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Comparative research of New York and Chinese minor’s torts liability

Minors’ torts liability is always a dilemma to courts, at least to Chinese courts. Without fully developed capacity of judgment and immature value standards, minors can be very destructive, and meanwhile deserve more lenience. The diversity between American and Chinese torts laws in terms to minors’ liability on some level reflects the tendencies of those two countries, which are decided by multiple characteristics. Either system has its own advantage and imperfection, and both of them have room to develop.

1. Differences of torts law

In New York Torts Law, the parent may be held liable:

(1) Where the relationship of master and servant exists and the child is acting within the scope of his authority accorded by the parent; (2) where a parent is negligent in intrusting to the child an instrument which, because of its nature, use, and purpose, is so dangerous as to constitute, in the hands of the child, an unreasonable risk to others; (3) where a parent is negligent in intrusting to the child an instrumentality which, though not necessarily a dangerous thing of itself, is likely to be put to a dangerous use because of the known propensities of the child; (4) where the parent's negligence consists entirely of his failure reasonably to restrain the child from vicious conduct imperilling others, when the parent has knowledge of the child's propensity toward such conduct; and (5) where the parent participates in the child's tortious act by consenting to it or by ratifying it later and accepting the fruits.

Steinberg v. Cauchois , 293 N.Y.S. 147,149.

The parents are liable for the minors’ torts in five given ways. The first situation requires the master-servant relationship and that the minor acts within the scope of parents’ authority. The duty here is generated by master-servant relationship instead of parental relationship.

A master is under a duty to exercise reasonable care so to control his servant while acting outside the scope of his employment as to prevent him from intentionally harming others or from so conducting himself as to create an unreasonable risk of bodily harm to them, if

(a) the servant

(i) is upon the premises in possession of the master or upon which the servant is privileged to enter only as his servant, or

(ii) is using a chattel of the master, and

(b) the master

(i) knows or has reason to know that he has the ability to control his servant, and

(ii) knows or should know of the necessity and opportunity for exercising such control.

Restatement (Second) of Torts section 317 (1965)

The second and third situations requires parents negligently supply chattels to the minors and the inherent danger of the chattels or minors’ propensity toward using it dangerously. It’s analogous to possessor’s duty to chattels. The duty here is imposed to any chattel possessor.

One who supplies directly or through a third person a chattel for another to use is subject to liability to those whom the supplier should expect to use the chattel with the consent of the other or to be endangered by its probable use, for physical harm caused by the use of the chattel in the manner for which and by a person for whose use it is supplied, if the supplier

(a) knows or has reason to know that the chattel is or is likely to be dangerous for the use for which it is supplied, and

(b) has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition, and

(c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous.

Restatement (Second) of Torts section 388 (1965)

By comparing the first three kinds of liability established in Steinberg case and the Restatement of Torts, it is clear that the first three situations are merely applying general rules of negligence to a specific scenario. In another word, if the tortfesor is not a child of the master or possessor, the liability still can be imposed.

The fourth situation is the most frequently referred. Actually, it’s the only situation which considers the special parental relationship and there is no more identity required except for parents of the tortfeasor.

In this situation, to impose a parental liability, the plaintiff have two steps to go. First step is to prove that a minor is liable. However, the standard of care for minors is lower than adult, because “ the law does not exact from an infant the same degree of care and prudence in presence of danger as it exacts from an adult, notwithstanding a child is sui juris. Locklin v Fisher, 36 N.Y.S.2d 162. And it depends on the minor’s “age, capacity, and experience would have exercised under similar circumstances.”McNally v Addis, 317 N.Y.S.2d 157. It means that a minor may be seen as incapable to form a intent or easy to meet the standard of care. In some limited situations, minors may be held the same standard of care as an adult, for example, “when infant participates with adults in sport ordinarily played by adults, on course or field ordinarily used by adults for that sport, and commits primary tortious act, he should be held to same standard of care as adult participants.” Neumann v Shlansky, 312 N.Y.S.2d 951

