Children in Tort Law


  The Project

2. Full Description of the Project

A reasonable way to face to problems that tort liability of children involves seems to take the role that the child is going to play in tort law as the starting point. Accordingly the child can play (a) the role of the tortfeasor and (b) the role of the victim. The problems that one and the other role involve are quite different.

2.1.  The Child as Tortfeasor

With regard to tort liability of children there are at least four crucial questions which must be examined in the different legal systems:

1)      Whether children are directly liable for the damage they cause and whether there is any age limit below which they have no tortious capacity and, therefore, they are exonerated from liability;

2)      If in spite of their lack of tortious capacity, for reasons of equity can children be held liable in exceptional conditions and which are or should be these conditions.

3)      What is the relationship between liability of children and liability of other persons, such as parents or guardians, who will be held responsible for them and how are their corresponding liabilities organised (whether it is a subsidiary or a direct liability, and in this last case, whether these persons are held jointly and severally liable with the child who has caused the damage).

4)      Finally, whether the general answers that the legal systems give to these questions are kept up in all areas of tort liability and in all situations or, on the contrary, follow different rules in areas that have special features (for instance, when specific dangerous or risky activities are carried out) or when damages are covered by a certain sort of insurance. A different step in the analysis will investigate whether technological changes and a shift to an expanding information society is, or is not, asking for changes of the legal paradigm too.

A) Minority and lack of tortious capacity

One of the first questions that arise is whether the trend of adopting child-friendly rules that can be observed in other areas of law applies also to tort law. In order to ascertain whether this trend exists several aspects must be taken into account.

a) Age limit versus individual maturity of the child

Speaking generally, it seems that one must admit that the general attitude towards children in the continental European legal systems is protective.  Bearing in mind the lack of capacity of children who cause damage, there is a general trend that in order to protect children tries to exempt them from liability. However, beyond this general trend there is no common accepted age limit below which this exemption occurs. Moreover, not all European legal systems include in their laws a fixed age limit and, when they do, this limit is not the same. Thus, for instance Portugal (Art. 488 II Código civil) fix this minimum age at 7 (although only to reverse the burden of proof of capacity). In Greece the limit is set at the age of 10 (Art. 916 Greek Civil code), whereas in The Netherlands (Art. 6:164 BW) it is established at the age of 14.

On an opposite position, the starting point of some European legal systems is the absolute or almost absolute tort liability of children. So in France, for instance, after a set of decisions issued in 1984, children are held liable in tort although they have no ability to reason. Their ability “to distinguish between good and evil” (discernement) is of no relevance, as their acts must not be measured up to the regular behaviour of other children of the same age but to the standard of a reasonable adult person. As long as the act committed can be considered negligent under this objective point of view they will be liable in tort.

Other legal systems adopt a middle way between both models. Instead of considering that there cannot be liability under a certain age or that there is absolute liability regardless of the age of the child they carry out a case-by-case analysis. What is relevant is whether the child was able to understand what damaging another person meant. This is the system followed in Italy where, on the grounds of Arts. 2043, 2046-2048 Codice, it is held necessary to decide the issue case by case according to ability d’intendere o di volere of the child. Something similar happens in Spain with regard to the liability system established by Arts 1902 et seq. Código civil, where liability of children depends on their tortious capacity. However, what happens regularly is that liability falls on their parents (cfr. Art. 1903 I Código Civil) and, according to legal writing, only secondarily on the child itself.[6] Under Austrian law[7], children under fourteen years of age are generally not responsible for tortious acts (§ 153 ABGB). But this limit is not as relevant as it looks at first sight: Persons under fourteen years of age are merely presumed not to be responsible and it is up to the claimant to prove that in the individual case the minor had enough judgement to be held responsible. Nevertheless, the minor’s liability is subsidiary to the liability of the parents (§ 1309 ABGB) and the minor is not always obliged to compensate for the entire loss (§ 1310 ABGB).

