The Tort Duty of Parents to Protect Minor Children

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Volume 51 Issue 2 Article The Tort Duty of Parents to Protect Minor Children Vincent R. Johnson Claire G. Hargrove Follow this and additional works at:
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Volume 51 Issue 2 Article The Tort Duty of Parents to Protect Minor Children Vincent R. Johnson Claire G. Hargrove Follow this and additional works at: Part of the Torts Commons Recommended Citation Vincent R. Johnson and Claire G. Hargrove, The Tort Duty of Parents to Protect Minor Children, 51 Vill. L. Rev. 311 (2006). Available at: This Article is brought to you for free and open access by Villanova University School of Law Digital Repository. It has been accepted for inclusion in Villanova Law Review by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Johnson and Hargrove: The Tort Duty of Parents to Protect Minor Children 2006] Articles THE TORT DUTY OF PARENTS TO PROTECT MINOR CHILDREN VINCENT R. JOHNSON* & CLAIRE G. HARGROVE** TABLE OF CONTENTS I. THE UNCERTAIN VOICE OF AMERICAN TORT LAW II. THE SPECIAL RELATIONSHIP BETWEEN A PARENT AND MINOR CHILDREN III. PUBLIC POLICY A. M oral Blameworthiness B. Preventing Future Harm C. Burden on the Defendant D. Consequences to the Community E. Availability of Insurance IV. IMPACT ON CLAIMS AGAINST THIRD PARTIES V. THE SIGNIFICANCE OF CUSTODY VI. CONCLUSION: A PRECISELY TAILORED SPECIAL RELATIONSHIP. 334 M I. THE UNCERTAIN VOICE OF AMERICAN TORT LAWA UST a parent rescue a minor child from a risk of physical harm not created by the parent? 1 It is easy to think of facts that raise this *Visiting Professor of Law, University of Notre Dame. Professor of Law, St. Mary's University School of Law, San Antonio, Texas. B.A. and LL.D., St. Vincent College (Pa.); J.D., University of Notre Dame; LL.M., Yale University. Professor Johnson is a member of the American Law Institute and its Members Consultative Group on the Restatement (Third) of Torts. Preparation of this Article was assisted by two law students at St. Mary's University, Brenna Nava and Graham D. Baker. ** Briefing attorney to the Honorable Michael E. Keasler, Texas Court of Criminal Appeals, B.A., University of Texas at San Antonio; M.A., Our Lady of the Lake University; J.D., St. Mary's University School of Law. 1. This Article is concerned with failure to act, rather than with improper action, which is to say, with nonfeasance rather than misfeasance. Whether a parent whose careless action causes injury to a minor child will be subject to liability will depend upon ordinary negligence principles and whether there is some immunity, defense or privilege that prevents legal responsibility. The question here is different: namely, whether a parent whose conduct has not created a risk of harm to a child has a duty to intervene to rescue a minor child from harm caused by some other person or injurious set of events. Admittedly, it is often difficult to distinguish nonfeasance from misfeasance, and cases often contain allegations of both forms of misconduct. See Gen. Accident Ins. Co. of Am. v. Allen, 708 A.2d 828, 831 (Pa. Super. Ct. 1998) (alleging negligent acts or omissions on part of children's stepmother where mother of children claimed father's wife owed a duty to the minor children to protect them from harm ) (emphasis added). (311) Published by Villanova University School of Law Digital Repository, Villanova Law Review, Vol. 51, Iss. 2 [2006], Art. 2 VILLANOVA LAW REVIEW [Vol. 51: p. 311 question. Suppose, for example, that a child is hit on the street by a passing car, or an uncle is suspected of taking sexual liberties with a toddler, or a youth who knows how to swim suddenly begins to drown. Does the parent, upon learning of the crisis, have a duty to exercise reasonable care to avert the harm or render assistance by reason of the parent-child relationship? 2 The bonds between parent and minor child are so universally recognized that sound moral principles would resoundingly say, yes. American law, however, answers more hesitantly. Whether and to what extent a parent is under a legal duty to protect a minor child may depend upon both the nature of the threatened harm and the purpose of the question. Criminal law often places health care professionals 3 and sometimes others, 4 including parents, 5 under a duty to safeguard the interests of mi- 2. It is possible that a duty of care may arise on grounds independent of the parental relationship. For example, a person's non-tortious involvement in the facts leading up to another's need for assistance sometimes-but certainly not always-imposes a duty to render aid. See RESTATEMENT (THiRD) OF TORTS: LIABILITY FOR PHYSiCAL HARM 39 (Proposed Final Draft No. 1, 2005) ( When an actor's prior conduct, even though not tortious, creates a continuing risk of physical harm of a type characteristic of the conduct, the actor has a duty to exercise reasonable care to prevent or minimize the harm. ); see also infra note 90 (discussing duty based on custody of another). This Article is concerned solely with the question of whether a duty arises based on the parental relationship. 