The Tortious Capacity of Minors in Civil Law

The tortious capacity of minors has recently been at the centre of attention of both professional and lay public, particularly from the criminal law perspective, in connection with the preparation of the new Criminal Code. The lowering of the age limit of criminal liability from fifteen years to fourteen years was one of the most debated changes throughout the entire discussion of the new Criminal Code. Professional debates and polemics on this issue were conducted not only during the entire preparation of the new codification, but also after its adoption, when the reduced limit of criminal liability actually appeared in the new Criminal Code for a short time. The aim of lowering the age limit was to enable more effective punishment of child offenders. Many critics, especially from among doctors and educationalists, opposed the lowering of the age limit, pointing out the negative side-effect of reducing criminal liability, namely the shifting of the legal commencement of sexual life. On 7 August 2009, the Chamber of Deputies approved an amendment to the as yet ineffective Criminal Code, which returned criminal liability to the limit of fifteen years of age.

For this reason, I consider it beneficial to focus in this article on the civil law aspect, which, in my opinion, unlike the “juvenile minor” in criminal proceedings, remains somewhat on the sidelines. The capacity for legal acts, that is, the capacity of a natural person to bring about intended legal consequences by his or her conduct or omission, arises gradually according to his or her state of maturity. It arises in full scope upon attaining majority. Majority is attained upon reaching eighteen years of age, before reaching eighteen years of age also by entering into marriage by a person over sixteen years of age. Majority thus acquired is acquired once and for all, and in the event of divorce of this marriage, the “person who has attained majority” no longer loses it. In the event that a minor lacks capacity for legal acts, his or her legal representatives, most often parents, act on his or her behalf. Nevertheless, according to the Family Act (zákon o rodině), a minor has capacity for certain legal acts directly under the law, for example, to enter into marriage with the permission of a court or, as a parent, to make a consensual declaration concerning the determination of paternity. A minor over fifteen years of age expressly has capacity to execute a will, but from the point of view of enhanced protection, he or she may do so only in the form of a notarial deed. An interesting situation arises in the case of a minor girl under sixteen years of age, who may terminate a pregnancy upon request only with the consent of her parents. If, on the other hand, artificial termination of pregnancy of this girl were to occur for health reasons, only the consent of the minor girl is required, whilst the consent of the parents as legal representatives is no longer necessary.

Every person who has unlawful capacity, so-called tortious capacity, is legally liable. Tortious capacity is possessed by all legal persons and those natural persons whose mental abilities (determined in particular by age) and momentary mental state (sanity) permit the natural person to recognise the unlawfulness (harmfulness) of his or her conduct and to control it. Just as gradually as a minor’s capacity for legal acts arises and develops, so too does his or her tortious capacity arise and develop. In the case of persons of full age who have not been deprived of capacity for legal acts, tortious capacity is presumed, that is, it is deemed proven until the contrary is proved. Tortious capacity thus rests on each person’s abilities to recognise the consequences of his or her conduct (intellectual maturity) and to control it (volitional maturity). Like capacity for legal acts, tortious capacity arises in full scope upon attaining majority, provided that the natural person does not suffer from a mental disorder that would exclude the recognitive and controlling components. Before attaining majority, tortious capacity is assessed individually with regard to the specific legal act, irrespective of age or mental disorder, according to whether the minor was capable of recognising the consequences of the conduct and controlling it. Lack of tortious capacity always excludes general liability; in the case of strict liability, it depends on the circumstances of its arising.

For liability for damage caused by minors, the Civil Code (občanský zákoník) contains special regulation in the provision of Section 422(1), according to which a minor is liable for damage caused by him or her if he or she is capable of controlling his or her conduct and assessing its consequences. The scope of tortious capacity of a minor person is therefore (as in the case of capacity for legal acts) assessed ad hoc with regard to the circumstances of the individual case. Under the conditions regulated in Section 422(1) of the Civil Code, the person who was obliged to exercise supervision over the minor is liable jointly and severally with the minor, or independently instead of the minor.

In the case of liability of minor individuals, no specific age limit is set within the age range from birth to eighteen years from which they would be exclusively themselves (albeit even only partially) liable for damage caused. It is therefore always necessary to consider in the specific case whether the minor who caused the damage had tortious capacity, that is, whether he or she could assess the consequences of his or her conduct and also control his or her conduct. Both these prerequisites must be fulfilled simultaneously and fully. If, in certain conduct of a minor, the intellectual or volitional component is missing, the minor is not liable for the damage, on the grounds of absence of fault. Assessment of this question will depend on the circumstances of the specific case, that is, both on the specific state of intellectual and volitional maturity and the age of the tortfeasor, and on the specific situation in which the causing of the damage occurred. The liability of a minor will always be assessed from his or her subjective point of view; in possible court proceedings, it will generally be necessary, in order to evaluate the intellectual maturity and degree of controlling abilities of the minor, to call in an expert in the relevant field to subject the minor to expert assessment. In practice, in addition to expert opinions, specialist statements from healthcare facilities are sometimes applied.

