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When Children Kill: Parental Liability

Posted by Giovanna A. D'Orazio | Dec 07, 2021

Like many other parents of school age children, for us, a school shooting is a worst nightmare scenario.  Sadly, while these shootings don't feel particularly rare, it is rare that the parents of the shooter are charged – even though these killers often use a gun obtained in the home.  Recently, after a shooting at Oxford High School in Michigan, in which four students were murdered, many – ourselves included – were glad to see that the parents of the shooter were criminally charged.

Since civil, and not criminal, law is our wheelhouse, today we are talking about parents' civil liability for the acts or crimes of their children.

In 2020, the Third Department (the intermediate New York appellate court that covers our area), had occasion to discuss these issues in a case involving the shooting death of two teenagers.  The court laid out the appropriate analysis as follows:

“A parent may be liable for the torts [i.e., wrongful acts] of his or her child where the parent (1) fails to supervise a child with a known propensity toward vicious conduct or (2) entrusts a child with a dangerous instrument. Regarding a claim of negligent entrustment, a parent owes a duty to third parties to shield them from an infant child's improvident use of a dangerous instrument, at least, if not especially, when the parent is aware of and capable of controlling its use. Under a theory of negligent supervision, it must be established both that the child had a tendency to engage in vicious conduct which might endanger a third party and that the child's parents had knowledge of his or her propensities in this regard”.  Damphier v. Brasmeister, 185 A.D.3d 1249 (3d Dep't 2020) (internal quotation marks and citations omitted).

If you read about the Oxford High School shooting, each of these theories appears to apply.  Not only did the parents purchase the gun for their son and leave it unsecured, but the shooter also exhibited signs and threats of violence that were ignored.  Conversely, in the Damphier case above, the lawsuits were dismissed because there was no proof that the defendants knew the killers were violent or had made threats of violence in the past nor were the guns used in the shooting unsecured and, instead, had been stolen, one from a locked case.

While people often express skepticism about lawsuits – how can suing someone for money alleviate the impact of a tragedy? – plaintiff's lawyers come from the perspective that civil lawsuits serve an important purpose in society in making things safer.  Knowing that you can be sued can lead to more prudent actions and the evolution of societal norms as to what is safe and acceptable behavior.  Additionally, because the standard of proof is lower in civil suits as compared to criminal prosecutions, sometimes the civil justice system can step in when the criminal system does not (notable example: OJ Simpson). 

As parents, we are in favor of those enabling a school shooting facing the full consequences of the law, whether it is criminal or civil or a combination of both.  Perhaps, then, others will think again before they leave their guns unsecured or entrust a gun to a child who is, at best, immature and irresponsible, or, at worst, murderous and disturbed.

About the Author

Giovanna A. D'Orazio

Giovanna has experience litigating, among other things, commercial, general civil, employment, land use and personal injury matters in New York State and federal courts. Giovanna focuses her practice on plaintiff's employment and personal injury matters, with a particular interest in women's rights and employment discrimination and harassment.

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