Grandparents, Parents, Brothers and Sisters: Guardians What are You Risking Because of Child, Part 2

BULLIES AND PARENTS OF BULLIES BEWARE
Prepared By Richard A. Mann

In my previous article, I addressed the liability you incur by signing for a child’s driver’s license in my article GRANDPARENTS, PARENTS, BROTHERS AND SISTERS HAVE YOU JUST UNKNOWINGLY SIGNED FOR LIABILITY? Part I. As previously noted, we in the family law field of practice are seeing custody or guardianship of children going to people other than their parents. Many children in Indiana are in the custody of one (1) parent or family member either because of divorce, the children are born out of wedlock, or the parent not being able to care for the child and leave the child with a relative. If your child is engaged in an activity such as bullying, vandalism, shoplifting, fights etc. you could be liable. If you or your child are a victim of any of these activities, you may have options you have not considered.

STRICT LIABILITY STATUTE FOR PARENTS
At common law people were generally not responsible for the acts of their children. Indiana has a law that changes that as it applies to the parent of a child. Pursuant to I.C. 34-31-4-1 “…, a parent is liable for not more than five thousand dollars ($5,000) in actual damages arising from harm to a person or damage to property knowingly, intentionally, or recklessly caused by the parent’s child if: (1) the parent has custody of the child; and (2) the child is living with the parent.” This means that if the child lives with a parent and that child knowingly, intentionally, or recklessly harms property of a person you can be strictly liable for up to $5,000 in damages. By strict liability this means even if you are not at fault you can still be sued.

LIABILITY FOR PARENTS AND GUARDIANS
 Where the guardian or custodian may be at risk or the parent for more than $5,000 is set forth in the Wells decision. In that case the Court of Appeals found a parent liable but the reasoning could be applied to a guardian and there is no limit in such cases. Furthermore, it is likely that there is no insurance coverage available so you could be made to pay the entire judgment yourself.

“In addition to Indiana Code § 34–4–31–1, there are four common law exceptions to the general rule that a parent is not liable for the tortious acts of her child.

(1) where the parent entrusts the child with an instrumentality which, because of the child’s lack of age, judgment, or experience, may become a source of danger to others; (2) where the child committing the tort is acting as the servant or agent of its parents; (3) where the parent consents, directs, or sanctions the wrongdoing; and (4) where the parent fails to exercise control over the minor child although the parent knows or with due care should know that injury to another is possible.

K.C. v. A.P. (1991), Fla.App., 577 So.2d 669, 671.2 Wells’ claim is based on the fourth common law exception. She alleges that Hickman was negligent because Hickman failed to control her minor son when she knew or should have known that L.H. would injure D.E.”

Wells v. Hickman, 657 N.E.2d 172, 176 (Ind. Ct. App. 1995)

Some examples of such cases are Hyman v. Davies, 453 N.E.2d 336, where the child broke into a neighbor’s home and stole their car; Wells v. Hickman, 657 N.e.2d 172, where the child beat a person to death; State Farm Fire & Casualty Company v. T.B., 858 F. Supp.2d 971, where the son struck another minor in the mouth and the insurance company refused to defend the suit against the parents and the child; Stewart v. Swartz, 57 Ind. App. 249, 106 N.E. 719, in which the court found that the parent would be liable when he knew his children had stretched a rope across a road (the case was remanded for other reasons); Johnson v. Toth, 516 E.E.2d 85, where a child struck another child with a pop bottle; Shepard v. Porter, 679 N.E.2d 1383, in which a 13-year-old accidently burned when lighter fluid was ignited (the parents were not held liable based solely on facts of the case); and Economy Premier Assurance Company v. Wernke, 521 F. Supp.2d 852, where the son struck someone in the face causing damage. In Wernke, the insurance company was successful in having the court declare that the insurance company did not have to defend or pay for the injuries when their son struck someone which resulted in the victim having a broken jaw.

LIABLITY FOR CRIMINAL ACTIVITY
Another source of liability is if the child is involved in a criminal organization commonly known as a gang.

A parent of a child who is a member of a criminal organization (as defined in IC 35-45-9-1), who actively encourages or knowingly benefits from the child’s involvement in the criminal organization, is liable for actual damages arising from harm to a person or property intentionally caused by the child while participating in a criminal organization activity if: (1) the parent has custody of the child; (2) the child is living with the parent or guardian; and (3) the parent failed to use reasonable efforts to prevent the child’s involvement in the criminal organization.

Ind. Code Ann. § 34-31-4-2.

The statute uses the terms parent and guardian and as such an argument could certainly could be made that a grandparent with custody of a grandchild could be liable. A criminal organization or gang does not have to be a major gang as the law only requires that it be made up of 3 or more people that (1) either: (A) promotes, sponsors, or assists in; (B) participates in; or (C) has as one (1) of its goals; or (2) requires as a condition of membership or continued membership; the commission of a felony, an act that would be a felony if committed by an adult, or a battery offense included in IC 35-42-2. Ind. Code Ann. § 35-45-9-1.   In Cole v. State, 967 N.E.2d 1044, the defendant was convicted of criminal gang activity (now criminal organization activity) when he and 2 others committed felonies. Shop lifting can be a felony; joy riding can be a felony; hitting someone with your fist or pop bottle can be a felony if it causes moderate bodily injury or is committed against a person under 14 years of age by someone 18 years old or over. You could be liable, for example, if your child and 2 others decide to go do vandalism if the damage they cause is $750 or more. It does not take much damage to cost $750.

CONCLUSION

If you have a child or are contemplating taking the custody of a child of another person, you should consider the above issues. You should consult your attorney about the possibilities raised in this article. You should also speak to your insurance agent and if you do not have one you should get one. You need to look at what your automobile, homeowners, renters, and umbrella coverages are and, even as important, what they do not cover. I once read a case where the appellate court judge said after reading the insurance policy what the coverage gave the exclusions took away. You should also consider if your child is a bully or a victim of bullying how these laws can affect your liability or your options to stop such activity.

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Richard A. Mann has been practicing Family Law for more than 37 years in the Indianapolis area and throughout the State of Indiana. He is a Certified Family Law Specialist as certified by the Family Law Certification Committee, a Registered Family Law and Civil Law Mediator and Guardian ad Litem and Parenting Coordinator. Mr. Mann and his firm, Mann Law, P.C. Attorneys at Law, are proud to have been one of the firms who represented Same-Sex couples who were successful in overturning Indiana’s ban on Same-Sex marriage. He continues to fight discrimination in the law.

While a large portion of Mr. Mann’s practice is in the Family Law area he also represents several corporations on contract, personnel and other matters. He also has a varied General Practice in wills, estates, juvenile matters, collections, probate throughout the state of Indiana. Mr. Mann has tried murder cases as well as a death penalty case.

Mr. Mann has been selected for inclusion in Super Lawyers SuperLawyers Edition consecutively from 2009 – 2017.

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ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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