The second step, which is also the most challenging one, is to prove parents’ negligence. The first thing a plaintiff must prove is the reasonable foreseeability. In New York Torts Law, the foreseeability is ordinary established by proving parents’ knowledge of minor’s propensity. To establish the propensity, single priory incident is usually insufficient. Rivers v. Murray, 815 N.Y.S. 2d 708(“Single prior incident in which child had pushed his father did not establish propensity on part of child to commit vicious acts, as required to impose liability on parents, on theory of negligent supervision, for their son's attack on another boy.”). Davies v. Incorporated Village of East Rockaway , 708 N.Y.S. 2d 147.(“Evidence of single prior altercation in which son was assaulted was insufficient to establish propensity of son to commit vicious acts, and thus parents were not liable for son's assault upon another child.”). Once the propensity or foreseeability is established, whether a parent meet the standard is a question of fact decided by jury. “In an action for negligence the jury determines, in any case in which different conclusions may be reached on the issue:...(b) whether the defendant has conformed to the standard of conduct required by the law...” Restatement (Second) of Torts section 328C (1965)

In conclusion, a plaintiff seeks for compensation have to prove the minor’s intent or negligence under a standard complies with his or her age, capacity, and experience. Then the plaintiff must prove the proximate cause and the damage. After establishing minor’s liability, plaintiff must show parents’ duty by proving the minor’s propensity toward tortious conduct and parents’ knowledge of it. The breach of duty and proximate cause need to be proved by plaintiff, too.

Whereas, Chinese laws adopted a doctrine that emphatically involves parents into children’s misconducts.

“Article 12 A minor aged 10 or over shall be a person with limited capacity for civil conduct...A minor under the age of 10 shall be a person having no capacity for civil conduct.”Minfatongze(民法通则)[General Principle of the Civil Law ](promulgated by the Standing Comm. Nat’l People’s Cong., Apr. 12, 1986, effective January 1, 1987)(China).

Article 7 One who shall assume the tort liability for infringing upon a civil right or interest of another person, whether at fault or not, as provided for by law, shall be subject to such legal provisions

Article 32 Where a person without civil conduct capacity or with limited civil conduct capacity causes any harm to another person, the guardian shall assume the tort liability. If the guardian has fulfilled his guardian duties, his tort liability may be mitigated. 

Where a person without civil conduct capacity or with limited civil conduct capacity, who has property, causes any harm to another person, the compensations shall be paid out of his own property. The guardian shall make up any deficit of the compensations.

Qingquanzeren Fa(侵权责任法)[Torts Law](promulgated by the Standing Comm. Nat’l People’s Cong., Dec. 26, 2009, effective July 1, 2010)(China).

According to Chinese laws, minors’ parents will be imposed a non-fault based strict liability for minors’ misconduct, and to guarantee the compensation, minors or parents, whoever have property, can be the object of enforcement. A plaintiff who brings an action against parents of a minor has much less burden of proof in China. All that plaintiff have to prove is the proximate cause. A plaintiff does not need to prove minor’s fault. It bypasses the difficulty of establishing a standard of care for minors. And due to the assumption of liability, a plaintiff does not need to prove parents’ negligence, either. In another word, as long as a plaintiff can prove that a minor committed a tortious conduct and the damage, he or she can be relieved, unless the defendant proves that the proximate cause dose not exist.

Parents are treated contrarily under New York and Chinese torts law, which reflects the different propensities of those laws. Both laws are struggling for the perfect balance between two parties, however, the fact is that the law have to draw the line so that it can be predictable and stable. The New York torts law forbids to impose liability upon innocent parents, and the Chinese torts impose liability to any parents whose children committed a misconduct, regarding the fault as a mitigating factor instead of a basic element. The legislatures of both counties are pursuing the justice under different moral values.

2. Reasons of diversity

There is no doubt that both Chinese and New York legislatures share a same goal of protecting innocent parties when promulgating the torts law. However, they approaches this goal in contrary ways. New York way is to eliminate the interference from the law while Chinese way is to exercise puissant regulation over it. As an old saying, all roads lead to Rome, those two ways are not necessarily mutual exclusive. The characteristics contribute to the diversity are historic, cultural and social.

