Wells v. Hickman

657 N.E.2d 172



The fourth exception, failure to control, to the general rule that a parent is not liable for the tortious acts of her child, does not impose vicarious liability based solely upon the familial relationship. Under that exception, a parent's negligence is a separate act of negligence independent of the child's wrongful act. The parent's negligence is non-actionable in the absence of a wrongful act of the child. The failure to control exception provides that a parent has a duty to exercise control over her minor child when the parent knows or should know that injury to another is possible. To be liable the parent must know that her child had a habit of engaging in the particular act or course of conduct which led to the plaintiff's injury.


In an action to recover for wrongful death, the plaintiff sued the mother of a child who beat her son to death as well as the child’s grandparents who owned the property where the incident took place. Before this incident, the child had killed a pet dog and a pet hamster by beating both to death and often exhibited anger generally. The plaintiff argued that the child’s mother and grandparents failed to control the child and that their negligence resulted in her son’s death. The trial court granted summary judgment for the mother, based upon the determination that her liability was limited to $3,000 by Indiana Code § 34-4-31-1. The plaintiff appealed this decision, which was consolidated with the grandparents’ appeal of the denial of their motion for summary judgment.


Is a parent liable for her child’s negligence absent any negligence on the part of the parent?




As a general rule, the common law does not hold a parent liable for the tortious acts of her minor children. Indiana Code § 34-4-31-1, however, imposes strict or vicarious liability upon a parent for the harm or damage caused by the knowing, intentional or reckless act of her minor child. There is no requirement under the statute that the parent must be negligent in order for the liability to attach, but the statute limits the parent’s liability to $3,000. The court held that the mother was vicariously liable under the statute for her child’s act resulting in the death of the plaintiff’s son. In addition to the statute, Indiana also recognizes four common law exceptions to the general rule against parental liability. The plaintiff argued that the defendants’ conduct satisfied one of these four exceptions; that is, the failure to control the child, which is a separate act of negligence on the part of the parent. The court concluded that although the mother was aware of her child’s violent history, it was not reasonably foreseeable that the child would beat the plaintiff’s son to death, so the mother did not have a duty to exercise control over the child and was not separately negligent. The court also reasoned that if the exception did not apply to the mother, it did not extend to the grandparents who were unaware of the child’s presence on their property.

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