Who's fault is it?


Occasionally, children do foolish things. In fact, probably everyone reading this blog post right now can think of at least one thing they have done in their childhood that was foolish, reckless, dangerous, or all of the above. And for many of us, breaking toys and getting occasional bumps and bruises were simply part of being a kid. The grown-up concept of "liability" never crosses the mind of a child.

            As risk-adverse adults, though, dealing with “liability oblivious” children can be stressful. When little Johnny decides to play a "prank" on his friend Billy by loosening the bolts on his bicycle and Billy subsequently gets injured in an bicycle accident, can Billy's parents sue Johnny's parents?

            Maine law has addressed this question by adopting the Restatement (Second) of Torts with respect to parental liability. This Restatement provision states: "A parent is under a duty to exercise reasonable care so as to control his minor child as to prevent it . . . from so conducting itself as to create an unreasonable risk of bodily harm to [others], 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." Merchant v. Mansir, 572 A.2d 493, 494 (Me. 1990) (citing Restatement (Second) of Torts § 316 (1985).

            In Merchant v. Mansir, the Maine Supreme Judicial Court ruled that a stepfather was not liable when his child's friend was injured while riding a defective bicycle belonging to the family because there was no evidence that the stepfather knew that the child was visiting the home or that the children would be riding bicycles, let alone a defective bicycle.   Ultimately, he had no idea that he knew, or should have known, that he needed to "control" his child with regard to this activity.

            Meanwhile, in Richards v. Soucy, 610 A.2d 268 (Me. 1992), the Maine Supreme Judicial Court held that the parents of an injured child could maintain an action against parents of another child when their child was injured while playing at a friend's house. Specifically, the parents of the injured child alleged that the child's friend intentionally or negligently caused their son to fall from monkey bars at this friend's home and that the parents were negligent in failing to "appropriately supervise the children's play." Id. at 270.

            There is also a Maine statute which states that "[i]f a minor who is between 7 and 17 years of age willfully or maliciously causes damage to property or injury to a person and the minor would have been liable for the damage or injury if the minor were an adult" and the minor lives with his or her parents or guardians, the parents or guardians are liable with the minor for damage or injury. 14 M.R.S. § 304 (2012). Though the damages under this statute are capped at $800, this statute does not relieve a minor child from personal liability for any damage or injury. Id.

            My goal here has been to give you some general ideas about the boundaries of parental liability. There are some other specific scenarios that may lead to additional parental liability, but I will save those for another time. Overall, the best way to avoid liability is to keep an eye on what your children and their guests are doing and to try to teach them that their actions can have far-reaching consequences.