A. Any person may recover damages not to exceed four thousand dollars ($4,000) in a civil action in a court or tribunal of competent jurisdiction from the parent or guardian having custody and control of a child when the child has maliciously or willfully injured a person or damaged, destroyed or deprived use of property, real or personal, belonging to the person bringing the action.

B. Recovery of damages under this section is limited to the actual damages proved in the action, not to exceed four thousand dollars ($4,000) taxable court costs and, in the discretion of the court, reasonable attorney fees to be fixed by the court or tribunal.

C. Nothing contained in this section limits the discretion of the court to issue an order requiring damages or restitution to be paid by the child when the child has been found to be within the provisions of the Delinquency Act.

D. Nothing contained in this section shall be construed so as to impute liability to any foster parent.

History: 1978 Comp., § 32A-2-27, enacted by Laws 1993, ch. 77, § 56; 2005, ch. 189, § 22.

The 2005 amendment, effective June 17, 2005, deleted "or custodian" in Subsection A.

Decisions under prior law. — In light of the similarity of the provisions, annotations decided under former Section 32-1-46 NMSA 1978 have been included in the annotations to this section.

Not violative of due process. — As the legislature can properly determine that a parental liability statute is reasonably necessary, such a statute does not deprive the parents of property without due process of law. Alber v. Nolle, 1982-NMCA-085, 98 N.M. 100, 645 P.2d 456.

Equal protection. — A similar statute does not deprive parents of equal protection of the laws. Alber v. Nolle, 1982-NMCA-085, 98 N.M. 100, 645 P.2d 456.

Legislative intent. — A similar statute constituted a legislative recognition of the moral duty owed by a parent to exercise reasonable care so as to control his minor child and prevent him from maliciously or willfully damaging the property of another. Potomac Ins. Co. v. Torres, 1965-NMSC-041, 75 N.M. 129, 401 P.2d 308.

Definition of "willful" and "malicious" conduct. — There is very little, if any, difference between "willful" and "malicious" conduct, and an act done "willfully" or "maliciously" means the intentioned doing of a harmful act without just cause or excuse or an intentional act done in utter disregard for the consequences, and does not necessarily mean actual malice or ill will. Potomac Ins. Co. v. Torres, 1965-NMSC-041, 75 N.M. 129, 401 P.2d 308; Ortega v. Montoya, 1981-NMSC-135, 97 N.M. 159, 637 P.2d 841.

Young child may be capable of willful and malicious conduct. — As a matter of law, a young child is not incapable of willful and malicious conduct in committing an intentional tort. It is for the trier of fact to determine, based upon the child's age, experience and mental capacity, whether the child acted in a willful and malicious manner. Ortega v. Montoya, 1981-NMSC-135, 97 N.M. 159, 637 P.2d 841.

Statutory basis required for parental liability. — In the absence of statutory authority, there is no basis for holding the parents, qua parents, civilly liable for crimes of their minor child. Lamb v. Randall, 1980-NMCA-144, 95 N.M. 35, 618 P.2d 379.

Requisite malice or willfulness may be readily inferred from defendant's act in driving at excessive speeds in a crowded business district, in attempting to evade police pursuit, and in striking a car which was stopped at a red traffic light. Potomac Ins. Co. v. Torres, 1965-NMSC-041, 75 N.M. 129, 401 P.2d 308.

Child need not first be found liable. — There is no requirement, as a predicate for parental liability, that the child be first found liable. Alber v. Nolle, 1982-NMCA-085, 98 N.M. 100, 645 P.2d 456.

Parents do not have property right in their child's teeth. — The court found no logical reason which would justify holding that either their child's teeth or the investment in orthodontic work on them should properly be considered as property of the parent, and for the damage or destruction of which recovery might be had. Ross v. Souter, 1970-NMCA-011, 81 N.M. 181, 464 P.2d 911.

Pain and suffering is an actual damage recoverable under the parental liability statute. Alber v. Nolle, 1982-NMCA-085, 98 N.M. 100, 645 P.2d 456.

Award of attorney fees on appeal requires statutory authority. Alber v. Nolle, 1982-NMCA-085, 98 N.M. 100, 645 P.2d 456.

Seizure of money of inmate of boys' school. — The only legal way that the money of any boy in New Mexico boys' school can be taken or seized for damages to property caused by him is to institute a civil action, obtain a judgment and then levy execution on any money held by the institution. 1960 Op. Att'y Gen. No. 60-121.

Am. Jur. 2d, A.L.R. and C.J.S. references. — Criminal responsibility of parent for act of child, 12 A.L.R.4th 673.

Jurisdiction or power of juvenile court to order parent of juvenile to make restitution for juvenile's offense, 66 A.L.R.4th 985.

Liability of adult assailant's family to third party for physical assault, 25 A.L.R.5th 1.