§75.06 The Third Party and the Marital Community

• Jurisdiction: Washington

§ 75.06 THE THIRD PARTY AND THE MARITAL COMMUNITY

[1] Torts by a Family Member Against a Third Party

[a] Vicarious Liability for the Tort of a Spouse

A spouse is not vicariously liable for the tort of his or her partner simply because of the relationship. RCW 26.16.190. The community is liable for the tort of either spouse if the tort is calculated to be, is done for, or results in a benefit to the community or is committed in the prosecution of community business. Kilcup v. McManus, 64 Wn.2d 771, 394 P.2d 375 (1964). The victim of a separate tort may collect a judgment from a married tortfeasor's interest in the community property if the tortfeasor's property is insufficient to satisfy the judgment. Keene v. Edie, 131 Wn.2d 822, 935 P.2d 588 (1997).

Courts frequently have stretched logic and reasoning to find "community benefit" so as to attach liability. Werker v. Knox, 197 Wash. 453, 456, 85 P.2d 1041 (1938) (describing a "trend . . . in the direction of finding ways and means of imposing such liabilities upon the community"). For instance, liability that arose from a wife's drinking with her friends was held to involve a benefit to the community, Moffitt v. Krueger, 11 Wn.2d 658, 120 P.2d 512 (1941), as was a car trip to buy a sweater, Werker, 197 Wash. 453.

The Washington Supreme Court did distinguish Moffitt later in Mackenzie v. Sellner, 58 Wn.2d 101, 361 P.2d 165 (1961). In that case, when the wife committed the tortious act, the parties were already living separate and apart and a property settlement agreement had been drafted separating the parties' assets—the parties just had not finalized their divorce yet. Given those circumstances, the court found that there was no vicarious liability, because there was no community that could have benefitted from the wife's actions (driving under the influence and getting in a car accident). "Nothing but the shell of the marriage contract remained at the time the tort occurred." Id. at 104.

In an extreme case, a husband's sexual molestation of a young girl in his and his wife's care was held to impose community liability. La Framboise v. Schmidt, 42 Wn.2d 198, 254 P.2d 485 (1953). In that case, the court used a two-pronged test to determine whether the community would be liable for the torts of the husband, stating that "the community is not liable for the torts of the husband, unless the act constituting the wrong either (1) results or is intended to result in a benefit to the community or (2) is committed in the prosecution of the business of the community." Id. at 200. The two-pronged test in La Framboise was upheld by the Washington Supreme Court in Clayton v. Wilson, 168 Wn.2d 57, 227 P.3d 278 (2010), when it found a marital community liable for the husband's sexual abuse of a child that was committed while the child performed yard work for the husband and wife. However, it should be noted that even if a tortfeasor commits a tort hoping that some benefit to the community will result, "community liability cannot attach under the theory of community benefit when, from the perspective of a reasonable person, the wrongful acts in question are unlikely to produce the desired community result." Farman v. Farman, 25 Wn. App. 896, 902, 611 P.2d 1314 (1980) (citing Edmonds v. Ashe, 13 Wn. App. 690, 537 P.2d 812 (1975)). In Farman, the court found that the wife's harassing calls to the plaintiff, even if intended for the benefit of the community, would have been unlikely to produce any such benefit, and as such the community benefit theory did not apply.

In 1980, the Washington Supreme Court overruled the doctrine immunizing community property from liability for the separate torts of one spouse. It held that the wrongdoing spouse's one-half of community personal property could be subjected to judgment collection procedures. deElche v. Jacobsen, 95 Wn.2d 237, 622 P.2d 835 (1980). Accordingly, courts need not strain to find "community benefit" for the plaintiff to recover. Community liability is more thoroughly discussed in Harry M. Cross, The Community Property Law in Washington (Revised 1985), 61 WASH. L. REV. 13, 132-43 (1986), and in WASHINGTON COMMUNITY PROPERTY DESKBOOK § 6.3 (Wash. St. Bar Assoc. 4th ed. 2014). DeElche was later extended to include real property. See Keene, 131 Wn.2d 822.

Spouses may be held jointly and severally liable only if they are joint tortfeasors under RCW 26.16.190. Farman, 25 Wn. App. 896.

[b] Liability of Parents for Torts of Children

[i] Vicarious Liability

At common law parents were not liable for the torts of their children simply because of the relationship. However, a parent may be held liable for the tort of a child based on ordinary principles of vicarious liability, such as ratification or agency. Birch v. Abercrombie, 74 Wn. 486, 133 P. 1020, modified, 135 P. 821 (1913); see also Davis v. Browne, 20 Wn.2d 219, 147 P.2d 263 (1944).

