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Examining a novel issue to the Pennsylvania commonwealth’s appellate judiciary, the state’s Superior Court has ruled that a non-custodial parent has no duty to prevent his or her child from inflicting harm. The case involved an 11-year-old boy who was shot in the head with a 12-year-old boy’s air pistol. The victim’s parents sued the mother of the pistol owner. But the mother succeeded in eliminating her name from the suit because her son was in his father’s custody at the time of the accident. According to the three-judge panel in J.H. v. Pellak (Pa. Super. Dec. 6, 2000), since the child was not in the mother’s custody at the time of the accident, there was no way she could have had control over his actions. “Here, mother did not know about the air pistol and was unaware of the need to supervise the use of the air pistol. Also, since mother was in a non-custodial situation at the time of the incident, mother was not in a position to exercise control at the time of the incident,” Superior Court Judge Maureen Lally-Green wrote in the opinion. Lally-Green said the duty to exercise reasonable care to control a child must be limited. “It arises when a parent at the relevant time knows or should know of the need to exercise parental control and has the ability and opportunity to do so. Neither shared physical custody nor shared legal custody for a child changes that standard,” she said. The case originated in the Montgomery County Court of Common Pleas. DUTY TO CONTROL Lally-Green noted that although liability is not automatically imposed on the basis of the parent-child relationship alone, a parent may be held liable when his or her negligence facilitates an injury inflicted by a child. Case law and the Restatement of Torts (Second) Section 316 state that parents have a duty to control their children if they know or should know that they have the ability to control the children and know or should know of the necessity to exercise that control. But Lally-Green said the commonwealth’s appellate courts have never before considered what constitutes parental negligence when a custody situation puts a child out of the direct control of his or her parent. The Superior Court found decisions from the Arizona Court of Appeals and the Supreme Court of North Carolina that have addressed the issue. Those courts have found that non-custodial parents could not be held liable for sexual assaults committed by their children. Other jurisdictions have also considered Section 316, although not in the particular custody situation present in Pellak’s case, and focused on the foreseeability of harm. The Illinois Court of Appeals explained that position in Barth v. Massa, 558 N.E. 2d 528 (Ill. App. 1990). “Section 316 does not, after all, purport to make parents vicariously liable for raising careless or delinquent children, but instead imposes a duty on parents to exercise that control which they ‘in fact [have] at the time,’ ” the Illinois court said. “No parental liability exists without notice of a specific type of harmful conduct and an opportunity to interfere with it.” PENNSYLVANIA STANDARD The Pennsylvania Superior Court took a similar stance in J.H., setting forth the rule that under Section 316, a parent has a duty to control his or her minor child “when the parent knows or should know of the necessity to exercise control, and has the ability and the opportunity to exercise parental control at the relevant time.” In Pellak’s case, Lally-Green said there was no evidence that she knew or should have known about the air pistol or had the ability to control J.P. at the relevant time. “The record reveals that on March 12, 1995, 14 days before the incident, father had purchased a Crossman .177 caliber model 1377 American Classic air pistol for J.P. Mother did not know of the existence of the air pistol involved in the incident,” Lally-Green wrote. “Two guns were kept, used and maintained solely at father’s house; a previously purchased air rifle, and the air pistol involved in the March 26, 1995, incident. J.P. used the air pistol with the permission of his father on the date of the incident in question. J.H. was shot while J.P. was at father’s house.”

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