The Tort Duty of Parents to Protect Minor Children
![handle is hein.journals/vllalr51 and id is 323 raw text is: 2006]
Articles
THE TORT DUTY OF PARENTS TO PROTECT MINOR CHILDREN
VINCENT R. JOHNSON*
& CLAIRE G. HARGROVE**
TABLE OF CONTENTS
I. THE UNCERTAIN VOICE OF AMERICAN TORT LAW ............ 311
II. THE SPECIAL RELATIONSHIP BETWEEN A PARENT AND MINOR
CHILDREN .................................................. 320
III. PUBLIC POLICY ............................................ 322
A. M oral Blameworthiness ................................. 324
B. Preventing Future Harm ................................ 325
C. Burden on the Defendant ............................... 326
D. Consequences to the Community .......................... 327
E. Availability of Insurance ................................ 328
IV. IMPACT ON CLAIMS AGAINST THIRD PARTIES ................... 330
V. THE SIGNIFICANCE OF CUSTODY ............................ 332
VI. CONCLUSION: A PRECISELY TAILORED SPECIAL RELATIONSHIP . 334
I. THE UNCERTAIN VOICE OF AMERICAN TORT LAWA
M UST a parent rescue a minor child from a risk of physical harm not
created by the parent?1 It is easy to think of facts that raise this
*Visiting Professor of Law, University of Notre Dame. Professor of Law, St.
Mary's University School of Law, San Antonio, Texas. B.A. and LL.D., St. Vincent
College (Pa.); J.D., University of Notre Dame; LL.M., Yale University. Professor
Johnson is a member of the American Law Institute and its Members Consultative
Group on the Restatement (Third) of Torts. Preparation of this Article was assisted by
two law students at St. Mary's University, Brenna Nava and Graham D. Baker.
** Briefing attorney to the Honorable Michael E. Keasler, Texas Court of
Criminal Appeals, 2005-06. B.A., University of Texas at San Antonio; M.A., Our
Lady of the Lake University; J.D., St. Mary's University School of Law.
1. This Article is concerned with failure to act, rather than with improper
action, which is to say, with nonfeasance rather than misfeasance. Whether a par-
ent whose careless action causes injury to a minor child will be subject to liability
will depend upon ordinary negligence principles and whether there is some immu-
nity, defense or privilege that prevents legal responsibility. The question here is
different: namely, whether a parent whose conduct has not created a risk of harm
to a child has a duty to intervene to rescue a minor child from harm caused by
some other person or injurious set of events. Admittedly, it is often difficult to
distinguish nonfeasance from misfeasance, and cases often contain allegations of
both forms of misconduct. See Gen. Accident Ins. Co. of Am. v. Allen, 708 A.2d
828, 831 (Pa. Super. Ct. 1998) (alleging negligent acts or omissions on part of
children's stepmother where mother of children claimed father's wife owed a
duty to the minor children to protect them from harm) (emphasis added).
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The Tort Duty of Parents to Protect Minor Children
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