The Civil Liability of Soldiers for the Acts of Their Minor Children

• Author: Captain L. Sue Hap
• Pages: 03

1. INTRODUCTION A. PURPOSE AND SCOPE OF ANALYSIS

   You have been asked to provide legal advice to a soldier who enters your office and informs you as fallows:

   I had been in the field for two weeks. I arrived home to my government quarters, dropped my TA.50 and muddy boots in the corner, and prepared for the traditional onslaught. My emotionally exhausted spouse began: "While you were away, our youngest child wrote her name with indelible ink on the school's bathroom wall; the twelve-year-old found your revolver and shot up the living room, including the government furniture and B

   playmate: and our teenager wm so frightened by this commotion that she sped away from the house in the family car, skidded around the corner next to the headquarters building. and collided with an oncoming car, damaging the other car and injuring its occupants."

   As my mind whirled, I paused long enough to wonder if the children had been injured, if they would be injured when I got my hands on them, and whether 1 am liable for these various incidents of damage, destruction, and personal injury. My concern regarding my liabMty brings me to you for advice.

   You know that your new client's children haven't a penny, so

   they are likely to be unsatisfactory defendants. Obviously, the wageearning soldier is the next best target for the plaintiff who is seeking relief in damages. Is the soldier parent pecuniarily liable for the damage caused by the soldier's children?

   This article develops an analytical framework that a practitioner can use to determine parents' civil liability for their dependents' misconduct. It is not feasible to include every case that has considered this issue or to discuss every statute whch may impose Lability on the soldier parent. This article wiil, rather, examine the bases of parental civil liability for the acts of minor children by identifying caaes and state statutes representative of common and statutory law and by addressing federal law and military regulations which bear on this issue.'

   2. TOPICS NOT COVERED

      This article will address only the civil liability of soldiers within the continental United States. It will not consider the soldier's criminal liability or liability of any sort overseas. This discussion also excludes Consideration of acts done by chldren at the direction of, with the consent or ratification of, or as agents far their parents. The article will discuss only those acts of which the parent is unaware at the time the act is committed. The article makes this distinction because it presumes that soldiers do not intend that their children cause injury or damage, but it acknowledges that children engage in activitiea that parents do not, and often cannot, anticipate.

      11. METHOD OF ANALYSIS A. OFF-POST INCIDENTS

      To discern a parent's liability for the acts of a minor child. onemust first determine what law applies to the given incident. The simplest situation exists when the child's misconduct occurs in territory that is exclusively under state control (as apposed to an area subject to federal legislative jurisdiction) and the parents reside in this state.cantroUed territory.

      ,To lachate the pr~~uu~ner'sus$ of rhri discurnon, the cases contuned m

      faotnorer we arranged alphabetically by itale and complete citations are rncluded m each esde reference. Parenthetical case expiansfionJ are included ~nlgwhen the

      point made m rhe ease IS not entirely mnmswnt with thr related text or *hen the case is of unusual significance 8s precedmr

      19871 SOLDIERS' LIABILITY

      This situation would occur, for example, where the family lives off post and the incident occurs off post in the same state as that in which the parents reside. In such a cam, the applicable law obviously would be that of the state involved. Where the state of parental residence and the State in which the incident occurs are different. the practitioner must apply choice of law principles to determine which state law will apply.

   2. ON-POST INCIDENTS

      More complicated questions arise when the incident occur8 on an installation. If state law remains operative on the installation and the parents live either an the installation or off post in the state in which the installation is located, the law of the state in which the installation is located will govern. If the installation is subject to exclusive federal jurisdiction, however, the practitioner must identify the specific nature of the plaintiff's cause of action in order to determine the applicable law.

      By federal statute, current wrongful death and personal injury state laws apply as federal law on territories subject to exclusive federal jurisdictim2 Consequently, if the issue involves death or personal injury, the current state law will apply on the federal reservation.