A different and intricate question arises in those legal systems, such as the Spanish or Italian one, where their Penal Code contain a different regulation and, in contrast to their Civil Code regulation,  establish a fixed age limit (for instance 14 years old according to Art. 97 of the Italian Penal Code). In these cases legal writing and courts have serious problems when trying solve the puzzle of fitting one regulation in the other.  In Spain the question is specifically complex and has given rise to an endless legal debate. Unfortunately , the recent Ley Orgánica de responsabilidad penal de los menores (Organic Act about Criminal Liability of Minors [LORPM])[8] has not solved the problem. Even after this Act tort law, unlike criminal law has no fixed age for capacity[9]. The tortious capacity of children depends on their maturity of judgement[10]. However, there is some agreement that a certain capacity must be presupposed in those minors who are close to the legal age, although no clear borderline is drawn and legal doctrine refers the solution of the problem to the circumstances of the case[11]. If the wrongful act amounts also to a crime or to a misdemeanour the Organic Act about Criminal Liability of Minors [LORPM]) provides that, according to this Act, minors are liable in tort for the damage caused —jointly and severally with their parents, guardians, keepers or custodians— but only if they are over 14 years old  (art. 61.3 in connection with art. 1.1 LORPM). If minors are under 14 the provisions of the Act do not apply, but this does not mean that minors are not liable in tort but only that their tort liability will be established then according to the general provisions.

The approach adopted in German law amounts to a mixture of all of the elements explained above. To begin with, § 828 para 1 BGB stipulates the age of 7 as the ultimate threshold below which a child is not liable for damages it caused, regardless of its mental capacities and capabilities. Currently, a new federal regulation exists at the parliamentary level pursuant to which the age limit would be raised from 7 to 10 years with respect to minors involved in motor accidents as well as accidents involving trains and cable railways (Zweites Gesetz zur Änderung schadensersatzrechtlicher Vorschriften (19 February 2001). However, it would be incorrect to conclude that a child older than seven is always held accountable for its tortious behaviour. Rather, between ages 7 and 18, during which the minor matures towards adulthood, the question of liability for damages resulting from tortious conduct is based upon the particular child’s capacity to understand the wrongfulness of its behaviour and to act accordingly. The German criminal law adopts the same two-tier-approach to minors but stipulates a different age as the threshold for criminal liability. Pursuant to Sec. 19 of the Penal Code (Strafgesetzbuch), the relevant age is 14, while offenders between 14 and 18 years of age are to be scrutinized on a case by case basis in order to establish responsibility for their criminal acts. These rules of criminal law are also relevant for tort law since Sec. 823 para 2 BGB establishes private liability on a person offending a criminal law aimed at protecting individual rights.

b) Ability of reason and required standard of care

aa) Ability of reason

A fundamental precondition of fault liability of children is in all systems the proof of the ability of reason of the child, i.e. of a sufficient capacità d’intendere o di volere, as it is understood by Arts. 2046 and 2047 Codice civile italiano. However this point raises the question of what must be understood under “ability of reason”. Whereas in some systems it would seem that the ability to reason refers only to the ability to act voluntarily in accordance with this intellectual understanding in others it seems to be more strict and require also the ability  to see his or her responsibility as a result of his dangerous conduct, i. e. that the child recognizes somehow that he has the duty of taking responsibility for his actions. The answer to this question is not petty, for in the second case the tendency is to confine liability of children to children who have already reached adolescence, as these will be the only ones who, due to their maturity of judgement, will be really aware of the results of their actions.

bb) Applicable standard of care

A different question arises in relation to the standard of care that children have to meet in order to escape liability. If their behaviour is measured up according to the general standard of the reasonable person that is required from an adult, i. e. that of the  bonus paterfamilias, it seems clear that the law places on them a burden that might be too heavy.  Other systems, as the English one, relate the standard of care that the defendant child has to meet to the behaviour of a child of a similar age and acting in similar circumstances. In this system a young child will probably escape liability for negligence unless he acted in a way other than that in which an “ordinary” child of the same age might be expected to act. Moreover, he will probably be incapable of forming the necessary state of mind for liability in torts involving negligence or malice. For this reason it will be necessary to ascertain whether to answer given by the English system is more acceptable and to what extent it would be the most convincing one in order to foster his protection.

