their minor children.
Each state has its own law regarding parents' financial responsibility for the acts of their children. Parents are responsible for their children's harmful actions much the same way that employers are responsible for the harmful actions of their employees. This legal concept is known as vicarious liability. The parent is vicariously liable, despite not being directly responsible for the injury. A number of states hold parents financially responsible for damages caused by their children. Some of these states, however, place limits on the amount of liability. For example, in California parents are civilly liable for a “minor’s acts of willful misconduct resulting in death, personal injury or property damage.” See
Any act of willful misconduct of a minor which results in injury or death to another person or in any injury to the property of another shall be imputed to the parent or guardian having custody and control of the minor for all purposes of civil damages, and the parent or guardian having custody and control shall be jointly and severally liable with the minor for any damages resulting from the willful misconduct.
Subject to the provisions of subdivision (c), the joint and several liability of the parent or guardian having custody and control of a minor under this subdivision shall not exceed twenty-five thousand dollars ($ 25,000) for each tort of the minor, and in the case of injury to a person, imputed liability shall be further limited to medical, dental and hospital expenses incurred by the injured person, not to exceed twenty-five thousand dollars ($ 25,000). The liability imposed by this section is in addition to any liability now imposed by law.
EXAMPLE: Andrew, who is 16-years-old, went on a drinking binge with some friends (also minors). While drunk, he stole a small airplane and went on a joy ride with his friends. He did not have a pilot’s license. Although he managed to land the plane without incident, he did slide into another small plane and cause $10,000 worth of damage. The owner of the damaged plane sued Andrew and his parents. If this incident had happened in California, both Andrew and his parents could be held jointly and severally liable for the $10,000 in damages as a result of Andrew’s willful misconduct. See
Cal. Civ. Code § 1714.1; see also Nev. Rev. Stat. Ann. § 41.470 (2005).
Other types of tort liability are covered more fully in the torts class.
Responsibility for Crimes
At common law, there were also age specific demarcations regarding minors’ liability for criminal conduct:
- Under age 7: A child was conclusively deemed incapable of committing a crime.
- Between age 7 and 14: There was a presumption that the child was unable to form criminal intent; however, this presumption could be rebutted by the state proving that the child had sufficient intelligence to form a criminal intent.
- Between age 14 and 21: A minor was held to have the same capacity to form a criminal intent as an adult.
Today, most states deal with juvenile offenders with statutes that focus on supervision and rehabilitation of the minor in a civil proceeding. Generally, minors remain under the jurisdiction of juvenile courts until the age of 16 or 18, after which they become subject to the same criminal responsibilities as adults. Yet, as younger perpetrators commit violent crimes, the criminal justice system struggles with how to handle these situations.