Monday, July 5, 2010
Should parents be punished for smoking while their kids are in the car?
I find the issue of whether parents should be liable for injuries to their children very interesting. In class, I have discussed the issue in several different contexts. For example, there is the question of whether a mother should be liable to a child born with injuries that can be traced to her conduct while she was pregnant, and the issue of whether a child should have a cause of action for injuries caused when a parent refuses to allow medical treatment to a child for religious reasons. These are controversial/complicated topics. In other contexts, the issue typically depends on whether the court wants to allow parents leeway in making parental decisions on how to discipline their children or on how to educate them etc. I am writing about this today because according to a recent story in The Consumerist the New York State Assembly is considering a bill to prohibit smoking in a car when riding with a child under the age of 14. The bill would impose a $100 fine for every violation. The story is available here but the more interesting part is the readers' comments under it. Here is one initial question: should parents be liable for injuries caused to their children from second hand smoke? I am sure you can argue that, given what we now know about second hand smoke, a reasonable prudent person would not smoke in a closed space when children are present, couldn't you? Also, assuming the proposed law is adopted, should the statute be used as the basis for a "negligence per se" argument against the parents? It can clearly be argued that the statute is appropriate to be considered an expression of a duty of care and therefore that its violation would be evidence of negligence. Assuming there is no parental immunity in the jurisdiction, this would allow a child to sue his or her own parent for damages caused by the violation. On the other hand, it can be argued it is unlikely that a court would take this view because imposing tort liability would result in a very disproportionate level of liability when compared to the level of libility originally intended by the legislature under the statute. This, I think, would be a strong argument given a violation of the statute only results in a $100 fine. Also, as a practical matter, it is not likely that a single violation would give rise to an injury for which the child could recover damages. Thus the question might be more theoretical. The recognition of the theoretical possibility perhaps could, in turn, open the door to more claims based on parents' conduct. Thanks to the Consumer Law and Policy Blog for the information.