Lamb v. Randall

OPINION

WOOD, Chief Judge.

While under the age of 18, David, with another, burglarized plaintiff’s home and took “jewelry and coins of a fair value of $2,000.00”. The property stolen was never recovered. Plaintiff obtained judgment against defendants, who are the parents of David, for the value of the property stolen by David. The parents appeal, asserting they were not liable under the applicable statute. We agree.

Section 32-l-46(A), N.M.S.A.1978 states:

A. Any person may recover damages not to exceed two thousand five hundred dollars ($2,500) in a civil action in a court or tribunal of competent jurisdiction from the parent, guardian or custodian of a child when the child has maliciously or willfully injured a person or damaged or destroyed property, real or personal, belonging to the person bringing the action. The parties stipulated:

The issue to be resolved by the Court is: Does the crime of burglary, committed by a child, when the stolen items are not regained by the victim, come under the purview of § 32-1-46 N.M.S.A. (1978 Comp.) making the parents liable in damages.

The stipulation was incorrect in stating the issue as involving the crime of burglary. That crime is defined in § 30-16-3, N.M.S. A.1978 in terms of an unauthorized entry with the requisite intent. State v. Madrid, 83 N.M. 603, 495 P.2d 383 (Ct.App.1972). The issue does not involve burglary, but the stealing of property, which is larceny. Section 30-16-1, N.M.S.A.1978 (Cum.Supp. 1980). The question is whether the parents of a child may be held liable under § 32-1-46(A), supra, for the child’s theft of property.

In re Appeal No. 769 September Term, 1974, Circuit Ct., 25 Md.App. 565, 335 A.2d 204 (1975) discussed a Maryland statute which made the parents liable for “willful or malicious destruction or theft of any property”. An article beginning at 55 Iowa L.Rev. 1037 (1969-70) discusses an Iowa statute that made the parents liable “for actual damages to person or property caused by unlawful acts of such child.” Section 32-l-46(A), supra, is more limited; it is not worded in terms of theft, and it is not worded in terms of actual damage or unlawful acts. Compare § 31-17-1, N.M.S. A.1978 which provides for the victim to recover “actual damages” from the criminal.

Ross v. Souter, 81 N.M. 181,464 P.2d 911 (Ct.App.1970) states: “[I]n the absence of statutory law to the contrary the mere relationship of parent and child imposes no liability upon the parent for torts of the minor child.” Similarly, in the absence of statutory authority, there is no basis for holding the parents, qua parents, civilly liable for crimes of their minor child. See generally, Parental Liability for a Child’s Tortious Acts, 81 Dick.L.Rev. 755 (1976). The only issue in this case is whether § 32-l-46(A), supra, provides such liability.

Section 32-1 — 46(A), supra, provides for the liability of parents “when the child has maliciously or willfully ... damaged or destroyed property”. It is undisputed that the property stolen by David was “pawned for money . .. but not physically mutilated or damaged.” There being no evidence that the property was damaged or destroyed, the parents are not liable, under § 32-1 — 46(A), supra, for the-value of property stolen by David.

The judgment in favor of plaintiff is reversed. The cause is remanded with instructions to enter a new judgment in favor of defendants.

IT IS SO ORDERED.

WALTERS, J., concurring. ANDREWS, J., dissenting.