Discussions of parental liability by courts and legal scholars are often tinged with fear: fear that government interference will chill parental autonomy; fear that parents will be held liable for their children’s every misdeed; and, recently, fear that a new generation of so-called “helicopter parents” who hover over their children’s every move will establish unrealistically high legal standards for parenting. However, in the context of common law suits against parents, these fears are misguided. To the contrary, courts have consistently shielded wealthier parents — those most likely to be defendants in civil suits — from exposure to liability for conduct related to their parenting practices.
This Article critically examines the common law of parental (non-) liability, both historically and in light of current cultural trends. Parental liability takes two forms: liability for parents’ harm to their children, and liability of parents for harms caused to others by their children. Individually these subjects have received remarkably little scholarly attention; together they have received none. Yet both types of parental liability are central to ongoing cultural debates about parenting, as well as to current controversies about the role of courts in establishing legal duty. A thorough re-consideration of parental liability is particularly timely in light of the new Restatement (Third) of Torts, which speaks directly to issues that are central to both forms of parental liability.
This Article concludes that courts should hold parents to a standard of reasonable care. The American common law’s squeamishness about parental liability is understandable, but unnecessary. Just as helicopter parents overreact to unsubstantiated fears of stranger abduction based on anecdotes and media hype, limits on common law parental liability are overreactions to unsubstantiated fears of collusion, government interference and biased juries. To be sure, aspects of parental liability raise significant concerns, but courts can and should address them narrowly using established tort law principles, without imposing blanket no-duty rules. Juries, in short, should be allowed to judge parents.Porter comments that -
Holding parents to a consistent standard of reasonable care with respect to their children would alleviate the policy and the doctrinal harms of the current approach. As a matter of family law policy, the current common law standards applied to parents represent clashing views of childhood and the role of parents. Furthermore, they are inconsistent with prevailing legal norms related to the regulation of families. The standard of reasonable care, which does not demand perfection, strikes a familiar and proper balance between the benefits and burdens of parenthood. As a matter of tort doctrine, imposing a standard of reasonable care on parents would contribute toward greater consistency and equity in negligence law by alleviating the problems associated with judges using duty to advance unarticulated or unjustified policy goals. Nevertheless, many of the original justifications for parental immunity remain entrenched in modern case law. In essence, these justifications are all based on valid fears about granting juries, judges, or anyone, the power to evaluate parents. While recognizing the legitimacy of these concerns, this Part addresses each and concludes that, taken either collectively or individually, they do not require existing limitations on parental liability.
A. Fear of a “helicopter parent” standard of care.
According to cultural commentators and recent scholarship, many middle and upper class parents with one or two children have become suffocating fear-mongers whose personal identities are largely dependent on ensuring the minute-by-minute safety and optimal educational development of their children. Scholars argue that this mainstream, middle class, predominantly white value system will permeate (or has permeated) legal norms, thus forcing all families to conform to risk-averse, expensive, and time-consuming supervision of children in order to escape criminal or civil sanction. Related to this is a measured but distinct idealization of “the old days,” generally meaning the 1970s, when parents “may” have allowed “the youngest of schoolchildren” the independence to “climb trees, ride [their] bikes in the neighborhood, stay home alone for an hour or two, and walk [themselves] to school.” Scholars have argued that the narrowing of the parental immunity doctrine “is an important enabling structure for the incorporation of the practices of Intensive Parenting.”
Unquestionably, social norms concerning children change over time. In colonial America, children were left largely unattended while parents labored, and were fostered out as apprentices at ages as young as seven. One result of this was likely early self-reliance, but it was also rather common for children to come to serious physical harm. In the nineteenth century, some children worked both in farms and in urban factories. However, hovering parents are hardly a new phenomenon. Even in the nineteenth century child-centered, intensive parenting was becoming the middle class norm in both urban and agricultural areas. Mothers were charged with providing constant and appropriately educational stimulation for children, as well as creating “an idyllic childhood rich with wonderful experiences that would create fond memories and produce healthy minds and bodies.” Voluminous advice literature assisted women in these endeavors. There were helicopter mothers long before there were helicopters.
