We are able to find but one authority in this state upon the question involved here, but as that case stands unmodified and uncontradicted, we are bound by such authority and must decide this case in harmony therewith. That case is the case of Hagerty v. Powers, 66 Cal. 368, [56 Am. Rep. 101, 5 P. 622], in which the complaint alleged that the father negligently, carelessly, and willfully countenanced his child in having a loaded pistol, which pistol the boy so carelessly used as to shoot the infant child of the plaintiff. A demurrer was interposed and sustained.
It is the settled rule in this state that a parent is not liable for the tort of his minor child without participation in the fault by the parent. ( Hagerty v. Powers, 66 Cal. 368 [5 P. 622, 56 Am. Rep. 101]; Figone v. Guisti, 43 Cal.App. 606, 611 [ 185 P. 694]; Hudson v. Von Hamm, 85 Cal.App. 323, 326 [ 259 P. 374]; 20 R.C.L., p. 627.) Hence, when we apply the rule of strict construction heretofore noted as governing statutes of this nature, the rule of the Gimenez case limiting the liability of the parent to acts of "negligence" is sound.
Traditionally, under the common law, the mere fact of a parent-child relationship was not a basis for vicarious liability. ( Hagerty v. Powers (1885) 66 Cal. 368 [5 P. 622].) At common law, parental liability for a child's tort was imposed only when there was an agency relationship (see, e.g., Kallenberg v. Long (1924) 68 Cal.App. 317 [ 229 P. 57]) or when the parent was himself or herself guilty in some way in the commission of the crime (see, e.g., Ellis v. D'Angelo (1953) 116 Cal.App.2d 310 [ 253 P.2d 675]). California followed this rule of nonliability for parents absent some fault by the parent or the application of a theory of vicarious liability until the enactment of section 1714.1 in 1955.
Negligent safeguard of firearms, as differentiated from negligent use, has been dealt with only indirectly under California law. In Hagerty v. Powers (1885) 66 Cal. 368 [5 P. 622], the complaint alleged that defendant-father allowed his minor son to possess a loaded pistol. No cause of action was stated, said the court, because under the then rule a father could not be held liable for the torts of his son.
The only question presented on this appeal is the sufficiency of the complaint to state a cause of action against the defendant parents. Defendants rely principally upon Hagerty v. Powers, 66 Cal. 368 [5 P. 622, 56 Am.Rep. 101], which holds in effect that a father is not liable in damages for the torts of his minor child committed without his knowledge, consent or sanction and not in the course of his employment of the child. There it was alleged that the father "willfully, carelessly, and negligently suffered, permitted, countenanced and allowed" his son of 11 years of age, to have in his possession a loaded pistol, which pistol the boy afterwards so carelessly used and handled as to shoot the infant child of the plaintiff.
516 [ 153 P.2d 97]; Mazzocchi v. Seay, 126 W. Va. 490 [ 29 S.E.2d 12]; Gudziewski v. Stemplesky, 263 Mass. 103 [ 160 N.E. 334]; Kuchlik v. Feuer, 239 App. Div. 338 [267 N.Y.S. 256]; Vallency v. Rigillo, 91 N.J.L. 307 [102 A. 348]; Davis v. Gavalas, 37 Ga. App. 244 [139 S.E. 577]; Mendola v. Sambol, 166 Pa. Super. 351 [ 71 A.2d 827]. Respondent relies on Weber v. Pinyan, 9 Cal.2d 226 [ 70 P.2d 183, 112 A.L.R. 407]; Hagerty v. Powers, 66 Cal. 368 [5 P. 622, 56 Am.Rep. 101]; Figoni v. Guisti, 43 Cal.App. 606 [ 185 P. 694]; and Hudson v. Von Hamm, 85 Cal.App. 323 [ 259 P. 374] as stating a different rule for California. Hagerty v. Powers was a case in which the complaint alleged that the defendant father negligently, etc., permitted his 11-year-old son to have a loaded revolver.
The application of these conflicting rules is well expressed by the able author of Ruling Case Law in volume 20, at page 627, where it is said: "Parents are not liable for torts committed by their minor children without participation in the fault by the parent." ( Hagerty v. Powers, 66 Cal. 369 [56 Am. Rep. 101, 5 P. 622]; Figone v. Guisti, 43 Cal.App. 606, 611 [ 185 P. 694]; Perry v. Simeone, 197 Cal. 132 [ 239 P. 1056]; Paul v. Hummel, 43 Mo. 119, 122 [97 Am. Dec. 381]; Shearman and Redfield on Negligence, 6th ed., sec. 144.) "There are several jurisdictions in which the common law has been changed by statutes based on the civil law, which makes the parent liable for all torts committed by his minor children under his control. . . . It is not enough to make the father liable that he knew his child was heedless or vicious.
In the absence of statute, a parent is ordinarily not liable for the torts of his or her minor child. (See Hagerty v. Powers (1885) 66 Cal. 368, 369 ["a father is not liable in damages for the torts of his [minor] child, committed without his knowledge, consent, or sanction"]; 6 Witkin, Summary of Cal. Law (9th ed. 1988), ยง 1001, p. 391.) In accordance with my understanding of these provisions, I would reject Hoff's claim that the District may be subject to liability based on the duty of its employees under Education Code section 44807 I also conclude that his reliance on Education Code section 44808 is misplaced.
A parent is not responsible for the torts caused by a child. (Civ. Code, sec. 41; Hagerty v. Powers, 66 Cal. 368; 56 Am. Rep. 101; Maddox v. Brown, 71 Me. 432; 36 Am. Rep. 336; Bakerv. Haldeman, 24 Mo. 219; 69 Am. Dec. 430; Paul v. Hummel, 43 Mo. 121; 97 Am. Dec. 381.