The Livingston Law Firm, P.C.

Gerald W. Livingston, President

CIVIL LIABILITY OF A PARENT FOR THE CONDUCT OF A MINOR

Parents often ask – “am I legally responsible for the negligence of my child?”  The answer is not a simple one. The facts of each particular case will determine the answer. Texas does have a Parental Liability Statute contained in the Family Code, Chapter 41, Sec. 41.001 which provides as follows:

FAMILY CODE

SUBTITLE B. PARENTAL LIABILITY

CHAPTER 41. LIABILITY OF PARENTS FOR CONDUCT OF CHILD

Sec. 41.001.  LIABILITY.  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 willful and malicious conduct of a child who is at least 10 years of age but under 18 years of age.

Amended by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20, 1995;  Acts 2001, 77th Leg., ch. 587, Sec. 1, eff. Sept. 1, 2001.

Sec. 41.002.  LIMIT OF DAMAGES.  Recovery for damage caused by willful and malicious conduct is limited to actual damages, not to exceed $25,000 per occurrence, plus court costs and reasonable attorney's fees.

Amended by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20, 1995;  Acts 1997, 75th Leg., ch. 783, Sec. 1, eff. Sept. 1, 1997.

Sec. 41.0025.  LIABILITY FOR PROPERTY DAMAGE TO AN INN OR HOTEL.  (a)  Notwithstanding Section 41.002, recovery of damages by an inn or hotel for willful and malicious conduct is limited to actual damages, not to exceed $25,000 per occurrence, plus court costs and reasonable attorney's fees.

(b)  In this section "occurrence" means one incident on a single day in one hotel room.  The term does not include incidents in separate rooms or incidents that occur on different days.

Added by Acts 1997, 75th Leg., ch. 40, Sec. 1, eff. Sept. 1, 1997.

Sec. 41.003.  VENUE.  A suit as provided by this chapter may be filed in the county in which the conduct of the child occurred or in the county in which the defendant resides.

Amended by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20, 1995.

         Without this statute, parents are not legally liable for the damage which a child might do to the property of another whether due to the child’s negligent, willful or malicious conduct.  This statute provides a legal basis to make a parent or other person with the duty of control and reasonable discipline of a child responsible for any property damages caused by the negligent conduct of the child, if the conduct of the child is reasonably attributable to the negligent failure of the parent or custodial person to exercise that duty and further provides responsibility for the willful and malicious conduct of a child who is at least 10 but under 18 years of age.

              What does this tell us so far?

              First and foremost, the statute tells us that it applies to “property” only.  This excludes all other types of damage.  “Personal Injury” is the most notable. It also tells us it is limited to parents or custodial persons.  While the term “parents” is pretty well defined, “a custodial person” is a much broader definition. If the custodial person has the right of reasonable discipline over the child, he or she is included in the circle of legal responsibility.  A custodial person might be another relative, a baby sitter, a club leader, coach, or possibly even a teacher, school principal, or other figure of authority. The list is subject only to one’s imagination and the statute does not require such person be acting for pay.  They may be a volunteer. 

All it takes to qualify is custody of the child and a right of reasonable discipline.  How many times do we recall when a person would take the responsibility of a child who is told by the parent “now you do what so and so tells you?”        

Next, the statute tells us, if the child negligently causes damage to property due to the failure of a parent or custodial person to exercise reasonable control over the child, then the parent or custodial person may be held legally responsible to the person whose property was damaged. 

The word “child” offers the only age limitation where the damage to property is based on negligence.  A child on his or her 18th birthday becomes an adult in this state.

              Then the statute goes on to address property damage which a child may cause willfully (intentionally) or maliciously.

If the child is between 10 and 18 years of age and willfully or maliciously causes damage to property, then the parent or custodial person may be legally responsible for such damage, but only up to an amount of $25,000, per occurrence, plus court costs and reasonable attorney’s fees, but the failure to reasonably control is still a requirement.

              It should be noted where the conduct of the child is merely that of ordinary negligence, no recovery of costs and attorney’s fee is provided. Such a right of recovery for costs and attorneys fees is limited to those cases of willful or malicious conduct which causes damage to property.

              We have all known people who do not control their kids.  They allow them run wide over the neighborhood like little bandits doing harm to the property of others even after their conduct has been called to the attention of their parent or a custodial person.

              Probably the most common example of willful or malicious damage to property of which many are familiar is that of one or more kids breaking into a home while the occupants are away or new construction and trashing it just for the fun of it. 

              The statute goes further into property damage by minors over 10 but under 18 years of age inflicted on a room in a hotel or Inn which is also limited to $25,000. Per occurrence, plus attorney fees and costs.  It doesn’t take much to come of with an example of this type of occurrence, if one has a kid of high school age who attends a prom party at a hotel or Inn.  If the child does damage in a room, the parent or custodial person may be held responsible. Those gatherings have been known to get out of hand from time to time.  

              Keep in mind this statute deals with the responsibility of the parent or custodial person only.  The child who is negligent or acts willfully or maliciously remains personally responsible for the actual damages inflicted whether to property or person and/or for punitive damages in a proper case.

              Some people mistakenly believe if a kid inflicted damage to property, there is nothing that can be done about it in terms of recovering money to repair or replace the damaged property.  This can be a big mistake.

              If you suffer damages, whether to property or person, as the result of a child’s negligent, willful or malicious conduct, it would be wise to consult an attorney.  The Livingston Law Firm, P.C. is available to consult with you in these type cases.

© February 2005

Quote of the Month:  "Where law ends, tyranny begins."

© 2003 Gerald W. Livingston L.L.B. All rights reserved | Disclaimer
The Livingston Law Firm, P.C.