California Civil Jury Instructions (CACI) (2017)

428. Parental Liability (Nonstatutory)

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428.Parental Liability (Nonstatutory)
[Name of plaintiff] claims that [he/she] 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] failed to
[insert one or both of the following:]
3. [exercise reasonable care to prevent [name of minor]’s conduct;]
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 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 (10th ed. 2005) Torts, §§ 1227–1234
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
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)
429. Reserved for Future Use