A. Familism and individualism

Familism is a traditional ideology of China. As most east Asian countries, China is a agricultural civilization. The self-sufficiency economic structure bond Chinese people to their land which used to be farmed by ones father and grandfather. In ancient China, family, instead of individual, is the basic units of society. Chinese people think that leaving a family is a dishonorable behavior, and family members should stay together, supporting and being responsible for each other. The minors in a family has the obligation to obey the older. The relationship between children and parents are generally master-servant relationship, just under the name of filial piety. Meanwhile, parents should take the responsibility of shaping their children. In a agricultural civilization, the children spends most of the time with their parents and they are mostly influenced by the parents. Therefore, parents are determinant factors to the way children become. Such a tradition still has it influence today. Chinese people still think that the minors’ misconducts should be blamed to their parents’ poor family education and their parents should be responsible for that. They also believe that minors’ certain misconduct conduct is a result of accumulation of inappropriate influence from their parents. So whether parents excise reasonable supervision at the point when tortious conduct committed dose not matter, since the fact that minors misconducted is sufficient to reflects parents’ negligence.

On the other side, the sensitive awareness of unexpected mishap makes Chinese people willing to eliminate any hidden troubles when they can. And clearly, a uncompensated damage caused by their children is one of those dangers. Since the children are seen as the future of a family, parents want them to live their lives without burden, such as an unpaid debt owned to others or hostile from the victim.

Apparently, using the old-fashion way to guide the modern legislature is inappropriate. The strong emotional bound between family members changes into the propensity of over protecting and spoiling. The Chinese children receive more care from parents than any time in the history while undertaking least responsibility. The minors who committed the tort won’t be held liable, and the parents who held liable didn’t do anything illegal, so both of them can find plausible deniability and neither will learn to be responsible.

America is a young nation, which means it has late-starting advantage and less obstruction of industrial evolution. The industrialization proceeded rapidly in America, especially after the civil war which free the slaves and provide vest consume market and labors. The mechanization of agriculture freed people from land and provide solid bedrock for development of second and third industry. The westward movement cultivated Americans spirit of adventure. Stimulated by great chances provided by high speed developing economy, Americans are enthusiastic to get independent and pursue their own lives. Synchronously, the bond of family is diluted. The spirit of independence and adventure passed on generation to generation, and the America parents attaches great importance to passing on such virtue to their children. And the law show enough respect in terms to family affair, especially to parents. It shield parents from suits brought by children and third party. “Considering, inter alia, the wide range of discretion a parent ought to have in permitting his child to undertake responsibility and to gain independence, there is no cause of action in child against parent for negligent supervision.” Holodook v Spencer, 36 N.Y.2d 35, “Parent is not liable, merely because of relationship, for torts of child.” Steinberg v Cauchois, 293 N.Y.S. 147. It’s surely helpful to avoid the situation where children are spoiled and harbored, however, it also transfer the risk to the society as large.

What’s more, with advanced development of economy and less pressure of life, the ancestor’s spirit metamorphosis to individualism and hedonism. The independence becomes self-interest and adventure becomes a method to seek excitement. In this circumstance, people fully enjoy the rights guaranteed by law while refusing it’s regulation. The confidence of self-government reaches every corner of their life and it makes law appear to unnecessary. Under such circumstance, parents use the law as excuse to evade their responsibility to supervise their children appropriately. The court used to hold that “the mutual obligations of the parent-child relation derive their strength and vitality from such forces as natural instinct, love and morality, and not from the essentially negative compulsions of the law's directives and sanctions.” Holodook v Spencer, 36 N.Y.2d 35. Love given by the parents has never changed, however, the moral restrain has been weaken without “negative compulsions of the law's directives and sanctions”, American parents are just spoiling their children in a different way from Chinese parents. They indulge their children, being passive to exercise sufficient regulation over children’s behavior, and all these can be justified under the name of “undertaking responsibility and to gain independence”. By doing so, apathetic parents put the whole society, including their own children, under a risk created by themselves.

