IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE
ADOLPH C. LAVIN, ET AL. v. ROSS JORDON, ET AL.
Appeal from the Circuit Court for Davidson County
No. 96C-1475 Hon. Barbara N. Haynes, Judge
No. M1997-00259-SC-R11-CV — Decided April 24, 2000
FOR PUBLICATION
The nature of this appeal regards the amount of damages recoverable in an action against
parents for the intentional damage caused by their children. More specifically, we granted this
appeal to determine whether Tennessee Code Annotated section 37-10-103(a) represents a
codification of the common law tort allowing unlimited damages, or whether section 37-10-103(a)
merely sets forth the circumstances under which parents may be held liable and is therefore subject
to the statutory cap on damages contained in section 37-10-102. For the reasons stated herein, we
hold that the legislature intended for section 37-10-103(a) to set forth the basis of parental liability
and not to provide for an independent cause of action. We further hold that the common law tort of
negligent control and supervision of children, as recognized by Bocock v. Rose, 213 Tenn. 195, 373
S.W.2d 441 (1963), has been superseded by section 37-10-103 when the damage caused by the child
was intentional or malicious. As such, any recovery against parents for the intentional or malicious
harm caused by their children may not exceed $10,000 in addition to taxable court costs. We are
constrained to reverse the judgment of the Court of Appeals and remand this case to the trial court
for further proceedings consistent with this opinion.
Tenn. R. App. P. 11 Application for Permission to Appeal; Judgment of the Court of Appeals
Reversed, Case Remanded to Davidson County Circuit Court.
BARKER, J., delivered the opinion of the court, in which ANDERSON, C.J., and DROWOTA and
HOLDER , JJ., joined. Birch, J., filed a dissenting opinion.
John L. Norris, Nashville, Tennessee, for Appellants, Ross Jordon, Susan Jordon, and Sean Jordon.
Charles R. Ray, Nashville, Tennessee; Jeffery S. Frensley, Nashville, Tennessee, for Appellees,
Adolph C. Lavin and Jean Lavin.
OPINION
This case arises out of the shooting death of Troy Lavin, who was the son of the plaintiffs,
Adolph and Jean Lavin. On June 29, 1995, Troy delivered a pizza to the Nashville home of the
defendants, Ross and Susan Jordon. Shortly after his arrival at the defendants’ house, Troy was
killed by multiple shots from a .22 caliber rifle fired by Sean Jordon, the minor son of the
defendants. Sean Jordon, who later pled guilty to second-degree murder, was previously
unacquainted with Troy.
On April 18, 1996, the plaintiffs filed a complaint in the Davidson County Circuit Court
alleging that the defendants were liable for the acts of their son pursuant to the common law tort of
negligent supervision and Tennessee Code Annotated sections 37-10-101 and -103. More
specifically, the complaint alleged that the defendants were negligent in failing to control and police
Sean Jordon despite their knowledge that Sean possessed weapons. According to the complaint, the
defendants were informed by Mrs. Frances Garrison that Sean broke into her home and stole several
rifles and shotguns. The complaint also alleged that Susan Jordon later overheard a telephone
conversation in which her son admitted to stealing the weapons from Mrs. Garrison and hiding them
near his house. Sean Jordan later admitted that the .22 caliber rifle used to kill Troy Lavin was one
of the weapons he stole from Mrs. Garrison.
The complaint further alleged that the defendants had knowledge that their son possessed a
previous “history of assaultive, violent, anti-social criminal behavior,” as evidenced by Sean having
been previously declared a delinquent child for assaulting a minor and for assaulting and raping a
school mate. The complaint also alleged that even though the defendants knew that Sean aspired
to be a “gangster” and that he was actively associated with a violent gang, they nevertheless failed
to take steps to fully investigate the theft of the weapons or to reasonably control their son. The
plaintiffs sought compensatory and punitive damages in the amount of two-million dollars
($2,000,000.00).
On June 25, 1997, the defendants filed a motion for judgment on the pleadings arguing that
according to Tennessee Code Annotated sections 37-10-101, -102, and -103 , the maximum potential
liability of the defendants was $10,000. After a hearing, the trial court granted the defendant’s
motion and held that the plaintiffs’ recovery was limited to $10,000. The plaintiffs then filed a
motion for interlocutory appeal, which was granted by the trial court and by the Court of Appeals.