Moreover, even the most vehement anti-helicopter parents (themselves generally members of the middle class parenting culture they criticize) subscribe to increased safety norms over time. As Lenore Skenazy, leader of the “Free Range Kids” movement, puts it, “Free Rangers believe in helmets, car seats and seat belts—safety!” And, statistically speaking, such safety norms have dramatically improved safety outcomes for children.
The fact that norms evolve, and that middle class parents have led the way by minimizing risks and maximizing educational opportunities, does not alone justify granting parents immunity from liability. Indeed, it is ironic to argue that parents must be sheltered from other parents who believe too firmly in over-sheltering. The same acts and omissions involved in parenting cases—children drowning when left unattended by the pool; children getting hit by cars; children holding keg parties when their parents are away for the weekend, leading to drunk driving deaths; children falling out of windows, shopping carts, or off slides—are routinely litigated against other supervisory figures, including schools, colleges, day cares, babysitting agencies, product manufacturers, and businesses. Those other parties cannot raise the “helicopter parent” defense. The effect of limitations on parental liability is to give children’s primary caretakers—those who get the benefit and services of children—the least legal responsibility.
The impact on others of shielding parents from liability is starkly evident in joint liability cases. When a child is injured and brings suit against a product manufacturer—for example, the maker of a tractor mower, of a shopping cart, or of lead paint—it is nonsensical to prohibit a jury from assigning some portion of responsibility to the parent who was allegedly supervising the child. Yet courts often bar contribution suits against parents, although those parents’ negligent supervision might arguably have been the primary cause of the child’s injury. In several New York cases involving children’s alleged injury from lead paint, courts simply brushed aside parental immunity and allowed the claims. Bernstein and Triger, concerned about over-parenting, take this as an ominous sign that “courts are increasingly willing to consider imposing liability on parents who do not comply with existing monitoring norms.” But if a parent is aware of a risk to her child and has been informed about how to mitigate and eliminate that risk, but negligently fails to take action, it is fair that the parent should bear part of the legal responsibility for the harm she caused. Parents, like other parties, should conform to norms of reasonableness.
The lead paint cases highlight another problem with the immunity rule: Courts—themselves prey to the cultural biases of judges—may not be consistently reasonable in their determination that the immunity should apply. In Zellmer v. Zellmer, the defendant step-father was granted immunity (conditioned on a factual finding that he was acting in loco parentis) for the drowning death of a three-year-old. The court’s holding necessarily implied that the defendant’s conduct constituted “ordinary negligence,” as to which immunity applied. But even at the summary judgment stage, there was evidence that pointed to willful misconduct, including testimony that the girl would not have gone outside on a cold December night alone, dressed only in a light shirt, when she was home sick from daycare; and evidence that the defendant had taken out a life insurance policy on the girl immediately upon marrying her mother three months earlier. Ultimately the defendant was criminally prosecuted and convicted of murdering the three-year-old girl. The civil court’s immunity determination not only usurped the jury’s province to assess the quality of a defendant’s conduct; it was also incorrect. Fears of over-judgmental, culturally prejudiced juries are understandable, but do not justify a common-law carve-out for parents in tort. Courts can address concerns about the standard of care in the context of individual suits, using basic tools of the trade: admitting expert and lay testimony on the standard of reasonable care within a community; and giving jury instructions making explicit that parents are not insurers of or for their children; and defining a reasonable standard of care. Several states that have abolished parental immunity have replaced it with a “reasonable parent” standard, a semantic device that reinforces the nature of parents’ roles. As they always have, courts may direct verdicts if no reasonable juror could find liability, and may use remittitur or remand for a new trial if the jury’s damages award is excessive or seems based on prejudice or passion. Notably, there has been no scholarly analysis in states that have abolished parental immunity arguing that ensuing cases were unduly prejudicial toward parents or held parents up to an idealized standard of care.