B) Liability in equity

The researchers of this Project will have to consider whether the so called liability in equity is useful or not and to what extent. Liability in equity has a legal regulation in some European systems and, under certain circumstances, allows the victim to obtain some sort of compensation from the tortfeasor child in spite of his lack of tortious capacity and taking into account that otherwise the victim would go uncompensated (cfr. § 829 BGB, § 1310 ABGB, art. 2047 Codice).

The acceptance of liability in equity entails the necessity to analyse which are its conditions and which are the circumstances in which it should apply. Moreover, considering that it does not amount to full compensation of the damage sustained but only to a fair compensation in equity the study of the different elements that will have to be taken into account by courts when assessing its amount becomes compelling. So for instance the weight that must be given to the degree of causal contribution of the child, the magnitude of the damage sustained by the victim, the financial situation of both parties, the existing coverage of the damage sustained by other devices such as liability insurance covering the minor or indemnity insurance or social security insurance of the victim, the bearing of an eventual contributory negligence of the victim, etc.

C) Relationship between liability of children and liability of parents and other persons who supervise the child

When analysing the different legal systems it seems clear that under certain circumstances liability of children entails also liability of those persons who have the duty to supervise them. Among these persons there are not only the parents but also tutors, guardians, teaching institutions and other persons who take care of the child either on a permanent or on a temporary basis (so for instance, Art. 1903 Código civil).

Therefore it will be necessary in this Project to study the liability regimes of all these groups of persons who are bound up with these duties of supervision, as well as the relationships between their liability and an eventual liability of the child itself for the causation of the same damage. In practice the question is quite problematic, mainly if we bear in mind that what happens more often is that parents, tutors, guardians and other persons who have a duty of supervision  are finally held liable either because the child has no capacity or because, even being capable, he has no solvency to meet the obligation of compensating the victim. In these cases:

·         How is the relationship between the child and the supervising persons who have to compensate the damage?

·          How do the different legal systems deal with those cases where together with the liability of the parents, tutors or guardians the teaching institutions in charge of the child when the damage occurred could also be held liable?

·         What is the rule of liability in these cases: are all of them primarily liable and if so jointly or severally liable or not?

·         Are some of them only secondary liable?

·         Which is the best liability rule considering the need of protecting childhood?

·         Would this solution be compatible with the necessary protection of the victims?

·         Can parents and other supervisors recoup the compensation that they have paid from the child?

·         Are theses actions of recoupment carried out in practice?

·         With regard to recoupment, should there be any difference between parents and other supervisors (guardians, teaching institutions, etc)?

a) Liability of parents

In this area it will be necessary to analyse the liability regimes of the parents in the different legal systems and whether these systems operate according to the traditional fault liability for culpa in vigilando or in educando or whether they introduce  corrective measures to increase the number of situations in which parents will be held liable. So, for instance, by introducing a rebuttable presumption of fault liability, as German law does in § 823 II BGB, or by making the conditions of their liability (something which courts in some countries do) or by making their conditions of liability so harsh that they can hardly ever escape from liability, being thus in practice a sort of strict liability (as, for instance, in Spain).

It must also be found out whether liability of the parents is related or not to the tortious capacity of the child and which are the possible results of this connection (for instance, liability of parents only when children have capacity or, the other way round, only when the have no capacity).

A last question in this part will be to analyse how the different legal systems deal with the problem of ascertaining who is the person who will be held liable for the child when the parents are separated or divorced, or when children are temporarily together with other relatives such as grandparents or adult brothers or sisters. In a similar way it must be examined who will be liable for the damage caused for children during the time that they are not under the protection of any adult or institution.

b) Liability of tutors and guardians

Under this point the research team should analyse the answers that the different legal systems give to the cases of liability of tutors and guardians for the acts of their wards and give answer to the questions that it raises, such as:

·         Do all legal systems under consideration offer a similar answer?

·         Are these the same answers as in the case of liability of the parents for their children?

·         What are their conditions?

·         Is there any difference between the liability of tutors and guardians of children and tutors and guardians of insane persons?

·         Are the answers the same when the tutor or guardian is a legal entity (the so called “institutional tutorship”)?