The Court of Appeals reversed the decision of the trial court and held that the plaintiffs had
stated a “common law cause of action against the parents of Sean Jordon to which the limiting
statute is inapplicable.” The Court of Appeals stated that while damages awarded pursuant to the
parental liability statute were capped at ten-thousand dollars, the common-law cause of action for
the same tort was unaffected by the statute and permitted the parents to seek full recovery. The
defendants then sought appeal to this Court arguing that sections 37-10-101, -102, and -103 limited
the defendants’ liability for all claims of negligent control and supervision of minor children to the
plaintiffs’ actual damages not exceeding $10,000. We agree and hold that the common law tort of
negligent control and supervision of minor children has been superseded by statute where the acts
of the child are intentional or malicious, and we therefore reverse the judgment of the Court of
Appeals.
STANDARD OF APPELLATE REVIEW
-2-
Because this case was dismissed on a motion for judgment on the pleadings pursuant to
Tennessee Rule of Civil Procedure 12.03, all well-pleaded facts and all reasonable inferences
drawn therefrom must be accepted as true. See McClenahan v. Cooley, 806 S.W.2d 767, 769
(Tenn. 1991). As such, the issue before this Court is whether Tennessee Code Annotated
sections 37-10-101, -102, and -103 operate to limit the plaintiff’s potential recovery in this case.
Id. Construction of a statute and its application to the facts of the case is an issue of law, see
Ganzevoort v. Russell, 949 S.W.2d 293, 296 (Tenn. 1997), and our standard of review, therefore,
is de novo without any presumption of correctness given to the trial court’s conclusions of law.
See, e.g., Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993).
ANALYSIS
Because resolution of this case turns upon the construction given to the parental liability
statutes, it is necessary to start our analysis with a review of these statutes. The current text of
these statutes is as follows:
37-10-101. Recovery for injury or damage by juvenile. —
Any municipal corporation, county, town, village, school district or
department of this state, or any person, or any religious organization, whether
incorporated or unincorporated, shall be entitled to recover damages in an action in
assumpsit in an amount not to exceed ten thousand dollars ($10,000) in a court of
competent jurisdiction from the parents or guardian of the person of any minor under
eighteen (18) years of age, living with the parents or guardian of the person, who
maliciously or willfully causes personal injury to such person or destroys property,
real, personal or mixed, belonging to such municipal corporation, county, township,
village, school district or department of this state or persons or religious
organizations.
37-10-102. Limitation on amount of recovery. —
The recovery shall be limited to the actual damages in an amount not to
exceed ten thousand dollars ($10,000) in addition to taxable court costs.
37-10-103. Circumstances under which parent or guardian liable. —
(a) A parent or guardian shall be liable for the tortious activities of a
minor child that cause injuries to persons or property where the parent or guardian
knows, or should know, of the child’s tendency to commit wrongful acts which can
be expected to cause injury to persons or property and where the parent or guardian
has an opportunity to control the child but fails to exercise reasonable means to
restrain the tortious conduct.
-3-
(b) A parent or guardian shall be presumed to know of a child’s tendency
to commit wrongful acts, if the child has previously been charged and found
responsible for such actions.
Tenn. Code Ann. §§ 37-10-101 to -103 (1996 & Supp. 1999).
I.
The plaintiffs first argue that section 37-10-103 represents a codification of the common
law tort of negligent control and supervision of children and that any action commenced under
this section is not subject to the statutory cap on damages in section 37-10-102. The defendants,
however, argue that section -103 is not an independent cause of action and that the section only
serves to set forth the circumstances under which a parent may be held liable for the acts of their
children as provided in section 37-10-101. According to this interpretation, the section -102 cap
on damages would apply to limit the amount of any recovery.
When construing or interpreting statutes, the “essential duty” of this Court is “to ascertain
and carry out the legislature’s intent without unduly restricting or expanding a statute’s coverage
beyond its intended scope.” See, e.g., Premium Fin. Corp. of Am. v. Crump Ins. Servs. of
Memphis, Inc., 978 S.W.2d 91, 93 (Tenn. 1998). In so doing, we are to examine the “natural and
ordinary meaning of the language used, without a forced or subtle construction that would limit
or extend the meaning of the language.” See, e.g., Tuggle v. Allright Parking Sys., Inc., 922
S.W.2d 105, 107 (Tenn. 1996). Where the language of the statute is clear and unambiguous, then
this Court will give effect to the statute according to the plain meaning of its terms. See State ex
rel. Earhart v. City of Bristol, 970 S.W.2d 948, 951 (Tenn. 1998).
