By Matthew King

If your client is a minor, or has been injured by a minor, it is very important to understand the unique rules and standards applicable to children. First, children under the age of six do not have the mental capacity to be negligent (or contributorily negligent), as a matter of law.1 The Courts reason that children under six are “creature[s] of impulse and impetuosity. [They have] no habits of deliberation and forethought.”2 On these same grounds, a child under six cannot be a CR 12(i) non-party at fault, to which fault can be assigned under RCW 4.22.070.

If, however, the child is over six, but under 16, there is a specialized standard of care. The child’s conduct is measured by the conduct of a reasonably careful child of the same age, intelligence, maturity, training, and experience.3 This standard was adopted to reflect the “child’s immaturity of judgment and lack of capacity to appreciate dangers.4

In general, however, parents are not vicariously liable for their children’s torts.5 Parents are liable by statute for the willful and malicious destruction of property by their minor children.6 This liability is capped at $5,000.00.7

However, a parent (or other guardian or caretaker) may be liable on a negligent supervision claim. Under the doctrine of negligent supervision, parents are liable for the intentional torts of their minor children when: (1) the child has a dangerous proclivity; (2) the parents know of the child’s dangerous proclivity; and (3) they fail to exercise reasonable care in controlling that proclivity.8

Similarly, parents are liable to third parties for the tortious conduct of a child if they know of the child’s dangerous proclivity and fail to take reasonable measures to control that proclivity.9

However, when children have been injured as a result of their parents’ failure to supervise, the parents cannot be sued for negligent supervision.10 Unless a parent’s negligence is “willful or wanton,” the law will not provide a cause of action that would assuredly interfere with basic parenting decisions.11 The Washington Supreme Court has noted that “there are certain areas of activities within the family sphere involving parental discipline, care and control that should remain free of judicial activity.”12 n

1 RCW 4.22.015.

2 Von Saxe v. Barnett, 125 Wash. 639, 217 P. 62 (1923).

3 Bauman v. Crawford, 104 Wn.2d 241, 244, 704 P.2d 1181 (1985).

4 Id.

5 Sun Mountain Productions, Inc. v. Pierre, 84 Wn. App. 608, 929 P.2d 494 (1997).

6 RCW 4.24.190.

7 Id.

8 Norton v. Payne, 154 Wash. 241, 244-45, 281 P. 991 (1929); Eldredge v. Kamp Kachess Youth Servs., Inc., 90 Wn.2d 402, 408, 583 P.2d 626 (1978); Carey v. Reeve, 56 Wn. App. 18, 22, 781 P.2d 904 (1989).

9 Eldredge v. Kamp Kachess Youth Servs., Inc., 90 Wn.2d 402, 408, 583 P.2d 626 (1978); Norton v. Payne, 154 Wash. 241, 244, 281 P. 991 (1929); Restatement (Second) of Torts ¤ 316 (1965).

10 Carey v. Reeve, 56 Wn. App. 18, 781 P.2d 904 (1989).

11 Jenkins v. Snohomish County Public Utility Dist. No. 1, 105 Wn.2d 99, 713 P.2d 79 (1986).