Discussions of parental liability by courts and legal scholars are often tinged with fear: fear that government interference will chill parental autonomy; fear that parents will be held liable for their children’s every misdeed; and, recently, fear that a new generation of so-called “helicopter parents” who hover over their children’s every move will establish unrealistically high legal standards for parenting. However, in the context of common law suits against parents, these fears are misguided. To the contrary, courts have consistently shielded wealthier parents — those most likely to be defendants in civil suits — from exposure to liability for conduct related to their parenting practices.
This Article critically examines the common law of parental (non-) liability, both historically and in light of current cultural trends. Parental liability takes two forms: liability for parents’ harm to their children, and liability of parents for harms caused to others by their children. Individually these subjects have received remarkably little scholarly attention; together they have received none. Yet both types of parental liability are central to ongoing cultural debates about parenting, as well as to current controversies about the role of courts in establishing legal duty. A thorough re-consideration of parental liability is particularly timely in light of the new Restatement (Third) of Torts, which speaks directly to issues that are central to both forms of parental liability.
This Article concludes that courts should hold parents to a standard of reasonable care. The American common law’s squeamishness about parental liability is understandable, but unnecessary. Just as helicopter parents overreact to unsubstantiated fears of stranger abduction based on anecdotes and media hype, limits on common law parental liability are overreactions to unsubstantiated fears of collusion, government interference and biased juries. To be sure, aspects of parental liability raise significant concerns, but courts can and should address them narrowly using established tort law principles, without imposing blanket no-duty rules. Juries, in short, should be allowed to judge parents.
Porter, Elizabeth G., Tort Liability in the Age of the Helicopter Parent (February 1, 2012). Alabama Law Review, Forthcoming; University of Washington School of Law Research Paper No. 2012-16.