3. Every state has enacted a statute that requires certain professionals to report suspected incidents of child abuse or neglect to the appropriate state authority. StevenJ. Singley, Comment, Failure to Report Suspected Child Abuse: Civil Liability of Mandated Reporters, 19J. juv. L. 236, 236 (1998) (analyzing mandatory reporting laws); see also Amy L. Nilsen, Comment, Speaking Out Against Passive Parent Child Abuse: The Time Has Come to Hold Parents Liable for Failing to Protect Their Children, 37 Hous. L. REv. 253, (2000) (offering historical perspective on child abuse reporting laws). 4. See, e.g., TENN. CODE ANN (a) (1) (2005) (describing persons required to report child abuse). The Tennessee statute states: Any person who has knowledge of or is called upon to render aid to any child who is suffering from or has sustained any wound, injury, disability, or physical or mental condition shall report such harm immediately if the harm is of such a nature as to reasonably indicate that it has been caused by brutality, abuse or neglect or that, on the basis of available information, reasonably appears to have been caused by brutality, abuse or neglect. Id.; see also TEX. FAM. CODE ANN (a) (Vernon 2004) ( A person having cause to believe that a child's physical or mental health or welfare has been adversely affected by abuse or neglect by any person shall immediately make a report as provided by this subchapter. ). 5. The language of some child abuse reporting statutes is broad enough to impose an obligation on parents. See ARiz. REv. STAT. ANN (2004) (defining person with duty to report abuse or neglect of child as parent, stepparent or guardian of the minor ). In most states, however, statutes are worded in a manner that excludes parents from the scope of duty. For example, West Virginia's applicable statute specifically imposes a duty on: [A]ny medical, dental or mental health professional, christian science practitioner, religious healer, school teacher or other school personnel, social service worker, child care or foster care worker, emergency medical 2 Johnson and Hargrove: The Tort Duty of Parents to Protect Minor Children 2006] TORT DuTy OF PARENTS TO PROTECT MINOR CHILDREN 313 nor children by requiring them to report instances of suspected neglect or abuse to the appropriate authorities. 6 Dereliction of that obligation can result in criminal sanctions. 7 Under other laws, parents can sometimes be held criminally responsible for child neglect based on allowing a minor child to remain with a known abuser 8 or failing to secure needed medical care for the child. 9 These provisions mean that at least in some states, under criminal law, the relationship between a parent and a child exemplifies a special relationship where the duty to protect is imposed. ' 0 services personnel, peace officer or law-enforcement official, member of the clergy, circuit courtjudge, family law master, employee of the division of juvenile services or magistrate [who] has reasonable cause to suspect that a child is neglected or abused or observes the child being subjected to conditions that are likely to result in abuse or neglect... W. Va. Code Ann. 49-6A-2 (West 2004). 6. SeeJessica R. Givelber, Note, Imposing on Witnesses to Child Sexual Abuse: A Futile Response to Bystander Indifference, 67 FORDHAM L. REv. 3169, 3181 (1999) (noting that all fifty states have enacted mandatory child abuse reporting statutes). In her discussion of mandatory child abuse reporting statutes, Givelber notes that: All of the mandatory child abuse reporting statutes have seven basic elements. These include: (1) a definition of conditions worthy of reporting; (2) a list of the persons required to report; (3) the degree of certainty necessary to warrant reporting the suspected abuse; (4) penalties imposed for failure to report; (5) criminal and/or civil immunity available to reporters; (6) abrogation of certain/all confidential communication privileges; and (7) delineation of the reporting procedures. Id. at (footnotes omitted). 7. See, e.g., TEX. FAM. CODE ANN (Vernon 2004) (defining knowing failure to report as class B misdemeanor). 8. See State v. Williquette, 385 N.W.2d 145, 150 (Wis. 1986) (finding that mother's conduct in leaving children with their abusive father was more than omission and was sufficient to trigger criminal liability for child abuse). One commentator, discussing courts that have imposed criminal liability on parents, explains: In these cases the courts have held criminally responsible a parent who neither lifted a hand to hurt nor to help the child. Relying on state criminal laws, the courts determined that their state's legislature intended to treat a parent's failure to act in the same way that it would punish the affirmative act of abuse. Although the courts have not yet extended such criminal liability to people other than parents, the courts and legislatures have sent a strong message to parents about their responsibility toward their children. If parents do not take action to prevent abuse, they may face criminal liability. Mary Kate Kearney, Breaking the Silence: Tort Liability for Failing to Protect Children from Abuse, 42 BUFF. L. REV. 405, 434 (1994). 