After a careful review of the text of the statutes, we conclude that the plain language does
not clearly resolve the issue of whether section -103 represents a separate cause of action that
permits unlimited damages. In fact, the language of the statute seems to provide support for both
positions. For example, the absence of a statutory cap in section -103, along with the presence of
a statutory cap in sections -101 and -102, certainly lends credibility to the plaintiffs’ argument
that section -103 constitutes an independent cause of action whose damages are not limited. On
the other hand, the actual language of section -103 seems only to provide the circumstances
under which parents are liable when the criteria of section -101 are satisfied. Further, the
inclusion of section -103 in the same chapter and part as sections -101 and -102 is certainly
evidence that section -103 was not intended to operate as a separate cause of action.
When the plain language of the statute is reasonably capable of conveying more than one
meaning, the statute is rendered ambiguous, and the intent of the legislature cannot be reliably
derived from the language alone. When statutes are ambiguous, the legislative intent may be
derived from the “subject matter [of the statute], the object and reach of the statute, the wrong or
evil which it seeks to remedy or prevent, and the purpose sought to be accomplished in its
-4-
enactment.” See State v. Lewis, 958 S.W.2d 736, 739 (Tenn. 1997) (citing Mascari v. Raines,
220 Tenn. 234, 239, 415 S.W.2d 874, 876 (1967)).
We find that the history and purpose of the parental liability statute are particularly
relevant in assessing the scope and operation of section 37-10-103. At common law, parents
could not be held liable in the absence of a statute for the intentional torts committed by their
children. See Nichols v. Atnip, 844 S.W.2d 655, 658 (Tenn. Ct. App. 1992); see also Bocock v.
Rose, 213 Tenn. 195, 201, 373 S.W.2d 441, 444 (Tenn. 1963). Instead, the common law held
that because a child was considered to be a separate legal entity, the child was actually
responsible for his or her own torts, and any remedy sought had to be satisfied by the child
personally. Nevertheless, because children are usually not financially able to satisfy a judgment,
victims of juvenile torts under the common law rule typically went uncompensated. See W. Page
Keeton, et al., Prosser and Keeton on Torts § 123 (5th ed. 1984).
To alleviate the harshness of this common law rule with respect to plaintiffs, virtually all
state legislatures passed statutes allowing plaintiffs to seek recovery against negligent parents or
guardians of a juvenile tortfeasor. Id. In 1957, the Tennessee General Assembly first enacted a
statute allowing for a very limited recovery against parents or guardians for intentional property
damage caused by their children. The text of the original 1957 statute read as follows:
Section 37-1001. Any municipal corporation, county, township, village, school
district or department of the State of Tennessee, or any person, or any religious
organization, whether incorporated or unincorporated, shall be entitled to recover
damages in an action in assumpsit in an amount not to exceed three hundred dollars
($300.00) in a court of competent jurisdiction from the parents or guardian of the
person of any minor under the age of 18 years, living with the parents or guardian of
the person who shall maliciously or willfully destroy property, real, personal or
mixed, belonging to such municipal corporation, county, township, village, school
district or department of the State of Tennessee or persons or religious organizations.
Section 37-1002. The recovery shall be limited to the actual damages in an amount
not to exceed $300.00 in addition to taxable court costs.
Section 37-1003. No recovery shall be had if the parent or guardian of the person
shows due care and diligence in his care and supervision of such minor child.
Tenn. Code §§ 37-1001 to -1003 (originally enacted as 1957 Tenn. Pub. Acts ch. 76).
As evidenced by the words “no recovery shall be had if,” section 37-1003 of the original
statute appears to have only limited the circumstances under which liability may be imposed by
section 1001; it did not contemplate a separate cause of action against the parents for their
negligence. Indeed, if read in isolation and apart from section -1001, section -1003 could not
constitute an independent cause of action for the simple reason that it did not proscribe any
wrong for which remedy may be sought. As such, it is clear that all three sections of the 1957
-5-
statute were intended to apply to the same cause of action and that each section of that statute
should be read in conjunction with the others.
