Children's Negligent Acts: Can A Parent Be Held Liable If Junior Hurts Someone Else ?

Posted By Michael R. Varble || 30-Oct-2013

In today's blog post, I wanted to discuss if a parent can be held liable for the negligent acts of his or her child. In short summary, a third person can bring a claim against a parent of a child for the negligent acts of the child, but only in certain circumstances. This post discusses those circumstances.

First and most importantly, in New York a third person injured by the acts of a child does not have a valid claim against a parent of that child for negligent supervision of the child. Negligent supervision of a child also does not support a claim for contribution to a third party for the negligent acts of the child. However, a valid claim can be brought against a grandparent, aunt, uncle or others who are temporarily supervising a child for negligent supervision. In addition, an injured person may bring a claim against a parent if he or she was injured by a child that was provided or had access to a dangerous instrumentality.

What is a dangerous instrumentality and when can a parent be held liable for a child's use of it ? Well, there are several things that can be considered a dangerous instrumentality. Many cases in New York have found numerous different items to be considered dangerous instrumentalities like, an ATV, a gas grill, an air rifle, a bow and arrow, matches, a chain saw, a minibike, a snowmobile, an automobile and a power boat. Some items that have been determined by the Courts to not be dangerous instruments are a simple plastic doll, a tennis ball, a tooth pick, a hot pizza, a trampoline, a water slide, a whiffle ball bat, a toy rifle, a skateboard and many other items. When deciding whether the item involved in an accident would be considered a dangerous instrumentality, an attorney is going to need to consider the age, intelligence, infirmity, disposition and training of the child that used the item to decide if a Court would find that there is a valid negligent entrustment claim against the parent. Simply stated, the older and more intelligent a child, the less likely that the instrument is going to be found to be a dangerous instrumentality which means there will not be a valid claim against a parent for negligent entrustment of the instrumentality.

Keep in mind though, NY Vehicle and Traffic Law § 388 holds the owner of a vehicle responsible for the negligent use and operation of a vehicle if someone is injured in an accident with the owner's vehicle. Parents are not off the hook for car accidents with licensed teen drivers.

A person who is injured by a child through the use of a dangerous instrumentality will also have to show that the harm was foreseeable. What does foreseeable mean ? If a child is provided with a chainsaw or had access to it and someone else was around when the child was using it, could you anticipate that the person in your child's company might get injured ? Probably. That is a foreseeable act. The injured person also has to show that the parent knew or should have know that the child had access to the instrumentality. How, you ask ? Did the parent know that the child used the chainsaw in the past ? Was the chainsaw under lock and key ? Did the child talk about using it before the incident ? These are just a few of the questions an attorney might ask in evaluating your case to find out if the parent knew or should have known about the child's access to a dangerous instrumentality.

One last side note, the Courts in New York have also recognized a vicious propensity exception by which a parent can be held liable based on knowledge of a child's propensity for harmful conduct. If you have a child that you know engages in this kind of conduct, you need to do what you can to remedy it folks.

In summary, I hope our readers do not find themselves in the position of being referred to as the Plaintiff. However, it happens and, if you are injured by someone else, please give me a call for a free consultation and a free case evaluation at 1.800.900.6204. Our attorneys have over 150 years of combined experience and we look forward to fighting for you !

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