April 21, 1978
Mr. Wayne Lunder, Program Administrator
Office of Resource Development
Department of Social Services
New State Office Building
Pierre, South Dakota 57501
Official Opinion No. 78-17
Liability of foster parents
Dear Mr. Lunder:
You have asked the following question:
What is the responsibility of foster parents where suits are introduced as a result of property damage or personal injury to persons other than the foster parent, or injury or death of the foster child while in foster care?
Your inquiry is actually two questions:
QUESTIONS:
(1) What is a foster parent's liability for injuries caused by the foster child? and
(2) What is a foster parent's liability for harm caused to the foster child?
Before answering your question, the nature of the foster parent/foster child relationship must be explored. The relationship is wholly a creation of the State. It is intended as a temporary solution until the child is either returned to his natural parents or is adopted. Smith v. Organization of Foster Families, 53 L.Ed.2d 14 (1977). The foster family is not given the same recognition in the law as the natural family. For example, foster parents did not have the right to intervene in litigation involving the disposition of foster children placed in their home. St. Louis Welfare Department v. Niemi, 284 Minn. 225, 169 N.W.2d 758 (1969). Nor were foster parents allowed to have two foster children returned to them from an adoptive home in the case of Allen v. State Department of Health and Social Services, Wis., 260 N.W.2d 246 (1977). The best interests of the children are paramount to the rights of foster parents. Foster parents are not the guardians of their foster children, and the relation is more in the nature of custodian. As custodian of the foster child, the foster parent makes the minor decisions necessary for the child's day-to-day living.
Often the State is the child's guardian, and in that capacity it makes the major decisions concerning the child's welfare. Besides placing the child in the foster home, it grants permission for medical care and consents to the child's adoption. It even makes some minor decisions such as whether the foster family may change the place where the child sleeps. As guardian of the child, the State has certain duties toward the child, but the guardian is not liable for any actions of its ward.
IN RE QUESTION NO. 1:
Under the common law, a child was responsible for his own actions. The child had his own legal identity and no one, including the parent was held vicariously liable in damages for the consequences of the torts or civil wrongs of a minor child. Present South Dakota law generally comports with the traditional common law. SDCL 26-1-4 continues a child's responsibility for his own actions.
A minor is civilly liable for a wrong done by him, in like manner as any other person, but cannot be subjected to exemplary damages unless at the time of the act he was capable of knowing that it was unlawful.
SDCL 25-5-14 states, “Except as provided in § 25-5-15, neither parent nor child is answerable as such, for the act of the other.”
However, SDCL 25-5-15 departs from the old rule, and does impose a limited liability upon the parent.
Any person, firm, association, private or public corporation, including the state of South Dakota and its political subdivisions, suffering damages to real, personal or mixed property, through the malicious and willful act or acts of a minor child or children under the age of eighteen years while residing with their parents, shall have therefor a cause of action against and recover of the parents of such child or children. In each case the amount of recovery against one or both of the parents shall be limited to actual damages of three hundred dollars and the taxable court costs, and shall not apply to damages proximately caused through the operation of a motor vehicle by said minor child or children.
Under this statute, the parent's liability is limited to those situations where the child acted willfully or maliciously. “Willfully or maliciously denotes the intentional doing of a harmful act without just cause or excuse, or doing of an intentional act in utter disregard for the consequences.” Potomac Insurance Company v. Torres, 401 P.2d 308 (N.M. 1965). But before parental liability arises, the child must be capable of committing the willful act, and the children of tender years are not presumed capable or such acts. This section does not make a parent liable for any damages caused by a negligent minor child, nor does it absolve a child of his responsibility. And the parent's financial liability is only $300 for actual damages.
The question then arises whether SDCL 25-5-15 applies to foster parents.
The answer is no.
