Hanks v. Booth

• Citation: 726 P.2d 1319,240 Kan. 30
• Decision Date: 31 October 1986
• Docket Number: No. 57776,57776
• Parties: Michael R. HANKS, Appellee, v. Richard and Traci BOOTH, and Angie Richardson, Appellants.
• Court: United States State Supreme Court of Kansas

Page 1319

726 P.2d 1319

240 Kan. 30

Michael R. HANKS, Appellee, v. Richard and Traci BOOTH, and Angie Richardson, Appellants.

No. 57776.

Supreme Court of Kansas.

Oct. 31, 1986.

Syllabus by the Court

In an action pursuant to K.S.A. 38-120 for recovery of damages for destruction of a barn by fire started by three young children, the record is examined and it is held: (1) K.S.A. 38-120 requires both the act and the injury or damage to be willful or malicious before parental liability will be imposed, and (2) the opinion of the Court of Appeals reversing the district court judgment is affirmed.

Craig C. Blumreich, of Benfer and Farrell, Topeka, argued the cause and James E. Benfer, III, of the same firm was with him on the brief, for appellants Richard and Traci Booth.

Jay W. Vander Velde, of Atherton, Sanderson & Vander Velde, Emporia, argued the cause and was on the brief, for appellant Angie Richardson.

Marc A. Hurt, Olathe, argued the cause and was on the brief, for appellee.

HOLMES, Justice:

Appellee, Michael R. Hanks, filed suit in Lyon County District Court against the appellants, parents of three young children, for damage to his barn resulting from a fire ignited by the children playing with matches. The action was brought pursuant to K.S.A. 38-120. Following trial to a jury a verdict was rendered in favor of Mr. Hanks for $20,170.00. The judgment was reversed by the Court of Appeals in Hanks v. Booth, 11 Kan.App.2d 149, 716 P.2d 596 (1986). We granted review.

It is not disputed that appellee's barn was destroyed as the result of appellants' children, Angie Booth, age 7, Richard Booth, Jr., age 8, and Eric Coffman, age 8, playing with matches. It is also clear that none of the children intended to damage the barn and that when the last child left the barn, he thought all fire had been extinguished. K.S.A. 38-120 provides:

"Any person receiving bodily injury or any person, partnership, corporation, political subdivision or other entity whose property has been damaged or destroyed shall be entitled to recover damages in an appropriate action at law in a court of competent jurisdiction from the parents of any child, living with the parents, who maliciously or willfully injured such person or damaged or destroyed such property while under the age of eighteen (18) years. Such recovery shall be limited to the actual damages in an amount not to exceed one thousand dollars ($1,000), in addition to taxable court costs, unless the court or jury finds that the malicious or willful act of such minor causing such injury, damage or destruction is the result of parental neglect, in which event the one thousand dollars ($1,000) limitation does not apply. Recovery under this section for bodily injury shall be limited to actual medical expenses."

The statute was originally enacted in 1959 primarily for the benefit of governmental entities in combating the ever increasing acts of vandalism perpetrated against schools and other governmental property. Recovery was limited to $300.00 for property damage and did not include the element of parental neglect. In 1965 the statute was amended to provide for a maximum recovery of $1,000.00 unless the property damage resulted from parental neglect. In 1978 the statute was again amended to its present form which provides recovery for personal injury as well as property damage.

The Court of Appeals found that the statute requires both a malicious or willful act on the part of the children and that the resulting personal injury or property damage be intended by the children before the parents may be held liable. As there was no evidence that the children intended to damage or destroy the barn, the Court of Appeals found that the defendants' motion for a directed verdict should have been sustained and the judgment of the district court was reversed.

The decision of the Court of Appeals interpreting the willful or malicious requirement of K.S.A. 38-120 was based upon the majority rule found in a number of similar cases from other jurisdictions relating to parental liability for vandalism. In the present case appellee does not seriously propound that the children acted maliciously, i.e., with an ill will toward him and an intent to burn down the barn. Rather, he argues that the children intended to light matches and burn small piles of hay, and therefore are liable for the resulting destruction of appellee's barn. Appellee now asks this court to find that the children's lighting matches or igniting small piles of hay is not only "willful" conduct but also willful damage to the barn sufficient to impose liability on their parents. That position would serve to impose parental liability for a child's ordinary negligence instead of the standard provided for by law. In the present case the children's conduct, while negligent, does not demonstrate a "willful" or "malicious" intent on their part.

Several cases from other jurisdictions illustrate the difference between ordinary negligence, which is not covered by parental liability statutes, and the type of culpability contemplated under these statutes. In Frost v. Taylor, 649 S.W.2d 264 (Mo.App.1983), the court imposed liability on the father of a 15-year-old boy who shot and killed the plaintiff's dog. The court in Hyman v. Davies, 453 N.E.2d 336 (Ind.App.1983), imposed liability on parents where the child broke into and stole items from the plaintiffs' vehicles. Similarly, parents were held responsible for the acts of a group of minors who ganged up on and beat the plaintiff in Lamb v. Peck, 183 Conn. 470, 441 A.2d 14 (1981). Finally, in Buie v. Longspaugh, 598 S.W.2d 673 (Tex.Civ.App.1980), the parents of two youngsters were held responsible for water damage caused when the children broke into three houses, plugged all the drains, and turned on the...