Natural persons who have an obligation to exercise supervision over a minor are, first and foremost, in particular his or her parents. Furthermore, according to the Family Act, these are also adoptive parents, another person to whom a child has been entrusted for upbringing, a guardian, or foster parents. In the case of some persons, therefore, the person determined by law will be liable for the conduct of minors, at other times a person determined by a final decision of a court or on the basis of another legal fact (a minor goes on holiday to relatives who take over proper supervision of the minor from the parents).

Parents have an obligation to bring up and care for their child, to guide his or her conduct, and to supervise him or her. Both parents have this obligation even in a situation where the child has been entrusted to the upbringing of only one of them; in such a case, however, according to the circumstances of the specific case, the parent who has the child in his or her care would more likely be liable for damage. The liability of parents lapses, in particular, where they have been deprived of parental responsibility pursuant to the Family Act.

In addition to natural persons, a legal person obliged to exercise supervision over a minor may also be affected by liability for damage. In the case of a legal person, its employee (for example, a teacher) who was directly entrusted with supervision is not directly liable for the conduct of the minor, because the legal person (school) is in the liability relationship. This does not, however, affect the employee’s employment law liability towards the employer. A school is liable not only for damage that a pupil causes during a lesson, but also for damage that a pupil causes during a break. In this way, for example, school clubs, kindergartens, crèches, boarding schools, youth homes, institutions for the execution of institutional education or protective education, diagnostic institutes, psychiatric healthcare facilities, children’s departments of hospitals, or institutions of social care for youth may also be liable for damage.

The law does not directly specify the concept of “proper supervision”. Established case law has determined that, within the meaning of the provision of Section 422(2) of the Civil Code, it is not possible to understand by such supervision a supervision that would, under normal circumstances, be exercised by persons obliged to supervise constantly, continuously, and immediately, because in such a case, the possibility of exemption from liability of these persons envisaged by law would be practically excluded. In considering whether persons obliged to supervise have not neglected proper supervision, it is necessary to have regard also to certain circumstances concerning the person subject to supervision, such as his or her age, character traits, and overall conduct of the child. Judicial practice has concluded that effective supervision over minors is not only a prohibition of certain defective conduct in a situation where it has already occurred, but also the overall educational environment and influence on the child.

The provision of Section 422 of the Civil Code regulates four different alternatives of persons liable for damage caused. It is necessary to distinguish cases of liability for damage in which the following will be liable for the damage: (i) the minor exclusively alone, or (ii) jointly and severally with the minor, the person who was obliged to exercise supervision over him or her, or (iii) exclusively the person obliged to supervise, or (iv) no one (such a situation may also arise, and in such a case the injured party will bear the damage himself or herself).

A minor will be liable for damage exclusively alone if, at the moment of the arising of the damage, the intellectual and volitional components are present in the minor, and the person exercising supervision over the minor has not neglected anything. A minor child will be liable for damage caused only if, by his or her conduct, he or she also fulfils the other general prerequisites of liability for damage, that is, the conduct of the minor, the damage arising as a consequence of this his or her conduct, the causal connection between the conduct and the consequence, and fault (it is, however, for the tortfeasor to prove that he or she did not cause the damage by fault (Section 420(3) of the Civil Code)).

1. A sixteen-year-old boy in his free time on his way from school passes an abandoned farm building, whereupon he immediately becomes convinced that this place is an ideal refuge for his first experience with marijuana. For fear of being discovered, he seeks out the premises of a former hayloft with still a large amount of hay stored, which will provide him with sufficient comfort. Under the influence of emotions, absorbed in a new adventure associated with the first drag on a “joint” that he obtained at school, the minor does not fully realise that he insufficiently extinguishes the match with which he lit the marijuana cigarette and throws it freely into the space. Within a few moments, the hayloft is in flames. The minor is satisfied, in particular, that by his presence of mind in fleeing from the building, he saved his bare life. By the time the fire and rescue service arrives, almost the entire farm building has burnt down, and damage in the amount of seven hundred and fifty thousand Czech crowns has been caused to the injured party.

In this case, the minor would probably be fully liable for the damage, because his intellectual maturity was already at such a level that he sufficiently realised the consequences of his conduct and controlled his conduct. Given that the minor had until then been an unproblematic secondary school student, to date without any misdemeanours in conduct, the parents probably did not neglect proper supervision.

In the case of damage caused by a minor child, the Civil Code presumes that the person obliged to exercise supervision over this minor child caused this damage by fault. However, the person exercising supervision cannot bear liability for everything, and will be exempted from such liability if he or she proves that he or she did not neglect proper supervision. In this situation, the burden of proof rests precisely on the person exercising supervision, when it is for him or her to prove that he or she did not neglect proper supervision. In such a case, observance of the ordinary care of another person in a similar situation will probably be decisive.

