Johnson v. Dempsey , 52 State Rptr. 942 ( 1995 )

NO. 94-448
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
MICHAEL JOHNSON,
Plaintiff and Appellant,
v.
DON DEMPSEY, SANDY DEMPSEY, and CODY 5:p 0819%
DEMPSEY, a Minor; DON DONER, MARY DONER, i; 1 (,'.' f
and BRIAN and BRETT DONER, r,,.*' ., +i,<,!,<,; I$
,,,I:‘Ty:< .-j;: <<~L!,:.y;.y:;t~: CO’JRT
~, ;, :> TTizy c;+ ;j~;<.>:‘rANA
Defendants and Respondents.
APPEAL FROM: District Court of the Fifth Judicial District,
1n and for the County of Beaverhead,
The Honorable Byron L. Robb, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Robert T. Cummins, Attorney at Law,
Helena, Montana
For Respondent:
Ross P. Richardson, Mark A. Vucurovich,
Henningsen, Vucurovich & Richardson,
Butte, Montana (for Dempseys)
Brendon J. Rohan, Poore, Roth & Robinson,
Butte, Montana (for Don and Mary Doner)
Vincent J. Kozakiewicz, Attorney at Law,
Dillon, Montana (Brian and Brett Doner)
Submitted on Briefs: May 25, 1995
Decided: September 8, 1995
Filed:
Justice Terry N. Trieweiler delivered the opinion of the Court.
The plaintiff, Michael Johnson. filed a complaint in the
District Court for the Fifth Judicial District in Beaverhead County
in which he alleged that the defendant parents were liable for
damages to his property caused by the defendants' children. The
District Court denied the parents' motions for summary judgment,
but concluded that the parents' potential liability was $2,600 per
child, plus costs, pursuant to §§ 40-6-237 and -238, MCA. The
parents deposited $7,890 with the clerk of court and moved the
court to dismiss them as defendants. The District Court granted
the parents' motions. Johnson appeals from the District Court's
order. We affirm the District Court.
The issue on appeal is:
Did the District Court err when it held that liability imposed
upon parents pursuant to § 40-6-237, MCA, is limited to $2,600,
plus costs, per child based on the facts in this case?
FACTUAL BACKGROUND
Michael Johnson owns an automobile salvage yard north of
Dillon where he keeps automobiles and building and salvage
materials. Brian and Brett Doner are brothers under the age of 18,
and are the sons of Mary and Don Doner. Cody Dempsey is under the
age of 18, and is the son of Sandy and Don Dempsey. Johnson
alleged that Brian, Brett, and Cody entered his salvage yard on
May 24, 25, and 26, 1991, vandalized vehicles, building materials,
and other supplies, and caused him damages in excess of $27,750.
The parents acknowledged that Brian, Brett, and Cody entered
2
Johnson's property on or before May 26, 1991, but contended that
for purposes of Montana's parental liability statutes, the boys'
alleged acts gave rise to a single claim for damage.
On March 1 and March 8, 1994, the parents moved for summary
judgment and filed their supporting memorandum. On March 11, 1994,
Johnson filed his brief in response to the parents' motions.
The court denied the parents' motions, but offered an
Explanatory Comment concerning its interpretation of the parental
liability statutes. In the Comment, the court stated that when,
"the alleged damage occurred to property in the same location and
substantially at one time (the complaint says twice on 5/26/9X,
while plaintiffs' brief indicates on 5/24-25-26/91), that the
parents' liability is limited to $2,600 per child." Based on this
conclusion, the court found the Dempseys liable for $2,600 plus
costs, and the Doners liable for $5,200 plus costs, for a total of
$7,890.
The Dempseys and Doners subsequently deposited $7,890 with the
Beaverhead County Clerk of Court and filed motions in which they
requested the District Court to dismiss them as defendants. The
court granted the parents' motions and ordered the clerk of court
to disburse the $7,890 to Johnson. Johnson appeals from the
District Court's dismissal order.
DISCUSSION
Did the District Court err when it held that liability imposed
upon parents pursuant to § 40-6-237, MCA, is limited to $2,600,
plus costs, per child based on the facts in this case?
3
We review a district court's conclusions of law to determine
whether the court's application of the law was correct. In reMorriage
ofSchnrn (Mont. 1994), 878 P.2d 908, 910, 51 St. Rep. 676, 677
(citing InreMarriageofBurris (1993), 258 Mont. 265, 269, 852 P.2d 616,
619).
Montana case law provides that a parent is not liable for his
or her child's torts. JL.v.Kienenberger (1993), 257 Mont. 113, 117-18,
848 P.2d 472, 475. The District Court recognized this principle,
when it stated in its Comment that 'I [plarents are not ordinarily
liable for a child's torts in [the] absence of negligence or a
respondeat superior situation, but may be statutorily liable in
Montana in limited situations . . .' In Kienenberger, 848 P.2d at
475, we held that a parent could be liable based on the doctrine of
respondeatsuperior if a child acted as that parent's agent. Moreover,
5 27-l-718(2), MCA, imposes liability on parents for up to $500
when a minor child shoplifts.
Here, neither of these specific exceptions applies. Instead,
Johnson based his complaint on Montana's parental liability
statutes. These statutes provide, in relevant part:
Any . person . is entitled to recover damages in
a civil action in an amount not to exceed $2,500 . .
from the parents of any person under the age of 18 years,
living with the parents, who shall maliciously or
willfully destroy property . .
Section 40-6-237, MCA.
The recovery shall be limited to the actual damages in an
amount not to exceed $2,500 in addition to taxable court
4
costs and a reasonable attorney's fee to be set by the
court not to exceed $100.
Section 40-6-238, MCA.
