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Southwestern Law School

Wednesday, October 31, 2012

Porter on Parental Liability in the Age of the Helicopter Parent

Elizabeth Porter (Washington) has posted to SSRN Tort Liability in the Age of the Helicopter Parent.  The abstract provides:

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

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.


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This is a candidate for the "Schools for Misrule" award. Parents in the know wouldn't be able to shake the feeling that they were being hunted by lawyers. Other parents, the kind that don't pay attention to much at all, are generally judgement proof anyway because they have no assets to seize.

Better to err on the side of caution and maintain limits on common law parental liability. Fears of collusion, government interference and biased juries are not always unsubstantiated.

Posted by: Canvasback | Nov 27, 2012 6:24:35 PM

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