Action by a Parent for a Tort against His or Her Child

Torts: Negligence

Family Law: Parental Duties & Rights: Care & Control of Children

In accordance with general tort principles, a person who injures a child through his or her tortious conduct is liable to the child for the child’s damages. A parent who is entitled to the child’s services or who has a legal duty to provide medical treatment for the child is also entitled to damages from the person for the person’s tortious conduct towards the child.

In order for a parent to recover damages from a person who injures the parent’s child, the child must have a cause of action against the person. If the child consented to the conduct or if the child was contributorily negligent, the parent may not be entitled to a cause of action against the person.

A parent’s cause of action against a person for the person’s tortious conduct towards the child is a separate cause of action from the child’s cause of action against the person. The parent cannot recover the same damages as the child. In other words, the parent cannot recover damages for the child’s bodily injuries. The parent can only recover damages for his or her loss of the child’s services or for medical expenses that he or she incurred for the child’s medical treatment.

In order for a parent to recover damages from a person who injures the parent’s child, the parent must be legally entitled to custody of the child and must be legally entitled to the child’s services or earnings. If the parent does not have legal custody or if the child is emancipated, the parent is not entitled to damages.

In order for a parent to recover damages from a person who injures the parent’s child, the parent must incur a loss of the child’s services or a loss of the child’s ability to perform services on behalf of the parent. This does not mean that the child must actually perform services on behalf of the parent. For example, if the child is too young to perform services on behalf of the parent, the parent is still entitled to damages if the person’s injury to the child will impair the child’s ability to perform services in the future.

Damages for purposes of this type of action include the value of the services that the child would have been able to perform on behalf of the parent during his or her minority. Only the child is entitled to recover the value of his or her services after his or her majority. In determining the value of the child’s services, the age and health of the child are considered. The parent is also entitled to recover any reasonable medical expenses that he or she incurred as a result of the child’s injuries. The parent may also be entitled to recover future medical expense that he or she is expected to incur on behalf of the child. However, the parent is not entitled to recover damages for his or her emotional distress or for the child’s emotional distress.

If a parent consents to a person’s tortious conduct towards the parent’s child, the parent is not entitled to recover damages from the person. If the parent was contributorily negligent or if the parent assumed the risk, the parent cannot recover damages from the person. However, the parent’s consent, contributory negligence, or assumption of the risk cannot be used as a defense in any action by the child against the person. Those defenses only bar the parent’s action.