Parental Liability For Torts Of Minor Children

Jul 13th, 2014 By: Paul Hibner
Topics: Parental Liability For Torts Of Minor Children

New Mexico has a specific statute allowing for liability against parents for the malicious or willful acts of their children. See NMSA § 32A-2-27.

Under NMSA § 32A-2-27(A):

Any person may recover damages not to exceed four thousand dollars ($4,000) in a civil action in a court or tribunal of competent jurisdiction from the parent or guardian having custody and control of a child when the child has maliciously or willfully injured a person or damaged, destroyed or deprived use of property, real or personal, belonging to the person bringing the action.

Furthermore, under NMSA § 32A-2-27(B) the court may, in its discretion, also award attorneys’ fees and costs to a prevailing plaintiff.

The reason for such a statute is that “in all fairness, it is better that the parents of these young tortfeasors be required to compensate those who are damaged, even though the parents be without fault, rather than to let the loss fall upon the innocent victims." In re Sorrell, 20 Md. App. 179, 186, 315 A.2d 110, 114 (1974); Kelly v. Williams, 346 S.W.2d 434, 438 (Tex. Civ. App. 1961) (same), Indeed, “parental indifference and failure to supervise the activities of children is one of the major causes of juvenile delinquency; that parental liability for harm done by children will stimulate attention and supervision; and that the total effect will be a reduction in the anti-social behavior of children.” Gen. Ins. Co. v. Faulkner, 259 N.C. 317, 323, 130 S.E.2d 645, 650 (1963)

The New Mexico Supreme Court has found “a legislative recognition of the moral duty owed by a parent to exercise reasonable care so as to control his minor child and prevent him from maliciously or willfully damaging the property of another. This duty is imposed primarily because the parent has the ability or at least the opportunity to exercise such control… .” Potomac Ins. Co. v. Torres, 75 N.M. 129, 131, 401 P.2d 308, 309 (1965) (in regards to former version of current parent liability statute). “The purpose of the statute is to require parents to exercise proper surveillance and control over their child, to teach him the difference between right and wrong, good and bad, and to encourage parents to discipline their children to avoid the imposition of limited liability. With the right to bear and raise children comes the responsibility to see that one's children are properly raised so that the rights of other children are protected.” ORTEGA v. MONTOYA, 1981 N.M. App. LEXIS 700, 12, 20 N.M. St. B. Bull. 393 (N.M. Ct. App. 1981)

Parents may be held liable for the wrongful acts of their children, even when the children's acts were taken when the children were outside the immediate control of their parents. “The statute applicable to this case did not require the parents to have custody and control of the child in order to be held liable. All that was required for parental liability under the applicable statute was a child (unemancipated and under eighteen years of age) whose malicious or willful activity resulted in damage.” Alber v. Nolle, 98 N.M. 100, 103, 645 P.2d 456, 459 (1982). Likewise, the New Mexico Supreme Court has found that NMSA§ 32A-2-27 comports with constitutional due process requirements, though parental fault is not an element . “Where the liability of the parents was limited in amount and to the child's willful or malicious activity, three states have held parental liability statutes were not violative of due process even though there was no fault on the part of the parents.” Alber v. Nolle, 98 N.M. 100, 105, 645 P.2d 456, 461 (1982).