A statute in derogation of the common law should not be extended further than its language fairly warrants. All doubts should be resolved in favor of the general law, rather than the exception. Lamro Independent Consolidated School District v. Cawthorne, 76 S.D. 106, 73 N.W.2d 337 (1955). Further, SDCL 25-5-15 refers to “parents.” BLACK'S LAW DICTIONARY, 1269 (Rev. 4th ed. 1968), defines a “parent” as, “The lawful father or the mother of a person . . . . One who procreates; begets, or brings forth offspring.” (Cites omitted.) The term parent, then, refers to the biological parent, not to foster parents. Foster parents, then, are not included in SDCL 25-5-15 and are not subject to the $300 liability.
That SDCL 25-5-15 does not extend to foster parents does not mean that foster parents cannot be found liable for their foster child's action. Under the common law, three separate theories have been used to find parents liable for their minor children's actions. All are based upon culpable conduct of the parent and all apply equally well to foster parents.
Since parents have a special power of control over the conduct of their child, they have a duty to reasonably exercise that control to protect others. Parents may then be liable for failing to make reasonable efforts to control their child when the child manifests a tendency to do some harmful act. Parents may also be held responsible for negligence entrusting a dangerous instrument to their child or leaving it where the child, who has a propensity to misuse it, will have access to it. The parent's liability then is based upon their own negligence.
The case of Johnson v. Glidden, 11 S.D. 237, 76 N.W. 933 (1898), is an example of parental liability. The defendant's son was in the habit of using his gun in a dangerous manner. Although his father knew this, he did nothing to stop his son. One day the boy discharged the gun near the plaintiff who was watering her colt, causing the animal to bolt. The woman, who was entangled in the ropes, was dragged across the prairie and was severely injured. The court found the father liable for the woman's injuries, “If he knew his child was using the gun recklessly, as an ordinary intelligent person he must apprehend the natural consequences of such recklessness; and as a good citizen, he should have made a reasonable effort to prevent such consequences.” 76 N.W.2d 933, 934. The parent's liability then, is based upon his failure to control the child and applies to others in a parental role.
The parent may also be liable if his child is acting as his agent. The parent is held responsible only if the child was acting within the scope of the parent's agency or if the act was authorized by the parent, but the agency may arise when the parent or foster parent hires the child or foster child to perform a task. The general rules of agency apply to make a parent liable for the tortious acts of his child.
The case of Ackerman v. Robertson, 240 Wis. 421, 3 N.W.2d 723 (1942), is an example of parental liability based upon the child's agency relation. The defendant, Dr. Robertson, was a veterinarian, who often had his son assist him. The plaintiff, a hog farmer, called the doctor's office to order mange oil. The doctor's son delivered Lysol instead of mange oil, and the farmer sprayed his hogs with Lysol which caused the death of all ninty-one. The court held the doctor liable, because of the negligence of his agent, his son.
Finally, the parent may be held responsible for the tortious act of his child if he has directed, encouraged or ratified the child's conduct by accepting its benefits. He may also be liable where he approves or participates in the tort. Parental liability is that of a cotort-feasor.
The case of Carmourche v. Bouis, 6 La.Ann. 95 (1851), illustrates parental liability based upon a father's participation in that tort. The defendant was an overseer on a plantation. He hired his son to watch the sugar cane field, with the instructions that the son was to shoot a gun in the air to frighten off any trespassers. The plaintiff's slave, John, climbed over the fence into the field. The child shot the gun without aiming and wounded the slave in the leg, which eventually caused his death. The court found the father liable for the slave's death, because the father was imprudent in the instructions that he gave his son, and the son was merely following the father's instructions. A parent's liability, then, is based upon his own conduct and not merely upon the parent-child relationship. The theories for finding one person responsible for another's deeds are general rules of law which apply to everyone, including foster parents.
