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Published: Saturday, 10/9/2010

Can parents be held liable if son commits assault?

Dear Dale: My daughter was the victim of a serious sexual assault by a teenage boy who had left school early one day. I want to know if my daughter can bring a lawsuit against his parents. Does it make a difference if his parents knew he had sexually assaulted someone in the past?

Your daughter has one certain claim against the boy's parents based on a state statute, but it provides a very limited recovery. Under a section in the Ohio Revised Code, a parent of a minor who “willfully and maliciously” assaults someone in a way likely to cause great bodily harm can be liable for damages of up to $10,000, plus the cost of the suit.

Obviously, that's an extremely low recovery given the violence your daughter was subjected to, but it's what that particular code section allows. This is a strict-liability statute, which means your daughter wouldn't have to prove the parents had any knowledge their son would attack her or any duty to prevent such attacks. This is very different from a case grounded in negligence law, which I suspect is what you were asking about because they're far more common.

A person bringing a negligence action — the plaintiff — must show that the defendant owed a duty to the plaintiff; that duty was breached, and the breach resulted in an injury that led to damages for things such as medical bills, lost wages, and pain and suffering.

In this situation, I'd focus on the duty element of the negligence equation. A big part of figuring out whether someone owed a duty is to look at whether it was foreseeable that the defendant's act or failure to act could result in an injury. In other words, lawyers explore whether the defendant should have anticipated that an injury could occur. That's a really boiled-down version of the issue, but I think it at least provides a framework to address your question.

The claim you'd be seeking against the parents would probably be negligent supervision. In this type of claim, the parent had to know of a child's reckless or negligent tendencies. The parent also had to have the ability to exercise control over the child but didn't exercise control. And in a case like this, they'd have to know of what's been termed by some courts as the child's “vicious propensities.”

I'd have to have a lot more information to give you a meaningful answer, but your question speaks about the possibility of the parents knowing the boy had previously sexually assaulted someone. That seems to satisfy the vicious propensities element. However, it's a fair question to ask whether the parents had any idea that the school had let their son out early and, even if they did, did that knowledge place a duty on them to exercise control over him in order to prevent an attack on your daughter.

Setting aside the linguistic legal hoops lawyers have to jump through, let's make it even more basic. Would the parents have any clue that their son would sexually assault your daughter that day whether or not he was let out of school early? Was it foreseeable? I think the attorneys for both parties would explore whether it is reasonable to expect that a parent could be in constant control of a teenager. And I think that would depend a lot on what the parents knew about the boy's behavior, either through prior conduct or prior comments.

The bottom line is that your daughter has one clear cause of action based on the state statute, but the recovery is capped at $10,000. Whether she has a negligent supervision claim is something you could explore, but you might not have all the information you'd need unless a lawsuit were filed.

Before I wrap up, it's worth mentioning that your daughter has civil claims she could make against her attacker for his intentional, violent acts against her. It's unlikely, though, that he'd have any money to satisfy any judgment against him.

Dale Emch practices law at the Dale Emch Law Office, LLC, in Toledo. In his column, he will discuss general legal principles and answer readers' questions. Neither Mr. Emch nor The Blade present or intend his column to be taken as legal advice. Readers seeking legal advice should consult with an attorney. Readers may send their questions to 615 Adams St. Toledo, OH 43604 or dale@daleemch.com. His Web site is www.daleemch.com.



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