9. See State v. Cacchiotti, 568 A.2d 1026, , 1031 (R.I. 1990) (upholding involuntary manslaughter conviction of mother who failed to seek medical attention for her son after he was severely beaten by mother's boyfriend); cf Richard W. Garnett, Taking Pierce Seriously: The Family, Religious Education, and Harm to Children, 76 NOTRE DAME L. REv. 109, 111 (2000) ( Most states, however, exempt religious parents from prosecution, or limit their exposure to criminal liability, when their failure to seek medical care for their sick or injured children is motivated by religious belief. ). 10. Williquette, 385 N.W.2d at 152; see also State v. Walden, 293 S.E.2d 780, 787 (N.C. 1982) (upholding conviction of mother who failed to prevent harm to child). The North Carolina court stated that [w] here the common law has im- Published by Villanova University School of Law Digital Repository, Villanova Law Review, Vol. 51, Iss. 2 [2006], Art. 2 VILLANovA LAW REVIEW [Vol. 51: p. 311 If, however, the issue concerns tort rather than criminal liability the answers to parental-duty questions are uncertain. While some child neglect or abuse reporting statutes expressly or implicitly create a civil cause of action, 1 most do not.' 2 And, beyond that, thus far, there is little case posed affirmative duties upon persons standing in certain personal relationships to others, such as the duty of parents to care for their small children, one may be guilty of criminal conduct by failure to act or, stated otherwise, by an act of omission. Id. at 785; see also Brooke Kintner, Note, The Other Victims: Can We Hold Parents Liable for Failing to Protect Their Children from Harms of Domestic Violence, 31 NEW ENG.J. ON CRIM. & CIv. CONFINEMENT 271, 274 (2005) ( [P]arents have a legal duty to take reasonable measures to care for and protect their children. This means that if someone or something is harming their children, they have an affirmative duty to make a reasonable effort to step in and prevent the harm. ); David S. Lockmeyer, Note, At What Cost Will the Court Impose a Duty to Preserve the Life of a Child?, 39 CLEV. ST. L. REv. 577, 592 n.81 (1991) (asserting parents have a duty to aid their children and citing criminal law precedent); Ricki Rhein, Note, Assessing Criminal Liability for the Passive Parent: Why New York Should Hold the Passive Parent Criminally Liable, 9 CARDOZO WOMEN'S L.J. 627, 629 (2003) (indicating that [niumerous states have increasingly punished the passive parent through failure to protect theories or statutes ). But see Commonwealth v. Raposo, 595 N.E.2d 773, 777 (Mass. 1992) (holding that parent's mere omission to act in protecting child is not equivalent of intentionally aiding commission of felony against child). 11. See Landeros v. Flood, 551 P.2d 389, (Cal. 1976) (asserting that physician and hospital that negligently failed to diagnose battered-child syndrome and report case to the state authorities could be liable to child for harm resulting from return of child to abusive mother); Arbaugh v. Bd. of Educ., 591 S.E.2d 235, 239 n.3 (W. Va. 2003) (noting child abuse reporting statutes... expressly create a private cause of action... [in] Arkansas, Colorado, Iowa, Michigan, Montana, New York and Rhode Island ). The Arkansas statute contains various reporting provisions. One provision in the Arkansas law applies to [a]ny person with reasonable cause to suspect child maltreatment, which presumably includes parents. ARK. CODE ANN (a) (2004). Another provision expressly imposes a reporting obligation on people in twenty-nine various categories, including foster parents. See id (b)(11). The Rhode Island statute imposes a reporting obligation on [a]ny person who has reasonable cause to know or suspect that any child has been abused or neglected... or has been a victim of sexual abuse by another child... R.I. GEN. LAws (2004). With respect to sanctions, the Rhode Island law provides: Any person... required by this chapter to report known or suspected child abuse or neglect... who knowingly fails to do so... shall be guilty of a misdemeanor and upon conviction thereof shall be subject to a fine of not more than five hundred dollars ($500) or imprisonment for not more than one year or both,... [And also] civilly liable for the damages proximately caused by that failure. Id See Marquay v. Eno, 662 A.2d 272, 278 (N.H. 1995) (holding that statute requiring any person to report suspected knowledge of child abuse or neglect did not create private cause of action because neither statute nor legislative history directly revealed any such legislative intent); Perry v. S.N., 973 S.W.2d 301, 309 (Tex. 1998) (holding, in action based on failure to report abuse allegedly