      Because this statute applies only to death and personal inj~ry,~ however, the law governing property damage an areas of exclusive federal jurisdiction, in the absence of federal law in the given substantive legal area. is the state law extant at the time federal jurisdiction is obtained. When the State cedes jurisdiction to the

      '16 U.S.C I 451 119821 itstes

      In the case of che death of mv 0er8an by the nadect or wandul actof anothsr wlthn B mtmd park or'olher piam subject-to the exdvsm jurisdicwan of the United S r a t ~ ~ withy1 rhe erteiior boundaries of any Stale. such right of action shall eusL 8s though theplace were under the jurisdiction of the State within whose exterior boundaries such place may he, and y1 any action brought Lo recoveron ac~mnlof miuries avitluned in anv such Diacs the rmht of the parties shall be &verned by the iaws 8 the State within the exhrmr boundsrier of whch if may be'See, sg , Vaivla V. Grummm Cow, 644 F.2d 11% 12d Cr 19811 lapplpg 15US.C. 9 457 119761, the court found that the 18ws apphcabie on a federal res~rvuswon m wrongful death and perrand mlury actions are those of the stale inwhich the reielvarion is located1

      federal government. this state law remains effective and becomes federal law.'

      To determine the applicable substantive law on a federal enclave. one must first identify the legal question involved. Where the laws of more than one jurisdiction are involved fas, for example, where a child steals a car off post and then drives onto a federal enclave and damages propertyl, the practitioner must determine the applicable law under choice of law principles.

      111. CHOICE OF LAWS

      Within recent history, the bases for determining the applicable law have included the law of the place where the tort was committed,j the law of the place of the wrong,@ the law of the state which has the most "significant relationship'' to or the most "significant interest" in the occurrence and the parties,? and other standards. Because the parental liability that this article dis. cusses is sometimes based on the child's misconduct, rather than on the parent's negligence in supervming or controlling the child. the practitioner should note that jurisdictions that apply the "significant relationship" standard of liability to the tortfeasor will likely also apply this standard to determine vicarious liability.8

      Given the substantial turmoil wirh respect to choice of law principles applicable to torts.0 the practitioner will be best able to resolve this issue by identifying relevant case law from the

      'See gmrrull) Allierl. Fsdeml Enchias, The Impact of Ezrlumur Lepirhtwe Jvnsdiciion Upon Cir.il Linganon. 72 MA L Rei 55. 86.90 119761 Dep L of Arm). Pamphlet Yo. 21-21, Legal Services-Military Admlnistraiive Law para 2.12 11 O m 19851. see dm Arlington Hafei Y Fant. 218 US. 439 119291: Chicago, Rock Island & Pacific Ry. v McCBnn. 114 U S 542 118851. Stokes v h d m 266 F 2d 662 l4ch Cs 19591

      'See 2 Beale. Cases an the Confict of Laws 5 318 1 1190216S#e Restatement of Conflict of Laws 5 311 119341The followmg itsie~ have adopted confliels d e s which focus either on the stace's significant relsfionship LO the oceuiren~e and perties 01 npon che smte'r mgnifrcanr mtewst ~n the meidem Alabama. Arnona Cahforma District aiColumbia. ILLinoia. Indmna, iowa. Louisiana. Massachusetra Maine. Slmnesora..Uiisisrippi, M~sioun, Xsw Hampshre, Kew Jersey, Yaw Yark. Oho, Oregon. Pennsyivanis Rhode Island. and U'iscanam See A Ehmerweig, Conficln in a YufaheU 217.18 15d ed. 19141. see also Rssrafement iseeondl of Canmct of Laws 5 145 119111

      'Sea Restatement [Second) of Confiet of Lars 4 174 119711'A current hornbwk lnlraduces it8 discussion of these pnnelple3 ab follows.

      If IS m the mea of cham of law for loris that current ferment I" canficl of laws thmking is most visible In this chapter there la 6rrt foeua on the trsLtmnal fernrand rule. then B mew of translimal cases reflecting masatisfaction with the established _le and fmdy. B

      19871 SOLDIERS LIABILITY

      applicable jurisdictions regarding the incident under consider. ationlo or by employing some basic principles of conflicts applicable to tort law.11

      To determine parental liability for acts of juvenile misconduct such as vandalism, misuse of a gun, and reckless driving, the practitioner must consider several bases of liability, including those recognized at common law and chose created by statute. In analyzing parental liability under mast circumstances, the most logical and thorough approach would be first to consider whether the parents are liable for the acts of their children pursuant to a general statutory scheme. then to examine any statutory schemes that impose parental liability under particular circumstances or for specific offenses, and finally to determine whether general liability is imposed at common law. Because offenses involving automobiles include a complex mixture of common and statutory law, they will be considered last.

      It? EMANCIPA TION

      When confronted with possible parental liabihty for the miscon.duct of a minor, the practitioner who has identified the applicable law must next determine whether the tortfeasar is. indeed, a "child' under the applicable...