In this last case it is also important to ascertain whether the liability regime of tutors and guardians is different when the person in charge of the child is a public institution as, for instance, occurs in Spain, where liability of public institutions acting as tutors is governed by the general rules of public authorities set forth in Arts. 139 et seq. of the Ley 30/1992, de Régimen Jurídico de las Administraciones Públicas y Procedimiento Administrativo Común (LRJAP), which establishes a strict liability regime. Similarly, in Austria state liability for the wrongs of public servants is governed by a specific statute, the Official Liability Act (Amtshaftungsgesetz); but liability is based on the misconduct of the public servants.

c)  Liability of teaching institutions for the damage caused by their pupils

As in the previous case this Project will analyse which is the liability regime of teaching institutions for the damage caused by their underage pupils. In this area it is of relevance to establish the scope of this liability:

·         Whether teaching staff is personally liable or not and if so, according to which liability regime (strict liability, fault liability for culpa in vigilando [with/without reversal of the burden of proof]).

·         Whether the teaching institution is primarily or subsidiary liable and, in the first case, whether it can recoup from the teacher who caused the damage and under which conditions (for instance, in Spain, according to Art. 1904.2 Código civil, recoupment is only possible if the teacher acted with intent or gross negligence).

With regard to the scope of liability it is important to specify the extent of the liability of the teaching institutions:

·         Are they liable only for damage caused in the course of activities carried out in the school or also for other activities carried out outside the school premises?

·         Are they liable for the damage caused by children while being transported from their homes to the school?

·         Is it possible that parents and teaching institutions are held jointly and severally liable for fault (culpa in vigilando or in educando)?

Finally it must also be analysed whether the liability regime is the same for private teaching institutions as for public ones or, as it happens in Spain and Germany, whether it differs to a significant degree. So, for instance, in Spain when the teaching institutions depend on public authorities their liability for damage caused by children is strict and governed by Arts. 139 et seq. of the Ley 30/1992, de Régimen Jurídico de las Administraciones Públicas y Procedimiento Administrativo Común (LRJAP), as amended by Ley 4/1999, of 13th. of January. In Germany, the liability of private schools is governed by the general provision of § 832 para 2 BGB, conferring liability upon any entity which has contractually assumed responsibility for the supervision of the child. In contrast, public schools and universities are subject to the provisions governing the tortious liability of the state and other public entities, i.e. § 839 BGB, Art. 34 Grundgesetz. As of yet, this asymmetry has not been the focus of research, and thus it remains to be explored whether the differences in approach also yield different results.

d) Liability for damages caused using electronic means

It is clear that all the above lines of investigation should be tested also with regards to technological developments and education of minors. Indeed, the expanding role of computer usage also in teaching, education and entertaining open room to different ways of causing damages. Once again, children are the target of the most possible damage both as material source or as victims of it.

2.2. The child as a victim

When the child is considered from the point of view of a victim who has suffered a damage the question that arises is how his capacity will affect his relationship with the tortfeasor. In this area one of the main issues will arise when the conduct of the child has also contributed to the damaging result, i.e. when there is contributory negligence of the child as a victim. The bearing of his ability of reason on his or her contributory negligence will increase the hurdles that the exam of contributory negligence already presents.

A) The contributory negligence rule and the plurality of standards

Firstly it should be tested whether it is possible to establish a general rule in this area and if so, whether it should stand for relevance or for irrelevance of contributory negligence of the child.  However it is very likely that the existence of a general rule does not entail an absolute rule and thus that it allows exceptions. Rule and exceptions should be analysed in detail, bearing in mind that whereas in some legal systems the regulation is set forth by legislation in others the rules have been developed by the courts. Even in the first case, i. e. when statutory rules are available, it will be necessary to check to what extent the courts have developed these rules and whether this development is fully in accordance with the primary statutory provisions.