[ii] The Family Car Doctrine

The most frequently applied theory of a child's "agency" is the family car doctrine. A child's parents are liable for the child's negligent operation of an automobile that the parents own, provide, or maintain for the general use, pleasure, and convenience of the family. Coffman v. McFadden, 68 Wn.2d 954, 416 P.2d 99 (1966).

Registration of the vehicle in the name of the parent establishes a rebuttable presumption of ownership. Id. at 958. Other factors to consider in determining ownership of the car include: (1) who paid for the car; (2) who had the right to control the use of the car; (3) the intent of the parties who bought and sold the car; (4) the intent of the parents and the child relative to ownership; (5) to whom the seller made delivery of the car; and (6) who exercised property rights to the car.

In Kaynor v. Farline, 117 Wn. App. 575, 72 P.3d 262 (2003), in which these factors were thoroughly discussed, there was a complex fact pattern in which the parents of a 17-year-old were divorced, the child spent substantial time with each parent, and each contributed in various ways to the purchase and/or maintenance of their son's car. The court found that each parent's situation created issues of fact overturning the trial court's grant of summary judgment.

If the parents purchased the car for their child, but the child repays them and the car is not used for general family purposes, there is no community liability. Hulse v. Driver, 11 Wn. App. 509, 524 P.2d 255, review denied, 84 Wn.2d 1011 (1974). When a child's use of the automobile is unauthorized, liability will not apply. Beaughan v. Losvar, 19 Wn. App. 593, 576 P.2d 451 (1978). In addition, when parents have already separated and the wife received the automobile in the separation agreement, there is no community liability. Mackenzie, 58 Wn.2d 101.

The fact that the car is primarily or exclusively driven by the teenager does not destroy the "family purpose." Kaynor, 117 Wn. App. at 589-90. General use, pleasure, and convenience of the family are questions of fact "that may change from family to family depending on the needs of the family and the authorization granted by the parent or parents." Id. at 588; see also Pflugmacher v. Thomas, 34 Wn.2d 687, 209 P.2d 443 (1949); Cameron v. Downs, 32 Wn. App. 875, 650 P.2d 260 (1982).

Practice Tip: The detailed factual analysis discussed in Kaynor to determine the vicarious liability of a parent for the tort of a child provides a checklist of facts regarding ownership, maintenance, use, and family benefits, questions to ascertain in discovery.

[iii] Negligent Supervision

A parent can be independently liable for the conduct of a child when the parent was negligent in monitoring or supervising the child. In Norton v. Payne, 154 Wash. 241, 281 P. 991 (1929), the court held the parents liable when the evidence showed that they knew of their daughter's habit of striking other children with sticks. The Washington Supreme Court reconsidered application of the negligent supervision doctrine in Jenkins v. Snohomish County Public Utility District, 105 Wn.2d 99, 713 P.2d 79 (1986). Negligent supervision was raised by the defendant in Jenkins as a defense against a claim brought on behalf of an injured child. The parents claimed that parental immunity barred the defense. The court held that parental immunity precluded the parents' contributory negligence from serving as a defense, unless their failure to supervise rose to the level of willful or wanton misconduct. Accord Baughn v. Honda Motor Co., 105 Wn.2d 118, 712 P.2d 293 (1986); Talarico v. Foremost Ins. Co., 105 Wn.2d 114, 712 P.2d 294 (1986).

To bring a successful claim for negligent supervision, the victim of a child's conduct must established that "(1) the child has a dangerous proclivity; (2) the parents know [or should have known] of the child's dangerous proclivity; and (3) they fail to exercise reasonable care in controlling that proclivity." Sun Mtn. Prods., Inc. v. Pierre, 84 Wn. App. 608, 614-16, 929 P.2d 494, review denied, 132 Wn.2d 1003 (1997). In adopting this objective standard (a modified form of the Restatement standard for negligent supervision), the Sun Mountain court hoped to lessen the burden placed on plaintiffs in such cases. See id. at 615-16; RESTATEMENT (SECOND) OF TORTS § 316 (1965) (parent is liable for torts of his or her child when the parent "(a) knows or has reason to know that he [or she] has the ability to control [the] child, and (b) knows or should know of the necessity and opportunity for exercising such control."). See also Eldredge v. Kamp Kachess Youth Servs., Inc., 90 Wn.2d 402, 583 P.2d 626 (1978) (juvenile offender group care facility, acting in loco parentis, should have foreseen that juveniles would steal cars again without increased supervision); Schwartz v. Elerding, 166 Wn. App. 608, 270 P.3d 630 (2012); Barrett v. Pacheco, 62 Wn. App. 717, 815 P.2d 834 (1991) (facts known by parents could not have reasonably led them to believe their son would commit violent act).

The...