Summary
In Peterson v. Slone, 56 Ohio St.2d 255, 10 Ohio Op.3d 396, 383 N.E.2d 886 (1978), the defendants' minor son was involved in a traffic accident while driving a vehicle without the owner's consent.
Summary of this case from Hanks v. BoothOpinion
No. 78-382
Decided December 7, 1978.
Parent and child — Parent's liability for minor's tort — R.C. 3109.09, construed — Subrogated insurer may bring action.
APPEAL from the Court of Appeals for Cuyahoga County.
This cause involves the appeal of a judgment of the Court of Appeals which affirmed the judgment of the trial court rendered against the defendant-appellant, Josie Slone, in a action for damages brought pursuant to R.C. 3109.09. The damages complained of were the result of an automobile accident caused by the defendant's son, Christopher, who was driving an automobile that he had taken without the consent of the owner.
The facts, in brief, giving rise to this action are that Christopher, then 13 years of age, came upon an unattended automobile with the keys in the ignition and the engine running. He proceeded to get in and drive the automobile for a distance, and while attempting to make a left hand turn, he failed to yield the right of way to oncoming traffic, and collided with the automobile of the plaintiff Richard Peterson, which collision resulted in $387.10 damages to Peterson's automobile.
Peterson's insurance company reimbursed the insured for the damages, with the exception of $100 deductible under the policy, and, subsequently, Peterson and his insurer brought this action against Christopher, such action being founded upon the negligence of Christopher. The plaintiffs joined as party-defendant Christopher's mother, pursuant to R.C. 3109.09, which section permits the bringing of an action for the recovery of compensatory damages from parents having custody and control of a minor under the age of 18 years who "willfully damages" the property of an owner.
The trial court held for plaintiffs. The Court of Appeals, affirming, held that Christopher "willfully" took the vehicle that he was driving, and therefore this minor had "willfully" occasioned the resulting damage to the plaintiff's automobile. The Court of Appeals held further that that a subrogated insurance company may bring an action pursuant to R.C. 3109.09 for recovery, within the limits of the statute, of amounts paid out under the insurance policy.
The cause is now before this court upon the allowance of a motion to certify the record.
Messrs. Keller Scully and Mr. William F. Scully, Jr., for appellees.
Ms. Sheila Tew, for appellant.
In this cause, the Court of Appeals, in finding that Christopher had willfully damaged the automobile of the plaintiff, stated that "[t]he behavior upon which our attention is focused is the initial act of taking the car which belonged to another and driving it without authority, without a license, and without the experience or knowledge to do so. The behavior on the part of Christopher Slone was, in and of itself, willful, for it was done without regard to the consequences and without just cause. As we pointed out in Michael Bill, supra [ Motorist Mut. Ins. Co. v. Bill (Jan. 12, 1978), case No. 36826, unreported], R.C. 3109.09 would lose its effectiveness if the plaintiff were required to prove that the injury as well as the action producing it must be intentionally committed by the minor in question * * *."
We must reverse the Court of Appeals as to this conclusion. As stated by the dissenting judge of that court, "* * * the majority interpreted R.C. 3109.09 as if the word `negligence' were included in its language. If that were the intention of the legislature, it should have said so as it did in R.C. 4507.07."
The Court of Appeals here applied a form of "foreseeable consequences" test of negligence law in finding that Christopher had willfully damaged the plaintiff's property. However, in the interpretation and application of R.C. 3109.09, it is not necessary or proper to consider the many shadings of the various elements of negligence terminology, such as "wantonness," "grossness," "without regard for consequences," "reasonable foreseeability of the consequences," in that this particular statute may be reasonably interpreted to mean that there be a finding that the minor intended to do the damage that was, in fact, done.
The basic issues, as presented within this cause, were considered and decided this date by the court in the case of Motorists Mut. Ins. Co. v. Bill (1978), 56 Ohio St.2d 258. We need not repeat all the comments found within Motorists Mutual relating to the interpretation of R.C. 3109.09 which we feel are equally applicable here. We need only repeat that within the purview of this section of law, "willfully damages property" means the intentional doing of the act which occasions the injury and resulting damage, coupled with the intent or purpose of causing an injury. Under this section, in order that parents may be found liable for the tortious acts of their minor children, both the initial act, as well as the subsequent injury, must be found to be intentional.
Here, although the initial act of stealing the automobile was intentional, and although the act of driving the automobile, and making the left hand turn, was intended by Christopher, neither the specific act of running into this plaintiff's automobile, nor the resulting damages, were shown to be intentional. Therefore, the statute would not afford a right of action against the minor's parent in this cause.
We turn to the second issue, relating to whether the subrogated insurance company which has paid the damage claim of the owner may bring an action against the parents of the minor pursuant to R.C. 3109.09. We again need not repeat all that we stated on the issue in Motorist Mutual, supra, other than to say that such subrogee should be able to "stand in the shoes" of the owner, and is a real party in interest to bring an action under this statute to hold the parents vicariously liable for the willful tortious acts of their minor children. We are in agreement with the Court of Appeals on this issue.
Based upon all the foregoing, the judgment of the Court of Appeals affirming recovery of damages in favor of plaintiffs is hereby reversed.
Judgment reversed.
LEACH, C.J., HERBERT, W. BROWN, P. BROWN, HOLMES and LOCHER, JJ., concur.
CELEBREZZE, J., dissents.
HOLMES, J., of the Tenth Appellate District, sitting for SWEENEY, J.