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When parents are scapegoats

UNDERSTANDING THE LAW, By Mariano Zunino Siri

ARTICLE 1902 of Spanish Civil Code establishes the obligation for parents to respond and repair the damage caused when, by action or omission, damage is caused to another.

In addition, article 1903 of the same Code adds that this obligation arises not only for their own acts or omissions, but also for those under their care.

The parents are responsible for the damages caused by children under their care, and are the guardians for damages caused by the minors under their authority, who live with them.

This means that parents are responsible, and it’s their own fault when failing to supervise their minor children. But, this responsibility ceases if they can prove that the diligence of a “good parent” was used to prevent any harm.

According to the case-law, in order to determine whether or not the parents are liable before third parties for acts committed by their children, it is necessary to establish a “breach” of the duty to supervise, an omission “in custody” or “in monitoring”.

It starts from a presumption of concurrent guilt in whoever performs the powers and duties, which are part of parental authority, so that it can be configured as a liability for risk or “near objective”, with the consequent reversal of the burden of proof.

This means that it is the responsibility of the defendants, on whom the procedural burden weighs, to justify the reality of the case referred to in Article 1903 of the Civil Code.

The jurisprudence has many examples of parents condemned to pay indemnity for damages caused by their children.

The High Court of Pontevedra revoked the judgement ruled by the Court, and, jointly, ordered several parents to pay compensation of 157,000 euros for injuries suffered by a motorcycle driver, who had been struck by a ball that children were playing with. This happened in a parking area in the evening.

The High Court considered that even if the specific action of the child who kicked the ball caused the accident, the rest of defendants should also be held responsible.

In cases like this, in which the harmful result is a consequence of several contributions, it is not feasible to individualise the contribution of each.

It was considered that the parents did not take the measures normally required to avoid the result.

The Supreme Court condemned parents for the irreversible eye injury suffered by a 16-year-old girl, who was sitting on a park bench in a public garden. She was hit hard in the face by a leather ball, kicked by a 17-year-old boy who was playing football nearby with some friends.

The court understood that although the game is not susceptible to generate a special risk, nor is it so innocuous when given special circumstances: in this case, a leather ball was driven with great force at a person not playing.

There was a possibility of damaging third parties, which actually  happened. The sentence ordered the parents of the responsible minor to pay 60,000 euros by way of compensation.

In another judgement, ruled by a Barcelona Court, the parents were relieved of their responsibility. A 14-year-old boy was at the exit of the park, talking with his friends and carrying a ball. It slipped from his hands and went on to the road, without excessive force, hitting a motorcyclist.

There are many cases like these, so it would take an extensive column to list them all!

The most important thing to bear in mind is that the responsibility of the parents for the damages caused by the children (with exceptions) is not a trivial matter, especially when they have to prove they acted with the “diligence of a good parent”.

Mariano Zunino Siri is a lawyer registered at the Tenerife Bar Association since 1991. Web: www.abogadosmadridtenerife.com

Short URL: http://www.canarianweekly.com/?p=36564

Posted by on Jun 22 2017. Filed under Legal Matters. You can follow any responses to this entry through the RSS 2.0. Both comments and pings are currently closed.

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