In those legal systems that admit the relevance of the contributory negligence of an underage victim it will be necessary to verify which is the standard of care that applies in these cases. Or in other words, whether it will be sufficient to assess that the child has acted in a manner that can be qualified as “objectively negligent”, regardless of his actual ability of reason or whether his ability of reason becomes a condition of liability of paramount importance. In the first case, as it occurs under current French Law, the rule will be that it is irrelevant whether the minor was subjectively capable of discerning the consequences of his actions and his standard of care will be defined objectively, i.e. with regard to that of an ordinary adult reasonable person, in order to assess his conduct.  In the second case it will be necessary to check whether the devices that the legal systems use when dealing with tortious liability of children are also suitable for the problems arisen when the child is the victim.

a)  Identification of children with the fault of their parents and guardians

Contributory negligence of the underage victim presents still the question whether the defendant who caused a damage to a child can use the lack of care of his parents or guardians in his supervision as a defence in order to obtain a reduction of the compensation that he will have to pay.

In all likelihood the identification of children with the fault of their parents or guardians it is not under discussion when parents and guardians are plaintiffs who act solely for themselves (iure proprio). However in many cases parents will not act only for themselves but also as legal representatives of the child who has suffered the harm and in this case identification seems more problematic and merits closer examination. If the rule adopted stands for identification it will be necessary to establish the conditions under which it will occur. Will it be a general rule or will identification be confined to certain situations as for instance when there was a previous contractual relationship  between the underage victim and the tortfeasor as in Austria (§ 1313a ABGB)? If fault of the persons who have a duty of supervision reduces compensation, will then the child be able to claim this part of damages from his parents or guardians on the grounds of their infringement of their duty of supervision?

b) Contributory negligence of children and strict liability

Finally the team working on this Project should consider whether it would be necessary to establish specific rules for contributory negligence of children in the framework of strict liability regimes. The basic issue at stake here is to discern whether the fact that the tortfeasor is strictly liable has no relevance with regard to contributory negligence of the underage victim and, accordingly, it does not prevent the application of the general rules on the subject or, on the contrary, whether it calls for specific rules  that exclude contributory negligence. In this last case it must be examined whether contributory negligence of children should be governed by general specific rules in all cases of strict liability or whether these specific provisions should refer only to accidents that stem from certain sources of danger. Special attention will be paid in this point to regulation of road-traffic liability.

Under the present German law, contributory negligence of children is a defence even if the tortfeasor is strictly liable, as it is  with respect to cases involving motor accidents. However, the proposed legislation of the Zweite Schadensrechtsänderungs-gesetz is meant to mitigate the detrimental effects this approach carries for the victim child. This result is to be achieved in a rather indirect way:  Since the standard of capacity is the same, both for the issue of liability and for the issue of contributory negligence, children below the age of 10 will no longer be held accountable for their negligent behaviour contributing to the accident. The driver subject to the strict liability standard maintains a defence against the victim only if the child acted with intent.

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[6]     Instead of many see Clara I. Asúa González, in L. Puig i Ferriol  et alt., Manual de Derecho Civil II, 3ª, Madrid, Marcial Pons, 2000, p. 476.

[7]     Cf. the Austrian report in Spier, The Limits of Expanding Liability, The Hague 1998, 79 sq.

[8]     Ley Orgánica 5/2000, de 12 de enero, reguladora de la responsabilidad penal de los menores (BOE num. 11, 12.01.2000).

[9]     In contrast to, for instance, § 828.1 BGB. In the Spanish legal doctrine S. Díaz Alabart, Comentario a la sentencia de 15 de diciembre de 1994, [1994] 38 CCJC 639, ventures to talk about the age of 10 years as a limit "under which one could consider that incapacity exists and if we move to an age above, for instance 12, it is clear that he has capacity”. Nevertheless, clearly against this yardstick, STS 12.6.1997 [RJ 1997\5423], considers that a 12 year old child has no capacity.

[10]   M. Navarro Michel, La responsabilidad civil de los padres por los hechos de sus hijos, Barcelona, Bosch, 1998, p. 112.

[11]   S. Díaz Alabart, La responsabilidad por los actos ilícitos dañosos de los sometidos a la patria potestad o tutela, [1987] ADC 852-857; F. Pantaleón Prieto, Comentario a la STS de 22 de septiembre de 1984, [1984] 6 CCJC 1779 et seq; R. De Ángel Yagüez, Tratado de responsabilidad civil, Madrid-Deusto, Civitas-Universidad de Deusto, 1993, p. 347.



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