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Although a child of tender years may be incapable of committing a legal delict because of his lack of capacity to discern the consequences of his act, nevertheless, if the act of a child would be delictual except for this disability, the parent with whom he resides is legally at fault and, therefore, liable for the damage occasioned by the child's act. This legal fault is determined without regard to whether the parent could or could not have prevented the act of the child, i. e., without regard to the parent's negligence. It is legally imposed strict liability. This liability may be escaped when a parent shows the harm is caused by the fault of the victim, by the fault of a third person, or by a fortuitous event.
Laura Wallace Turner, a sixty-two-year-old woman, was walking on a side-walk in the city of New Orleans when she was struck from the rear and injured by a bicycle ridden by six-year-old Gregory Bucher. In their trial court petition, the Turners alleged the child's independent negligence. It is not disputed that if gauged by the usual standards of conduct, the actions of Gregory Bucher would have constituted negligence on his part. However, the Turners conceded that under the jurisprudence, a six-year-old child could not be capable of fault or negligence. On appeal, the Turners urged only the personal negligence of the parents in their supervision of the child as the basis of liability of the father for the injury caused by the child. The court of appeal found no independent negligence by the father.
Was the father of a six-year-old child liable for damages which arose when the child struck Laura with his bicycle on a city sidewalk?
The court held that the father was liable under La. Civ. Code Ann. art. 2318. The court concluded that although a child of tender years could be incapable of committing a legal delict because of his lack of capacity to discern the consequences of his act, nevertheless, if the act of a child would be delictual except for this disability, the parent with whom he resided was legally at fault.