As discussed in my last article, many states hold parents/guardians civilly liable for theft from retailers by minors (i.e., "civil recovery liability"). While many states' statutes may promote parental responsibility by holding parents/guardians civilly liable for not exercising effective control over their minor children, not all states do.¹ Instead, some states have created statutes that provide a defense to the parents/guardians of the minor child for the purpose of limiting parent/guardian liability. States such as Mississippi, North Carolina, South Carolina, Utah and North Dakota all provide defenses that can essentially excuse the parents/guardians from civil recovery liability.

Subsection (3) of Mississippi's civil recovery statute allows for parental liability when it is proven that the parents/guardians had knowledge of the minor's intent or when it is proven that the parents/guardians aided and abetted the minor in such violations. This does not mean that a retailer must prove that the parents/guardians were directly or indirectly involved with the minor in the retail theft prior to making a request for civil recovery damages. In instances where a retailer retains a civil recovery law firm to make a request for damages on its behalf, "An advocate... is usually not required to have personal knowledge of matters asserted therein, for litigation documents ordinarily present assertions by the client, or by someone on the client's behalf, and not assertions by the lawyer."² Further, nowhere within the plain language of the statute is there a requirement for the injured retailer to perform the research to make a determination as to whether the parents/guardians had knowledge of the minor's intent and/or aided and abetted the minor. Instead, subsection (2) strengthens the position that a retailer is not required to perform such research because Mississippi's civil recovery statute merely requires a written demand be made to the person or accused liable for damages prior to the filing of an action for damages.

North Carolina limits parent/guardian liability to those who knew or should have known of the minor's propensity to commit a larceny and made no reasonable effort to correct or restrain the child. South Carolina is similar in that it holds parents/guardians civilly liable if the parents/guardians knew or should have known of the minor's propensity to steal. While North and South Carolina may provide a strong defense to parent/guardian liability under each states' respective civil recovery statute, it does not necessarily give the parents/guardians an automatic "out." Nowhere in these specific statutes does it preclude a retailer from making a request for civil recovery damages. Instead it merely provides the parents/guardians with a defense that may be raised after receipt of a civil recovery letter or may be raised in court in the event that a civil suit is filed against them. While a retailer may therefore make a statutory civil demand, if the parents/guardians raise such a defense, unless the retailer has evidence to overcome the defense, the retailer may consider dropping its civil damages request.

Utah limits parent/guardian liability to those who make a reasonable effort to restrain the minor child from wrongfully taking merchandise or who report the minor's intentions to the merchant involved or to local law enforcement. While parents/guardians may attempt to utilize such a defense, such defense can often be defeated because in most instances where the apprehended shoplifter is a minor, the parents/guardians are typically not present to properly supervise the minor child in the store. Had the parents/guardians been present or properly supervising the minor child, the child would not likely have shoplifted other than the sad situation when parents/guardians encourage their minor children to steal. Lastly, if the parents/guardians of the minor child had later discovered the wrongful taking of the merchandise by the child, such parents/guardians should not be absolved of any civil liability unless the parents/guardians took steps to promptly report the wrongful taking to the merchant or to local law enforcement.

North Dakota excuses parents/guardians from liability if it is determined by the court that one of the primary reasons that the minor chose to shoplift was to cause the parents/guardians to be liable for the resulting civil recovery damages. It seems that it would be rare for a child to steal in an attempt to cause financial hardship to his or her parents/guardians and may be difficult for those parents/guardians to prove.

By understanding the potential limitations on a retailer's rights, a retailer will be more aware of and potentially better equipped to defeat defenses that may arise from parents/guardians whether in response to civil settlement offers or the filing of civil recovery lawsuits.

1. See Curry v. Superior Court, 20 Cal. App. 4th 180, 187–188, 24 Cal. Rptr. 2d 495 (1993)

2. Comment Section of Rule 3.3 of the Mississippi Rules of Professional Conduct