B. The history of legal system

Chinese Torts Law is a new born law. Actually, the whole Chinese legal system is immature. Chinese private laws fall quite behind the world and the whole legal system basically relies on transplantation of law. One can easily find the trace of German civil law in Chinese Torts Law and Property Law, and Chinese Contract Law referred to the CISG a lot. Even the Criminal Law was consulting the criminal law of Soviet Union, in which one can find much ideology of communism. To China codification is a choice without alternative. When the People Republic of China was struggling with its first constitution, most countries had practiced relatively mature legal systems for hundreds of years. China does not have time to build up a system consisted by millions of cases and modify it over years of practicing. Trying hard as it is, Chinese legal system still have lots of gaps in the law. Statutes can not specify every factors of the law, judges’ discretionary power is determinant in terms to torts, especially when there is no jury trial. The minor liability is a thorny part. If Chinese Torts Law is applying New York way or vicarious liability like German torts law did, the question can not be bypassed is the standard of care for children. Such standard can only established by experience, since unlike adult prudent person standard, it’s varies with multiple factors, including age. And other countries rule is helpless because of the differences of education, social circumstance and other customs. Basically, Chinese legal system can not afford a designed standard for minors, and maybe the strict liability is still the most suitable way to China now.

American legal system has a long history. When it was a colony of Britain, the British law had been prevalent. And the word “torts” itself as a legal concept first appeared in 1580s. The recognization of civil wrongdoings can even traced back to Roman Law. With such sufficient theoretical development and accumulation of precedence, America inherit a relatively complete torts law system. And after the independence, such system has functioned for more than two hundred years. The most important thing is, in America, the history of law is continuous. The American have a more open mind about the heritage of their former suzerain and are willing to lean from it. As a new born country without the burden of history, America do not have to deny its past. And since there is no ideological conflict, it do not have any political obstacle in adopting “imperialistic” law.

3. Flaws of laws

A. New York Torts Law

The New York system is self-consistent, the imperfection is more from the practical point of views. To a plaintiff, a judgment is not the end of justice, the enforcement of the judgment is. The cost of respecting the minors’ individuality is ignorance of a fatal fact that a minor has no property in most circumstance, so the compensation is unavailable. In another word, the plaintiff can never get the justice he or she deserves. Therefore, to insure the redress, an injured party must bear the additional burden of proof to impose liability to the parents. Even if the plaintiff succeeds in proving that the parent’s is liable, unlike vicarious liability or strict liability, portion of liability on each co-defendant is still pending. The involvement of parents never changes the essential of several liability, therefore the compensation remains incomplete. And such incompleteness is not a result of insufficient evidence or any other factors which can be solved in a court room. The only reason is that the minors have no asset, despite of the wealthiness of their parents.

The influence of this system also extends beyond the court rooms. It affects every parents and their children. Being shielded by the high standard of proof, parents’ motivation of interfering their children is simultaneously weakened. On the one hand, it means that minors will enjoy more freedom and grow up without much restriction, meanwhile parents need not to be surrounded by the apprehension of being sued. On the other hand, it also means that parents and their children have to face some minors who has a unknown propensity to dangerous conduct. The thorough protection provided by law is a double-edged sword, since the law provides such protection by retreating from this area and refusing to impose any external motivation on parents. It choose to trust the school education, parent’s custody and minors’ subjective initiative.

In conclusion, the New York torts law has the appearance of justice. It admits the capacity of minors to committed torts. It established the standard of conduct of minors. However, it confines the parental liability in certain situations, inter alia, “where the parent's negligence consists entirely of his failure reasonably to restrain the child from vicious conduct imperilling others, when the parent has knowledge of the child's propensity toward such conduct.” Steinberg v Cauchois, 293, N.Y.S. 147. It gives minors equality with respect to imposing liability, but failed to recognize the particularity of them.

