Parental responsibility for child’s wrongful act

by Atty. Emmanuel Samonte Tipon

On August 25, twin 7 year old children were reportedly playing with a cigarette lighter when they started a fire in the Makakilo area in Honolulu. Fortunately no homes were burned but the forest behind the homes continues to burn a week later. Their father appeared on television looking contrite and apologetic.

We have received a number of calls on the potential civil liability of the parents for the misconduct of their children.

If parents can vicariously claim an honor like “Parents of the Year” for the achievements of their children, should they not be held vicariously responsible for the tortious acts of their children?

State law governs parental responsibility for children’s misconduct. For a link to the Parental Responsibility Laws in all 50 States, see here.

Hawaii is a pioneer in legislation on parental responsibility. As early as 1846, when Hawaii was still a kingdom ruled by King Kamehameha, a Hawaii statute provided that “The father and mother of unmarried minor children shall jointly and severally be liable in damages for tortious acts committed by their children, and shall be jointly and severally entitled to prosecute and defend all actions in which the children or their individual property may be concerned.” The modern version of this statute is found in Section 577-3 of the Hawaii Revised Statutes.

What is a “tort”? According to the legal dictionary, the term “tort” (derived from the French for “wrong”) “is a civil wrong or wrongful act, whether intentional or accidental, from which injury occurs to another. Torts include all negligence cases as well as intentional wrongs which result in harm. Therefore tort law is one of the major areas of law (along with contract, real property and criminal law) and results in more civil litigation than any other category. Some intentional torts may also be crimes, such as assault, battery, wrongful death, fraud, conversion (a euphemism for theft) and trespass on property and form the basis for a lawsuit for damages by the injured party. Defamation, including intentionally telling harmful untruths about another-either by print or broadcast (libel) or orally (slander) - is a tort.

JUSTIFICATION FOR PARENTAL LIABILITY

A challenge to the constitutionality of the statute was rejected by a federal court on the ground that the statute provided a remedy for tort victims or provided an incentive to parents to exercise greater supervision over their children. Bryan v, Kitamura, 529 F. Supp. 394.

The Hawaii Supreme Court explained that the basis for the vicarious liability under the statute which makes parents responsible for the torts of their minor children is negligence or other fault of one actually at fault. The statute did not institute a system of liability without fault, but only broadened fault liability to make liable those who might properly be held responsible. As a matter of public policy, parents ought to be vicariously responsible for torts of their unmarried minor children, and the principle of respondeat superior which originated in cases of master and servant has been extended to impose vicarious liability in other situations. Fortune v. Wong, 68 Hawaii 1, 702 P.2d 299.

In 1891, the Hawaii Supreme Court in Day v. Day, 8 Hawaii 715, held that the father of an infant was not responsible under circumstances where the infant itself would not be liable. In that case a father was not held liable for damages allegedly resulting from the act of his 2-year old child in starting a fire while playing with matches, since the child’s acts was not a “tortious” act for which the child itself would have been liable. However, in 1903, the Hawaii Supreme Court held in Victoria v. Palama, 15 Hawaii 127, that the father of a boy between seven and eight years of age was liable in damages for an injury caused by the negligent firing of a loaded gun, on the ground that the infant himself could have been held liable.

In 1916 the Hawaii Supreme Court in Rathburn v. Kaio, 23 Hawaii 541 sought to temper the literal interpretation of the statute, saying: “A statute which imposes upon a father liability to respond in damages for every tort committed by his child irrespective of the age of the infant or the circumstances under which the act or omission occurred, and whether or not, upon just principles, the infant could be held liable, would permit of gross injustice.  They [the statutes] are in derogation of the common law, and, therefore, subject to a strict construction.”


Atty. Tipon has a Master of Laws degree from Yale Law School and a Bachelor of Laws degree from the University of the Philippines. He specializes in immigration law and criminal defense. Office: 900 Fort Street, Suite 1110, Honolulu, HI 96813. Tel. (808) 225-2645. E-Mail: filamlaw@yahoo.com. Websites:  www.MilitaryandCriminalLaw.com. He is from Laoag City and Magsingal, Ilocos Sur. He served as an Immigration Officer. He is co-author of “Immigration Law Service, 1st ed.,” an 8-volume practice guide for immigration officers and lawyers. This article is a general overview of the subject matter discussed and is not intended as legal advice. No warranty is made by the writer or publisher as to its completeness or correctness at the time of publication. No attorney-client relationship is established between the writer and readers relying upon and/or acting pursuant to the contents of this article.)