For better understanding of the issue of liability for damage caused by minor persons, I shall give several practical examples deriving from the decision-making practice of general courts, with whose conclusions, especially in points 2) and 3) of this article, not everyone will probably fully identify:

2. A fifteen-year-old minor, a very problematic child in terms of discipline, was shooting with an air rifle in the afternoon from the window of his flat on a housing estate where he lived with his parents. Although he was warned by an adult passer-by of the inappropriateness and dangerousness of his conduct, he did not stop. Shortly afterwards, he hit another random pedestrian in the right eye with a pellet, thereby causing him serious damage to the eye with permanent consequences. The parents of the minor were not in the flat at the time of the shooting and did not know that at that time their son had at his disposal, in addition to an older non-functional air rifle, also an air rifle capable of shooting, which the minor had borrowed from a friend fourteen days earlier and was hiding it in the flat under the bed.

In this case assessed by the Supreme Court, the fifteen-year-old minor who caused the damage to health is fully liable, because at his age he should already have been fully capable of controlling and assessing the consequences of his conduct. Together with the minor, the parents of the minor should also be liable jointly and severally for the damage caused, because they neglected proper supervision over the minor. In a situation where the fifteen-year-old minor shows disciplinary problems and his conduct at school requires constant supervision and control so that offences do not occur, proper supervision by the parents also consists in increased interest in his conduct, interests, and hobbies, in his activity in his free time, and in overall educational influence, so that shortcomings in his conduct are eliminated and his defective conduct is prevented. Effective supervision over a minor therefore does not mean only immediate prevention or prohibition of certain harmful conduct when it has already occurred, but also the overall approach of the parents to the hitherto upbringing of the minor and their educational influence to ensure that defective conduct of the minor does not occur. Given that the minor had already committed offences at school and had a tendency to lie, it is clear that precisely with regard to his characteristics and tendencies and to his hitherto conduct, the minor required a higher degree of supervision, control, and educational guidance from the parents, especially when they knew of his interest in the rifle, albeit non-functional, and knew that he had it in his possession. The circumstance that in a week or two they did not discover that their son had obtained a functional weapon from a friend, and that they did not assume that he would want to harm someone’s health, is not a circumstance testifying that they had sufficient overview of his conduct and that they effectively ensured supervision over him and took educational measures so that his conduct did not deviate from acceptable limits. In this connection, it cannot be overlooked that even the immediate admonition of an adult was not sufficient for him to cease shooting. The Supreme Court therefore reached the conclusion that the parents did not prove that they had not neglected supervision over the minor and recognised them as jointly liable, jointly and severally with their son, for the damage caused.

3. A seventeen-year-old minor, during the absence of his parents, who were at work, found at home the keys to their motor car. He conceived the idea of showing off his driving skills to his classmates from school and drove the vehicle in question to school, although he did not have a driving licence. Whilst driving the vehicle, he caused a traffic accident, causing damage to another vehicle with which he collided in the amount of one hundred thousand Czech crowns.

In this case, again assessed by the Supreme Court, the court likewise took the view that this was a case of joint liability of the minor, who was capable of controlling his conduct and assessing its consequences, and his parents, who would be liable jointly and severally with the minor. The parents neglected the obligation to exercise supervision over the minor son and by their negligence enabled the son to seize the keys to the car and subsequently to use the vehicle on a public road. A parent of a child who did not assume that the minor could use the vehicle to drive, and who thus enabled the minor to have access to the vehicle by leaving the car and keys freely accessible to him during his absence, enabled the use of the means of transport by his negligence. The parents of the child, in addition to liability for damage pursuant to the provision of Section 422(1) of the Civil Code, will simultaneously also be liable for damage caused pursuant to the provision of the Civil Code concerning the operation of means of transport, according to which the person who enables the use of the means of transport by his negligence is also liable for damage jointly and severally with the tortfeasor. The subject of strict liability for damage caused by the operation of means of transport is, in principle, the operator of the means of transport, even if he himself was not driving at the moment of the arising of the damage. Only in the event that the means of transport was used without the knowledge or against the will of the operator is the person who used the means of transport in this way liable for the damage. According to the opinion of the Supreme Court, this principle is partially broken in favour of joint and several liability of the originator of the damage and the operator in cases where the operator enabled the abuse of his means of transport by his negligence.

In conclusion, the general preventive obligation of all persons cannot be omitted. Everyone is obliged to conduct himself or herself in such a way that damage to health, property, nature, and the environment does not occur. Every person must always take all measures to avert the arising of damage, in a manner commensurate with the circumstances of the situation. In specific disputes, the court subsequently assesses the degree of contributory fault also from this point of view. If there is a breach of this general preventive or intervention obligation to avert damage on the part of any person who did not conduct himself or herself in accordance with these principles, this may have negative consequences for this person in respect of the claim for compensation for damage, when he or she will be jointly liable for the damage that has arisen, or will even be liable exclusively alone.

This text was translated from Czech to English using an AI translator.