B. Chinese Torts Law

Chinese Torts Law left little leeway to minor tortfeasors’ parents. The parents and minors are bearing several and jointly liability. It is quite clear that Chinese Tort Law is trying to provide most protection to an innocent third party. Applying such a extreme way, the Chinese Torts Law is subjected to queries in many ways. Even the approvers of the strict liability doctrine see the statute as atypical. They think the mitigation factor is vestige. Parents who exercised reasonable care means they have no fault, but it should not matter in a strict liability. The purpose of strict liability is to impose liability upon party with no fault, so that impelling certain party to exercise extra care. It is illogical for a party to mitigate liability by proving that there is no fault. Besides, the vagueness of this statute is attacked, too. China as a civil law country does not treat cases as a formal source of law, thus the only law is the statutes and interpretation of law published by the China Supreme Court. A statute merely stating that parents with no fault can mitigate their liability is more like a principle of law but not a statute. In practicing, the portion of mitigated liability is all under judge’s discretion. However, the judgments or precedents made by judges are neither binding or persuasive, which makes the problem unsolved, undermining the stability of the law. It also shows a dangerous tendency of giving judges plenary power over such kind of case, since the final outcome, the amount of compensation, is decided by judges instead of law itself. Another aspect of this statute criticized most is that the minor’s property, if there is any, should be paid to redress the damage. The basic reason of applying strict liability to parents is that minors are with no or limited capacity for civil conduct. In torts law, it means that they are incapable to commit torts, and that’s why the plaintiff does not need to prove minor’s intent or negligence. So according to Chinese Torts Law, only parents will bear the liability. Then there is no legal base for enforcing the minor’s property, since it’s strict liability while not vicarious liability, and the minors and their are not co-defendants. Chinese torts law goes too far on the way to reach the deep pocket. And in practicing, the statute is redundancy, too. Since in most situation, the deep pocket is the parents. Besides, the priority of the enforcement toward minor’s property is illogical, too. Despite of the inherent inconsistency, there are debates about whether or not strict liability should be applied to such issue. There is a growing body of opinion that the strict liability is too harsh to both parents and minors. Children are not defective product, wild animals or inherently dangerous venture. As mentioned above, strict liability is to encourage extra care, because the consequence of certain negligence is more catastrophic than normal one. Obviously, damage caused by a minor can hardly compare with that caused by a tank of explosive chemical. In fact, it barely as serious as the damage of adults’ negligence. The only plausible reason is that minors have more possibility to commit a tortious conduct, but it is still insufficient to equalize the inherent danger between a minor and other subject matters of strict liability.

4. Possible ways to improve

A. The standard of care for minors

In terms to the standard of care for minors, New York and Chinese torts laws represent two polar ways. The New York Torts Law requires the court to decide it by the age, capability and experience. By applying those parameters, it is unlikely to establish an average standard which can be applied to a certain group of minors. This measure is actually demanding the court to review every minor defendant individually. Except the age, other two factors are subjective and abstract, which requires more investigation towards more objective information to decide. And those three factors can not considered separately since they are mutually affecting each other. The chaotic system consisted by those three factors shows a great uncertainty and instability. Besides, it will reduce the efficiency of trial and cause waste of judicial resource.

The Chinese Torts Law avoid similar conundrum by applying strict liability. However, as discussed above, the limited inherent danger of a minor abated the necessity of the application of strict liability. The strict liability can should be treated as a expedient way, compromising to the fact that Chinese legal system lacks sufficient experience to establish a reasonable standard for minors. After all, compared to the other situation strict liability applied, minors at least deserve more chance to defend himself.

Either New York or China should develop an average standard of care for minors. The standard should only be decided by average capability at certain age. The capability should decided by either county’s own reality, such as average education level, average intelligence development, etc. Accordingly, the establishment of such average standard requires interdepartmental cooperation involving educationalist, biologist or psychologist. Once the standard is established, the departure of some minor’s capability or other factors from the average level at his or her age and the relatively unfair outcome for that minor should be considered as the reasonable sacrifice of ones characteristic to maintain the stability of the whole society. The judicial department always needs to find the balance between efficiency and justice.

