California Civil Jury Instructions (CACI)

722. Adult’s Liability for Minor’s Permissive Use of Motor Vehicle

[Name of plaintiff] claims that [he/she] was harmed and that [name of defendant] is responsible for the harm because [name of defendant] gave [name of minor] permission to operate the vehicle. To establish this claim, [name of plaintiff] must prove all of the following:

1. That [name of minor] was negligent in operating the vehicle;

2. That [name of plaintiff] was harmed;

3. That [name of minor]’s negligence was a substantial factor in causing the harm; and

4. That [name of defendant], by words or conduct, gave [name of minor] permission to use the vehicle.

New September 2003; Revised April 2004, October 2004

Directions for Use

Under Vehicle Code section 17708, an element of this cause of action is that the defendant must have “custody” of the minor driver. The instruction omits this element because it will most likely be stipulated to or decided by the judge as a matter of law. If there are contested issues of fact regarding this element, this instruction may be augmented to include the specific factual findings necessary to arrive at a determination of custody.

Sources and Authority

  • Vehicle Code section 17708 provides: “Any civil liability of a minor, whether licensed or not under this code, arising out of his driving a motor vehicle upon a highway with the express or implied permission of the parents or the person or guardian having custody of the minor is hereby imposed upon the parents, person, or guardian and the parents, person, or guardian shall be jointly and severally liable with the minor for any damages proximately resulting from the negligent or wrongful act or omission of the minor in driving a motor vehicle.”
  • “[I]t was incumbent upon [plaintiffs], in order to fasten liability upon [the parents] for the minor’s negligence, to establish two necessary facts. These facts were, first, that at the time the collision occurred respondents had custody of the minor and, second, that they had given to the minor their permission, either express or implied, to his driving the automobile by the negligent operation of which the injuries were caused.” (Sommers v. Van Der Linden (1938) 24 Cal.App.2d 375, 380 [75 P.2d 83].)
  • “Whether or not a sufficient custody existed, within the meaning of the statute, might well depend upon evidence of specific facts showing the nature, kind and extent of the custody and right of control which the respondent [grandfather] actually had.” (Hughes v. Wardwell (1953) 117 Cal.App.2d 406, 409 [255 P.2d 881].)
  • “In the absence of statute, ordinarily a parent is not liable for the torts of his minor child. A parent, however, becomes liable for the torts of his minor child if that child in committing a tort is his agent and acting within the child’s authority.” (Van Den Eikhof v. Hocker (1978) 87 Cal.App.3d 900, 904–905 [151 Cal.Rptr. 456], internal citations omitted.)
  • “ ‘[P]erson having custody of the minor’ means person having permanent legal custody, and not a person such as a school teacher whose control over his pupils is limited in time and scope.” (Hathaway v. Siskiyou Union High School Dist. (1944) 66 Cal.App.2d 103, 114 [151 P.2d 861].)

Secondary Sources

6 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 1256–1259

California Tort Guide (Cont.Ed.Bar 3d ed.) Automobiles, §§ 4.42–4.43

2 Levy et al., California Torts, Ch. 20, Motor Vehicles, § 20.30[1] (Matthew Bender)

8 California Forms of Pleading and Practice, Ch. 82, Automobiles: Causes of Action, § 82.16, Ch. 83, Automobiles: Bringing the Action, § 83.133 (Matthew Bender)

2 California Civil Practice: Torts (Thomson West) § 25:52