When thinking of being potentially held liable for your child’s actions outside of an auto accident, parents tend to think of some of the traditional situations: negligently entrusting a child with an item or activity that harms someone else, or failing to control a child which in turn leads to injury. In both situations, in Wisconsin, the parent can be treated as a joint tortfeasor with their child. Often referred to as the “tort of negligent control,” the latter situation recognizes “a parent’s responsibility to exercise reasonable care to control his or her child in order to prevent harm to others.” Nieuwendorp v. Am. Fam. Ins. Co.
Perhaps unsurprisingly, the advent of social media has caused some parents, and now some courts, to think of parental liability beyond the traditional situations. Last fall, the Georgia Court of Appeals, in Boston v. Athearn, held that whether parents were negligent in their supervision and control of their son’s Facebook use was a viable claim that could go forward to the jury. While not binding on Wisconsin courts, the decision nevertheless provides insight into the changing landscape of parental liability.
In the Boston case, 13-year-old Dustin Athearn and a friend decided to “have some fun” at a classmate’s expense. Using a computer supplied by his parents and using the family internet account, Dustin posed as the classmate and created a new Facebook account in her name. In addition to manufacturing an unflattering profile photo of the classmate, Dustin added postings that were sexual and racist and falsely stated that the classmate had mental health issues and used drugs.
Dustin was soon discovered as the culprit, and the principal disciplined him and informed Dustin’s parents. While Dustin’s parents also disciplined him for the incident, the unauthorized profile and page remained accessible for another 11 months until Facebook deactivated the account. By this point, the classmate and her parents filed suit against Dustin and Dustin’s parents for libel.
Under Georgia law, parents “may be held directly liable for their own negligence in failing to supervise or control their child with regard to conduct which poses an unreasonable risk of harming others.” After the claims against the parents were dismissed at the trial court level, the court of appeals reversed, agreeing with the aggrieved classmate, concluding that when the circumstances support an inference that the parents were on notice that, but for their intervention, injury was likely to result from the child’s conduct, the issue should survive summary judgment dismissal and go to the jury.
The Boston court was not persuaded by the defendant parents’ argument that they could not be liable because they had no reason to anticipate their son would engage in this behavior, and after the school informed them of the behavior, they disciplined Dustin. According to the court, Dustin’s parents continued to be responsible for supervising Dustin’s use of the computer and internet after learning that he had created the unauthorized Facebook profile. Because the false and offensive statements remained for 11 months after learning of Dustin’s misconduct, the court concluded that a jury could find that the parents failed to exercise due care in supervising and controlling such activity going forward.
While there does not appear to be published Wisconsin case law addressing a parent’s failure to control his or her child’s Facebook use as addressed in Boston v. Athearn, the Wisconsin Supreme Court’s dicta in its 1995 Nieuwendorp decision illustrates that Wisconsin tort law on parental responsibility can meet societal and generational changes:
“Across this state, increasing numbers of students have been identified as exhibiting emotional and behavioral problems which significantly interfere with their academic progress. Some of those students engage in disruptive or violent conduct. As a result, teachers, administrators and staff now face problems and dangers in the classroom unheard of a generation ago…A decision by this court will, therefore, help develop the law on that issue.” Id.
It may be only a matter of time before a Wisconsin court helps develop the law on the issue addressed in Boston v. Athearn for Wisconsin parents.