B. Burden of proof

According to Chinese Torts Law, in situation where strict liability applied, the burden of proof is beard by the defendant, if the defendant can not disprove the proximate cause, he must be liable. The New York Torts Law impose the heaviest burden of proof on plaintiff, the plaintiff must show all the elements of minor’s tort and parents’ negligence. This allocation of burden of proof bars most plaintiff from being compensated. Since to a plaintiff who is not a member of the minor’s family, it is too hard for him to collect evidence that can prove the parents’ negligence, especially to prove the minor’s propensity towards a dangerous conduct. In situation where neither party has no sufficient evidence, the party bears burden of proof must assume the result of losing the suit. Considering the parental relationship, the parents should prove that they are not negligence and the plaintiff only need to prove the minor’s intent or negligence. The shift of burden of proof is similar to the res ipsa loquitur doctrine, where (a) the event is of a kind which ordinarily does not occur in the absence of negligence; (b) other responsible causes, including the conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence; and (c) the indicated negligence is within the scope of the defendant's duty to the plaintiff. Restatement (Second) of Torts section 328D. Once the plaintiff established the tort committed by the minor, that tort itself is sufficient enough to assume that the parents are liable. And it’s safe to say that without negligent supervision, a minor dose not ordinarily injure a third person. However, the third element of res ipsa loquitur can not be established in a minor’s tort case. Because to prove the negligence is within the scope of the defendant’s duty, plaintiff have to prove the existence of duty, which requires evidence shows the foreseeability. Thus the plaintiff have to go back to the original point where a knowledge of dangerous propensity has to be proved. Therefore, a new rule of evidence need to be established to less the plaintiff’s burden of proof. The parental relationship is insufficient to generate a parental liability, but may be it is sufficient to shift the burden of proof.

C.Vicarious liability

Both New York and Chinese should adopt the vicarious liability concerning minor’s liability. New York Torts Law only impose vicarious liability to parents where a master-servant relationship exists between the minor and parents. While Chinese Torts Law applies the unnecessarily harsh strict liability. Vicarious liability is a secondary non-fault liability, it is a balance point between two extremes. Compared to the New York completely fault-based system, it can guarantee the compensation to the plaintiff and relief the plaintiff from extra burden of proof. As to China, once its legal system can establish a reasonable standard of care for minors, by adopting the vicarious liability, it will solve the inconsistent of the Article 32 of Chinese Torts Law. The vicarious liability is based on the control theory. Compared to a master-servant relationship, a parental relationship implies more control over the children from parents, thus, the application of vicarious liability dose not need a analogous master-servant relationship. Parents’ control over their children should be recognized in a large scope. Such control dose not have to be embodied in a form of orders to some specific behaviors. Unlike servants or employees who have work hour, the minors live with their parents all the time and influenced by them. Due to the family ties, minors spontaneously follow their parents. The control from parents over a minor is continuous. Therefore, applying vicarious liability to parents is reasonable.

After establishing the controlling relationship, the plaintiff must prove that the minor is negligent, than the liability will be imposed upon parents without proving their fault. To New York plaintiffs, they will have much less burden of proof and much more chance to win the case. To Chinese defendants, they will have a chance to defense themselves and avoid undue liability.

The most important part is, the vicarious liability is several and joint liability, so the plaintiff can get the full amount of compensation from the minor’s parents. It also consist with the Chinese Torts Rule that if the minors have property, the payment should made by the minors.

5. Conclusion

Law as a social science is invented by people. Unlike psychical rules discovered by people, law can be various and changeable. The differences of torts law in New York and Chinese actually reflect the different ways in which people think. And the defects of those laws show the limitation of people’s thoughts. The law is destined to be imperfect, since value standard of the majority changes. The development of other department of society will influence the law, too. When the first time Berne convention was signed in 1886, nobody can predicts the invention of Internet and how much it can impact the convention. The law always lags, it’s trying to chase an absolute justice while the definition of justice changes by time. The purpose of torts law is to balance the rights and obligation. And unlike contract area, those rights and obligations are based on the nature law theory of legislatures’ understanding of it, instead of agreements between certain people. It means that the legislature decides what kind of rights or obligations a person should have. Natural and legal as the rights are, they must be recognized and interpreted by mortal people.