In support of his argument that the District Court erred,
Johnson relies on what he calls "the practical approach to the
[parental liability] statute." He claims that the parental
liability statutes impose a duty on parents to control their
children and prevent them from maliciously or willfully destroying
others' property. Johnson further contends that at the very least
the parents are liable for the statutory maximum, multiplied by the
number of children, multiplied by the number of days the children
entered his salvage yard and damaged his property. By his
calculation, the parents have a minimum liability by statute in the
amount of $23,400. Johnson bases his contention on the Texas case
of Buiev. Longspaugh, et& (Tex. Civ. App. 1980), 598 S.W.2d 673. In
Buie , the court considered whether Texas's parental liability
statute limits a parent's liability for several acts to a total of
$5,000 (the statutory maximum) or to $5,000 per act.
In Buie, two minors with different parents entered and damaged
three homes belonging to three different people. The court
concluded that each parent of the two minors was liable to each
homeowner, up to the statutory maximum, for each of their child's
separate acts (i.e., $5,000 x 3 (homeowners) x 1 (minor) or
$15,000 per parent). Buie, 598 S.W.Zd at 676. However, the facts
in Buie are distinguishable from those in this case. In Buie, there
were three victims, whereas here there is one victim. In Buie, the
5
damage occurred at three homes. In this case, the damages occurred
at one site. Johnson is correct when he states that "[tlhe fact
that the damages here occurred on 3 different days makes the
application of the [parental liability] statute unique from the
decisions of other states." See, e.g., hvis v. hfnrtin (1968) , 240 N.E.2d
913 (four children of same parents damaged one person's home and
the court found parents liable for statutory maximum multiplied by
four); Hyman v. Davies (Ind. App. 1983), 453 N.E.2d 336 (one minor at
same site and on same day stole and damaged property belonging to
two people, and court found minor's parents liable for statutory
maximum to each property owner). We do not, however, find
Johnson's reliance on Buie persuasive.
Montana's parental liability statutes do not specifically
establish liability for each malicious or willful act committed.
Section 40-6-237, MCA, provides that "any . person . . is
entitled to recover damages from the parents of any person
under the age of 18 years .I' (Emphasis added.) Johnson, as
the person whose property was damaged, is entitled to recover
damages against the parents of any child who damages his property.
In the case at bar, there were three children involved in the
property damage. Therefore, each parent is liable for the act or
acts of each of his or her children.
The dispositive question is how many acts were committed for
purposes of the parental liability statutes. Based on the
pleadings, there is a dispute as to how many times the children
6
entered Johnson's salvage yard. However, for purposes of this
appeal, we will assume that the allegations in Johnson's District
Court brief are correct. Johnson alleges that the children entered
his property three times: May 24, 25, and 26, 1991, damaging his
property on each day. He contends that this amounts to a minimum
of three separate acts per child. The parents contend, however,
that, because Johnson's property damage occurred at the same
location and at substantially one time, there was, for purposes of
the parental liability statutes, one act per child.
The Montana Legislature undoubtedly enacted §§ 40-f-237 and
-238, MCA, to protect third parties against property damage caused
by minors. Other state courts, as well as at least one
commentator, have expressed this view. See, e.g., Buie, 598 S.W.Zd at
6 7 6 ; Hyman, 453 N.E.2d at 338 (statute designed to protect innocent
victims from damage by "irresponsible judgment proof minors");
T. H. Stokes, Liability of Insurer Under Personal Liability Policy for Damage Caused by
Wirful Misconduct ofInsured’s Child--Application ofNew California Statute, 7 Hastings L . J
98, loo-01 (1955) ("The most obvious aim [of the parental liability
statute] is to provide a satisfactory remedy for innocent third
parties injured by a minor, where for all practical purposes they
would have none under common law.")
The parental liability statutes serve the valid public policy
of protecting innocent third parties against property damage by
minors. However, we conclude that when it enacted Montana's
parental liability statutes, the Legislature also intended that
7
parents not be exposed to substantial liability for damages caused
by their children which was not the fault of the parent. Section
40-6-238, MCA, is clear when it states that "[tlhe recovery shall
be limited to the actual damages in an amount not to exceed $2,500
. . . II (Emphasis added.)
We conclude, therefore, pursuant to Montana's parental
liability statutes found at §§ 40-6-237 and -238, MCA, that when
malicious or willful acts of a child occur at substantially the
same time (as we conclude they did in this case), and to
substantially the same property (as we conclude was done in this
case), each parent's liability is limited to a maximum of $2,600,
plus costs, for each of that parent's children who are at fault.
We recognize, as did the District Court, however, that because
the statutes with which we are concerned lack specificity, they
must necessarily be applied on a case-by-case basis considering
such variables as the number of victims, the number of children,
the time between acts of vandalism, and the nature of damage caused
where more than one act is complained of.
Based on the facts in this case, we affirm the judgment of the
District Court.
/
Ju tick
We concur:
September 8, 1995
CERTIFICATE OF SERVICE
I hereby certify that the following certified order was sent by United States mail, prepaid, to the
following named:
Michael Johnson
1300 Highway 91 No.
Dillon. MT 59725
ROBERT T. CUMMINS
Attorney at Law
One North Last Chance Gulch
Helena, MT 59601
Mark A. Vucurovich, Esq.
Henningsen, Vucurovich & Richardson
P.O. Box 399
Butte, MT 59703
Brendon J. Rohan, Esq.
Poore, Roth & Robinson
1341 Harrison Ave.
Butte, MT 59701
Vincent J. Kozakiewicz
Attorney at Law
P.O. Box 588
Dillon, MT 59725
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA
BY:/ &&L&&i@,
Deputy.