Kosrow v. Smith
162 Ill. App. 3d 120, 113 Ill. Dec. 104, 514 N.E.2d 1016 (1987)
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Rule of Law:
A parent is not liable for a minor child's failure to prevent a third party's tortious act unless the parent knew of specific prior conduct by the child that would necessitate parental control. Additionally, providing shelter to an adult relative with known dangerous propensities does not, by itself, create a special relationship imposing a duty to control that person's conduct to protect the public.
Facts:
- Ronald S. Acker resided in the home of his brother-in-law, Robert Smith.
- Robert Smith was aware that Acker had a propensity to drive while intoxicated and that Acker's driver's license had been suspended for a prior DUI conviction.
- Smith also knew that Acker had previously taken and used vehicles belonging to the Smith family without permission.
- Robert Smith's 16-year-old son, Jeffrey Smith, who lived in the home, owned a 1974 Cadillac.
- There were no allegations that Jeffrey Smith had ever previously allowed Acker to use his vehicle or had otherwise been negligent in securing his car keys from Acker.
- Acker, while intoxicated, drove Jeffrey Smith’s car and caused a head-on collision, resulting in the deaths of Beverly Robinson, Mary Ann Hoffman, and Colleen R. Byrne.
Procedural Posture:
- Plaintiffs filed a complaint in the trial court against Ronald S. Acker and Robert Smith.
- The trial court dismissed the initial counts against Robert Smith for failure to state a cause of action.
- Plaintiffs filed an amended complaint alleging three counts against Robert Smith.
- Robert Smith filed a motion to dismiss the amended complaint's counts against him.
- The trial court granted Smith’s motion to dismiss with prejudice.
- Plaintiffs appealed the dismissal to the Illinois Appellate Court, Second District.
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Issue:
Does a homeowner have a legal duty to prevent a live-in adult relative with a known history of drunk driving from accessing and operating a vehicle owned by the homeowner's minor child who also resides in the home?
Opinions:
Majority - Justice Unverzagt
No. A homeowner does not have a legal duty to prevent a houseguest from accessing a vehicle owned by a third party, even if that third party is the homeowner's minor child residing in the same house. The court rejected all three of the plaintiffs' theories of liability. First, a claim for negligent entrustment fails because Robert Smith did not own or control the vehicle; his son, Jeffrey, did. Second, a parent's duty to control a minor child is triggered only when the parent has notice of specific prior acts of the child that create a foreseeable risk, and there were no allegations that Jeffrey had previously acted negligently regarding his car keys or Acker's access to his vehicle. The plaintiffs' allegations concerned only Acker's prior bad acts, not Jeffrey's. Third, merely providing shelter to Acker did not constitute 'taking charge' of him under the Restatement (Second) of Torts, and thus did not create a special relationship that would impose a duty on Robert Smith to control Acker's conduct for the protection of the public.
Analysis:
This decision clarifies the narrow scope of parental liability and a homeowner's duty to control third parties. It establishes that for parental liability to attach for a child's inaction, the parent must be on notice of the child's specific risky behavior, not merely the dangerous propensities of another person interacting with the child. The ruling also reinforces that providing housing to an adult, even one known to be dangerous, does not create the 'special relationship' required to impose a duty of control. This prevents homeowners from becoming de facto insurers for the tortious acts of every person they allow to reside with them.
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