CACI No. 428. Parental Liability (Nonstatutory)

Judicial Council of California Civil Jury Instructions (2023 edition)

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428.Parental Liability (Nonstatutory)
[Name of plaintiff] claims that [he/she/nonbinary pronoun] was harmed
because of [name of defendant]’s negligent supervision of [name of minor].
To establish this claim, [name of plaintiff] must prove all of the following:
1. That [name of defendant] [insert one or both of the following:]
1. [observed [name of minor]’s dangerous behavior that led to [name
of plaintiff]’s injury;] [or]
1. [was aware of [name of minor]’s habits or tendencies that created
an unreasonable risk of harm to other persons;]
2. That [name of defendant] had the opportunity and ability to
control the conduct of [name of minor];
3. That [name of defendant] was negligent because [he/she/nonbinary
pronoun] failed to [insert one or both of the following:]
3. [exercise reasonable care to prevent [name of minor]’s conduct;]
[or]
3. [take reasonable precautions to prevent harm to others;]
4. That [name of plaintiff] was harmed; and
5. That [name of defendant]’s negligence was a substantial factor in
causing [name of plaintiff]’s harm.
New September 2003; Renumbered from CACI No. 410 December 2013
Directions for Use
This instruction is not intended for use for claims of statutory liability against
parents or guardians based on a minor’s willful conduct, e.g., Civil Code section
1714.1 (willful misconduct), section 1714.3 (discharging firearm), or Education
Code section 48904(a)(1) (willful misconduct).
Sources and Authority
• “While it is the rule in California . . . that there is no vicarious liability on a
parent for the torts of a child there is ‘another rule of the law relating to the
torts of minors, which is somewhat in the nature of an exception, and that is that
a parent may become liable for an injury caused by the child where the parent’s
negligence made it possible for the child to cause the injury complained of, and
probable that it would do so.’ ” (Ellis v. D’Angelo (1953) 116 Cal.App.2d 310,
317 [253 P.2d 675], internal citations omitted.)
• “Parents are responsible for harm caused by their children only when it has been
shown that ‘the parents as reasonable persons previously became aware of habits
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or tendencies of the infant which made it likely that the child would misbehave
so that they should have restrained him in apposite conduct and actions.’ ”
(Reida v. Lund (1971) 18 Cal.App.3d 698, 702 [96 Cal.Rptr. 102], internal
citation omitted.)
• “In cases where the parent did not observe the child’s conduct which led to the
injury, the parent has been held liable where he had been aware of the child’s
dangerous propensity or habit and negligently failed to exercise proper control or
negligently failed to give appropriate warning. In other cases, where the parent
did not observe and was not in a position to control the conduct which
endangered the plaintiff, recovery was denied on the ground that there was no
showing that the parent knew of any dangerous tendency. What is said about
‘propensity’ or ‘habit’ in those cases has no applicability where the parent is
present and observes the dangerous behavior and has an opportunity to exercise
control but neglects to do so.” (Costello v. Hart (1972) 23 Cal.App.3d 898,
900-901 [100 Cal.Rptr. 554], internal citations omitted.)
• “ ‘The ability to control the child, rather than the relationship as such, is the
basis for a finding of liability on the part of a parent. . . . [The] absence of such
ability is fatal to a claim of legal responsibility.’ The ability to control is inferred
from the relationship of parent to minor child, as it is from the relationship of
custodian to charge; yet it may be disproved by the circumstances surrounding
the particular situation.” (Robertson v. Wentz (1986) 187 Cal.App.3d 1281, 1290
[232 Cal.Rptr. 634], internal citations omitted.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1378-1385
California Tort Guide (Cont.Ed.Bar 3d ed.) General Principles, § 1.25
1 Levy et al., California Torts, Ch. 1, Negligence: Duty and Breach, § 1.12; Ch. 8,
Vicarious Liability, § 8.08 (Matthew Bender)
6 California Forms of Pleading and Practice, Ch. 58, Assault and Battery, § 58.16
(Matthew Bender)
32 California Forms of Pleading and Practice, Ch. 367A, Minors: Tort Actions,
§ 367A.32 (Matthew Bender)
33 California Forms of Pleading and Practice, Ch. 380, Negligence, § 380.131
(Matthew Bender)
16 California Points and Authorities, Ch. 165, Negligence, § 165.130 (Matthew
Bender)
31 California Legal Forms, Ch. 100A, Personal Affairs of Minors, § 100A.251
(Matthew Bender)
1 California Civil Practice: Torts §§ 3:32-3:35 (Thomson Reuters)
CACI No. 428 NEGLIGENCE
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