Florida’s Tort Reform and its Impact on Subrogation
By Matthew Peaire | Blog Posts
March 24, 2023
Overview | Blog Posts | Subrogation & Recovery | Zachary Jett | Related | Print | Share
As subrogation professionals, we may be tasked with evaluating property loss claims where a child caused or contributed to the property damage. For example, is a child playing with matches or a lighter liable for a fire loss? Or, is a child liable for driving a vehicle into the neighbor’s home? In some instances, a parent may be held liable for the child’s acts. As more fully set forth below, when evaluating a claim involving a child, it is important to evaluate the age and capacity of the at-fault party and to be familiar with state specific statutes regarding parental liability.
The applicable standard of care in evaluating a claim based on negligence is “the reasonable person standard.” That is, the person’s conduct is measured against the reasonable, ordinary and prudent person standard. For an adult, this is measured objectively, taking into consideration the physical characteristics, the average mental ability, and the knowledge of an average member in the community. When a child is involved in a loss, a majority of courts take the view that a child is required to conform to a standard of care of a child of like age, education, intelligence, and experience.
This analysis permits a subjective evaluation of these factors. Generally, children over the age of 14 are presumed to be capable of negligence, and are evaluated by the subjective standards: Evidence may include performance in school, peer review, and education and training. Minors engaged in adult activities, such as flying an airplane, driving a motor vehicle or driving a motorboat, are held to the standards of an adult engaged in such activities.
Many states apply the “Rule of Sevens.” Under this standard, a child under the age of seven is presumed to be incapable of negligence. A child between the ages of seven and fourteen is presumed to be incapable of negligence, but the presumption may be rebutted by showing the child in question possesses the skill, capacity or understanding of the activity involved. And a child over the age of fourteen is presumed to be capable of negligence. Mississippi, North Carolina, Tennessee, and Georgia adopted similar approaches based on the “Rule of Sevens.” Other states, like South Carolina, take a case by case approach for evaluating the subjective standards of a child. Of course, the same standards applied in the case by case approach apply when evaluating the comparative fault of the child to other defendants.
In certain instances, parents of the at-fault child may become the target, as the adults are likely the ones to carry insurance that may respond to a Plaintiff’s claim. Importantly, parents are not uniformly held responsible for their child’s actions just by virtue of the relationship. However, liability for the negligence of a minor child may be imposed on the parent if they know or should have known, the child’s habits, tendencies or propensities toward the particular behavior, have the opportunity and ability to control the child, or have made no reasonable effort to restrain the child. The parent may also be liable for directly aiding or encouraging the negligent act.
A number of states enacted legislation directed toward parents for the intentional conduct of their children. “Parental Responsibility” legislation varies by state but often sets a monetary limit to be imposed against parents for willful or malicious acts of their minor children. In the Southeast, statutory monetary limits imposed against parents vary greatly: $1,000.00 in Alabama; $2,000.00 in North Carolina; $2,500.00 in Virginia; $5,000.00 in Mississippi and South Carolina; $10,000.00 in Georgia; and, actual damages in Florida and Tennessee.
Subrogation professionals face unique facts with every claim and the opportunity for subrogation should be carefully evaluated. In many cases, especially those involving minors in large losses, consultation with legal counsel is recommended and can also be beneficial in pursuing recovery. Obviously, each case is unique and should be evaluated independently. This blog provides a general background as to whether a minor or their parents may be held liable in the pursuit of recovery for a negligent or intentional act. If you have further questions, please contact Zachary Jett.