B. Fear that parental liability creates undue state interference in the family.
A related concern animating limits on parental liability is the fear of undue government interference in the family, or—as one court put it—“interjecting the court into family affairs as some overarching nanny.” Here too, while the fear is legitimate, allowing juries to adjudicate civil tort suits against parents is a relatively minimal intrusion into family life in comparison with other longstanding forms of family regulation: Both social and legal norms have always recognized limits on parental authority that go far beyond allowing parents to be defendants in civil tort suits. The Supreme Court has recognized the significance of parents’ rights to make decisions regarding their children’s upbringing, education, and religious practices. But the constitutional recognition of family privacy has always been limited by reasonable governmental regulation, including laws requiring education, prohibiting child labor, and laws governing custody disputes. Notwithstanding its rhetoric, the Court’s holdings regarding parental rights have always been rather muted and pragmatic. As the Court stated in Meyer v. Nebraska, “the state may do much, go very far, indeed, in order to improve the quality of its citizens, physically, mentally and morally.”
Parental immunity took root at the turn of the twentieth century, a time period marked by an explosion of interest in privacy and the founding of formal studies of child development. It was also marked by an equally intense interest in child welfare, backed up by a range of legal procedures that demolished the privacy of families considered to be deviant, which at that time (as often is true now) meant families living in urban poverty. The New York Society for the Prevention of Cruelty to Children, founded in 1874, set out to “rescue” children living in slums from “the human brutes who happened to possess the custody or control of them.” A major child psychology textbook failed to mention the effect of parenting, but focused on the dangers of a bad environment—parts of the city where “there are many pool-rooms, saloons, and gambling houses.”
Propelled by the influential Society, New York passed laws authorizing “intense scrutiny of family life, the frequent arrest and incarceration of parents found wanting, and the systematic institutionalization of their children.” By the end of 1884, fifty-six cruelty societies existed nationwide. In 1903, Colorado became the first state to criminalize the vague offense of contributing to the delinquency of a minor. Thus, parents who were poor or otherwise considered socially deviant risked having children forcibly taken away, or risked criminal sanctions for their children’s poor behavior. At the same time, middle and upper class parents were literally immune from civil liability for even obvious and severe physical abuse. As evidenced by parental immunity cases, the privacy class divide remains today. Wealth buys parents both physical privacy—their disciplinary tactics and parenting mistakes are hidden within private homes —and legal privacy. Just as nineteenth century judges were “far more likely to appreciate the benefits of the tort immunity rule (to propertied husbands) than to register its costs (to battered wives),” judges empathize with the supervisory challenges facing parents rather than the un-redressed harms to children.
In contrast, Hasday points out, government programs intended to support poor families are “driven by suspicion of parental judgment, and an eagerness to scrutinize parental conduct and parental behavior.” Moreover, legislatures have passed a wide range of statutes intended to incentivize parents to assume responsibility and punish those who do not. These statutes, which impose civil or criminal sanctions on parents for children’s willful and malicious acts, vandalism, truancy, and for contributing to children’s delinquency, indicate that parental responsibility—and liability—is a social norm. Unfortunately, many of those limits fall disproportionately on poorer families. Similarly, poor and fragmented families are vastly more likely to have their children removed and placed in the foster care system—a modern, more humane version of the institutions supported by the child cruelty societies—or their parental rights terminated. And among parents do neglect their children, working class or unemployed parents are far more likely to be prosecuted than middle or upper class parents. Thus, to the extent that there is a social norm of non-interference in the family, it is not enforced uniformly or fairly. The parental immunity doctrine thus illustrates the stark contrast between the broad privacy rights accorded middle and upper class parents (those most likely to be defendants in civil lawsuits) and the long tradition of interference in families that are poor or otherwise deviate from prevailing social norms. In this context, privacy is “a virtual commodity purchased by the middle class and the well to do.”
Indeed, the common law of parental liability itself demonstrates the increasing acceptance of state regulation of families. At first the immunity covered all parental conduct, and paralleled an immunity that applied between spouses. Now inter-spousal immunity has been almost entirely abolished and there are significant limitations on parental immunity. In addition, the common law recognizes that parents owe an affirmative duty to control their children from harming others.