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 (,'.'

and BRIAN and BRETT DONER, r,,.*'

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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)

Filed:

Submitted on Briefs: May 25, 1995

Decided: September 8, 1995
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

676; 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.)

W e 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.