R.C. 3109.10: Strict Parental Liability for a Child's Assault
A school-yard fight. A neighborhood bully. An opposing player who loses his cool. There can be a number of scenarios where your child can become the victim of a willful and malicious assault. Hopefully the most serious injury will be a bruised ego. However, if your child suffered serious injury, which required medical attention, you do have an avenue to recover damages.
In Ohio, R.C. 3109.10 imposes strict liability on the parents of a child who willfully and maliciously assaults another. Strict liability imposes liability on an individual without the need to prove negligence or some other type of wrongful conduct. Specifically, R.C. 3109.10 provides, in relevant part:
Any person is entitled to maintain an action to recover compensatory damages . . . in an amount not to exceed ten thousand dollars and costs of suit . . . from the parent of a child under the age of eighteen if the child willfully and maliciously assaults the person by a means or force likely to produce great bodily harm.
Under this section, “parent” is defined as (1) both parents if married; (2) the residential parent and legal custodian if there is a custody order; or (3) the custodial parent in the absence of a custody order. In other words, the Revised Code imposes strict liability on the parent or parents who have custody and control over the minor child; typically this is the parent or parents for whom the child resided with at the time of the assault.
Next, you'll have to show that the child used forced likely to cause “great bodily harm.” Interestingly, “great bodily harm" is not defined in the Revised Code, however, some Ohio courts have equated it to “serious physical harm” which includes, but is not limited to, the type of harm that may cause a broken bone, loss of consciousness, scarring, hospitalization, or even death.
Further, in order to successfully bring a lawsuit under R.C. 3109.10, there is NO requirement that the child even be charged with a criminal offense or found delinquent in juvenile court as a prerequisite to strict parental liability.
While R.C. 3109.10 provided means to recover damages against parents who did not directly cause the harm, it also limits the amount of damages to $10,000.00 (plus court costs.) For someone whose injuries required any type of hospitalization or surgery, the $10,000.00 cap on damages may very result in inadequate compensation.
Accordingly, alleging a claim of negligent supervision against the parents may be necessary. In this case, plaintiff is claiming the parents are liable for their own negligence. Specifically, a plaintiff must show that : (1) the parents knew of their child’s particular reckless or negligent tendencies (2) they knew they needed to exercise control over him, (3) the parents had the ability to exercise control, and (4) the parents failed to exercise that control. Ohio courts have found that parents of minor children can be sued for negligent supervision because they have a duty to exercise reasonable control over their children in order to prevent harm to third persons, when the parents have the ability to control the child and they know, or should know, that injury to another is a probable consequence. This is significant as it may very well allow your claim to exceed the $10,000.00 cap established by R.C. 3109.10.
If your child has sustained an injury as a result of malicious attack by a neighborhood or schoolyard bully, please contact Scott for a no cost, no obligation consultation and case evaluation.