IN RE QUESTION NO. 2:
A fundamental philosophy of American law is that every individual must answer for causing harm to another person. SDCL 20-9-1. However, in the late 19th Century, the Family Tort Immunity Doctrine was first espoused. The rule is that an unemancipated minor child may not maintain an action against its parents for injuries caused to the child by the ordinary negligence of its parents, Barlow v. Iblings, 261 Iowa 713, 156 N.W.2d 105 (1968). The Mississippi Court explained the reason for the doctrine.
The peace of society, and of the families composing society, and a sound public policy, designed to subserve the repose of families and the best interests of society, forbid to the minor child a right to appear in court in the assertion of a claim to civil redress for personal injuries suffered at the hands of the parent. Hewellette v. George, 68 Miss. 703, 9 S. 885 (1891).
The parental immunity rule varies somewhat from state to state and the South Dakota courts have not had an occasion to speak on the subject. The majority of jurisdictions do follow some version of the rule and the modern cases limit its application to two situations. A parent is not liable to a child where the parent's ordinary negligent act involves discipline of the child, nor is a parent liable for the exercise of ordinary parental discretion with respect to the provision of the food, clothing, housing, medical and dental services and other care. Cherry v. Cherry, 295 Minn. 93, 203 N.W.2d 352 (1972). And the rule has also been applied to prevent a parent from suing the child, as the policy considerations are the same for both the parent and the child.
The parental immunity rule applies to ordinary negligence, not to willful and wanton conduct, nor to intentional torts. Further, it applies only to personal injuries as the Barlow case, supra, illustrates. Glen Iblings brought his six-year-old son to the cafe he operated. When left on his own, the curious child turned on the electric meat grinder and inserted his hand, and thereby lost all his fingers and part of his hand. The father was not held liable as he was only guilty of ordinary negligence toward his child.
A few states take the view that since the family immunity rule is to protect the family, the rule no longer applies when that relation ends by the death of either the parent or the child. Brennecke v. Kilpatrick, 336 S.W.2d 68 (Mo. 1960). However, most states do not agree. Even though one member of the family has died, surviving members are still entitled to peace and harmony and the protection of the family immunity rule. Campbell v. Gruttemeyer, 432 S.W.2d 894 (Tenn. 1968).
The next question then is whether the family immunity doctrine applies to those other than parents. The doctrine does include those who stand “in loco parentis” to the child. A foster parent can be protected by the immunity rule only if he indeed stands in loco parentis. “In loco parentis” means one who “stands in place of a parent.” BLACK'S LAW DICTIONARY, 896 (Rev. 4th ed. 1968).
A foster parent does not automatically stand in loco parentis. The key is whether the person has the intent to stand in the natural parent's place, and the intent is deduced from the facts of the particular case. The factual considerations may include the children's ages, their dependence upon the person, and whether such person in fact supports the children and exercises the duties and obligations of a natural parent. McManus v. Hinney, 31 Wis. 333, 143 N.W.2d 1 (1966). The in loco parentis relationship is not to be lightly inferred. The substitute parent assumes all the obligations incident to the parental relationship and actually discharges those obligations. To establish the in loco parentis relationship, there must be an affinity whereby the parent has a true interest in the well-being and general welfare of the child. Rutkowski v. Wasko, 286 App.Div. 327, 143 N.Y.Supp.2d 1 (1955).
In conclusion, a foster parent is not subject to the strict liability of SDCL 25-5-15, but a foster parent can be liable for the actions of the foster child, based on the foster parent's own conduct, in three situations; where the foster parent failed to control the child, where the child is the foster parent's agent, and where the foster parent participated in the tort.
A foster parent is also liable to the foster child for any injury or death of the foster child while in foster care. However, if the foster parent stands “in loco parentis” to the child, the foster parents may not be liable to the foster child for any ordinary negligent injury caused in the course of discipline. The foster parent may also not be liable to the foster child for injury caused in the course of an exercise of ordinary parental discretion with respect to the provision of food, clothing, housing, medical, dental or other care.
Respectfully submitted,
William J. Janklow
Attorney General
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