The Tort Duty of Parents to Protect Minor Children

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The Tort Duty of Parents to Protect Minor Children
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The Tort Duty of Parents to Protect Minor Children

Vincent R. Johnson & Claire G. Hargrove

51 Vill. L. Rev. 311 (2006).

American tort law should recognize the parent-minor child relationship as a “special relationship.”  Imposing an affirmative duty on parents to act to prevent serious harm from occurring to their minor children, despite the Restatement (Third) of Tort’s refusal to impose such a duty, keeps with public expectations and public policy. The drafters of the Restatement do not recognize such a duty because there is little precedent to support the imposition of affirmative duties on family members. However, despite this dearth of reported cases, American courts should recognize an affirmative duty on the part of parents to aid their minor children to prevent serious harms.

The relationship between parents and their minor children fits into the “special relationship” exception to the general no-duty-to-rescue rule and that relationship’s status as such is reflected in the law generally and in tort law in particular. Further, public policy supports the notion that American law should recognize that the parent-minor child relation is a “special relationship” warranting the imposition of an affirmative duty to rescue on the parent. Courts should find that the parent-minor child form of familial relation offers a strong case for recognition of an affirmative duty to act.

Keywords: Minor Children, Minor Child, Minor, Family Members, Affirmative Duty, Parent-Minor Child, Special Relationship, Loco Parentis, Duty to Rescue, Laser v. Wilson.

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