witnessed at day-care center, that violation of child abuse reporting statute was not negligence per se); Arbaugh, 591 S.E.2d at 241 (holding that child abuse reporting statute did not give rise to implied private civil cause of action); Marc A. Franklin & Matthew Ploeger, Of Rescue and Report: Should Tort Law Impose a Duty to Help Endangered Persons and Abused Children?, 40 SANTA CLARA L. REV. 991, 1022 (2000) ( Most courts, however, have declined to find a civil duty to report child abuse, whether 4 Johnson and Hargrove: The Tort Duty of Parents to Protect Minor Children 2006] TORT DuTv OF PARENTS TO PROTECT MINOR CHILDREN 315 law to support judicial recognition of a general tort duty on parents to protect their minor children from physical harm caused by others. 13 The evolving Restatement (Third) of Torts ( Restatement ) does not recognize the parent-minor child relationship as an exception to the basic noduty-to-rescue rule, 14 though the American Law Institute has been urged to endorse such language. 15 According to the Reporters for the new Rebased on the reporting statute or common law. ); see also Singley, supra note 3, at 237 ( [C]ontend[ing] that imposing civil liability upon mandatory reporters for failing to report suspected abuse is counterproductive to protecting children at risk; current criminal sanctions are sufficient to compel compliance by reporters. ). 13. Some cases indicate that plaintiffs argue the existence of a duty of care owed by a parent to a minor child. See Cambridge Mut. Fire Ins. Co. v. Perry, 692 A.2d 1388, (Me. 1997) (holding that intentional injury exclusion did not bar insurance coverage where child alleged that defendant mother failed to protect her from sexual abuse by father); see also Gen. Accident Ins. Co. of Am. v. Allen, 708 A.2d 828, 835 (Pa. Super. Ct. 1998) (ruling that insurance company was required to defend wife from allegations that she failed to protect her husband's children from sexual abuse by her husband). 14. See generally RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL HARM 37 (Proposed Final Draft No. 1, 2005) (stating that actor whose conduct has not created risk of physical harm does not have duty of care unless court determines that one of exceptions is applicable). According to Section 40 of the Restatement (Third) of Torts, which discusses Duty to Another Based on Special Relationship with the Other : (a) An actor in a special relationship with another owes the other a duty of reasonable care with regard to risks that arise within the scope of the relationship. (b) Special relationships giving rise to the duty provided in Subsection (a) include: (1) a common carrier with its passengers, (2) an innkeeper with its guests, (3) a business or other possessor of land that holds its premises open to the public with those who are lawfully on the premises, (4) an employer with its employees who are: (a) in imminent danger; or (b) injured and thereby helpless, (5) a school with its students, (6) a landlord with its tenants, and (7) a custodian with those in its custody, if: (a) the custodian is required by law to take custody or voluntarily takes custody of the other; and (b) the custodian has a superior ability to protect the other. Id See Am. Law Inst., Discussion of Restatement of the Law Third, Torts: Liability for Physical Harm (Basic Principles), 2004 A.L.I. PROC Professor Mary Coombs of Florida, urging the American Law Institute to recognize the parent-minor child relationship as an exception to the basic no-duty-to-rescue rule, stated: I understand there is always this tension in a Restatement between simply restating what is and trying to move the law forward. Let me urge you to move more towards moving the law forward in terms of familial relationships, parents and minor children, in 41, either by including it as a subsection or, at least when you have Comment n on duty of custodians, to include the familial material, the parents as custodians... Id. at 432. One of the authors of this Article, Professor Vincent R. Johnson, said: Published by Villanova University School of Law Digital Repository, 316 Villanova Law Review, Vol. 51, Iss. 2 [2006], Art. 2 VILLANOVA LAW REVIEW [Vol. 51: p. 311 statement, 16 aside from a few cases cited in the notes, 1 7 there has been almost no judicial consideration of the affirmative duties of family members to each other. 1 8 The commentary to the Restatement, however, clearly invites doctrinal development, stating: One likely candidate for an addition to recognized special relationships is the one among family members. This relationship, particularly among those residing in the same household, provides as strong a case for recognition as a number of the other special relationships recognized in this Section. ' 1 9 The absence of tort precedent relating to parents and minor children is less probative than might first appear. The development of case law in this area was discouraged by once vibrant, common law immunities
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