The next major substantive amendments to the parental liability statute came in 1981.1 In
that year, the language of section 37-1003 was significantly changed to further define the
circumstances under which parents or guardians are held liable for the acts of their children. In
so doing, The General Assembly deleted the original section -1003 in its entirety and substituted
the following language in its place:
A parent or guardian shall be liable for the tortious activities of a minor child
that causes injuries to property where a parent or guardian knows, or should know,
of the child’s tendency to commit wrongful acts which can be expected to cause
injury to property, and where the parent or guardian has an opportunity to control the
child but fails to exercise reasonable means to restrain the tortious conduct.
A parent or guardian shall be presumed to know of a child’s tendency to
commit wrongful acts, if the child has previously been charged and found responsible
for such actions.
1981 Tenn. Pub. Acts ch. 160, § 3.2
As the legislative debates in both the Senate and House of Representatives indicate, the
sponsors of the bill amending section 37-1003 did not intend for the new language of section -
1003 to establish a separate cause of action against parents; rather, the sponsors only intended to
clarify the circumstances under which parents could be held liable. For example, the primary
sponsor of the bill in the House of Representatives, Representative Bobby Wood, stated that the
intent of deleting the original section -1003 was to “replace it with three definitions of when a
parent would be responsible for the actions of a child.”3 The bill’s sponsor in the Senate also
stated that section 3 of the bill “changes the language in the Code” to clarify when parents would
be held responsible.4 We also find significant that the title of the 1981 bill was “an act to
1
The General Assembly did, however, make several minor changes to the law before 1981,
such as raising the amount of damages recoverable and changing the age of the minor. See 1969
Tenn. Pub. Acts ch. 170 (increasing the amount recoverable from $300 to $2,500 and extending
parental liability until the child reaches age 21); 1976 Tenn. Pub. Acts ch. 408 (increasing the
amount recoverable from $2,500 to $5,000 and re-establishing parental liability to extend to children
under age 18).
2
Section 1 of the same act also increased the statutory cap on liability from $5,000 to
$10,000. See 1981 Tenn. Pub. Acts ch. 160, § 1.
3
See Tape H-C&R-1 (Mar. 5, 1981) (statement of Rep. Bobby Wood).
4
See Tape S-80 (March 30, 1981) (statement of Sen. Tommy Burks).
-6-
increase the amount of recovery against a parent or guardian for the act of a minor, to modify the
defense to such suit, and to amend Tennessee Code Annotated Title 37, Chapter 10.” See 1981
Tenn. Pub. Acts ch. 160 (emphasis added).
With the exception of amendments in 1985 adding parental liability for personal injury as
well as property damage,5 section 37-1003, since re-codified as section 37-10-103, has remained
substantively unaltered since 1981. As evidenced by the original language of the statute, by the
language of the amended section, and by the legislative debates concerning the amended section,
we hold that section 37-10-103 was intended only to set forth the circumstances under which
parents could be held liable. In fact, we find no evidence that section 37-10-103 has ever been
intended to provide for a cause of action separate and independent of that presently stated in
section 37-10-101. Accordingly, the plaintiffs’ argument in this respect is without merit.
II.
The plaintiffs also argue that the 1981 and 1985 amendments did not supersede the
common law with regard to parental liability as established by our decision in Bocock v. Rose,
213 Tenn. 195, 373 S.W.2d 441 (1963). Regretfully, we must again disagree. In Bocock, this
Court held that although parents could not be held liable for the torts of their children merely
because of the parent/child relationship, parents could be held liable for their own negligence in
failing to exercise reasonable restraint upon a minor with a known propensity to commit assault.
Acting to change the common law with respect to parental liability for personal injury caused by
a child tortfeasor, this Court stated,
We find and so hold parents may be held liable for the dangerous habits of their
minor children causing injuries and damages to others, when, (1) the parent has
opportunity and ability to control the child, and (2) the parent has knowledge, or in
the exercise of due care should have knowledge, of the child’s habit, propensity or
tendency to commit specific wrongful acts, and (3) the specific acts would normally
be expected to cause injury to others, and (4) the parent fails to exercise reasonable
means of controlling or restraining the child.
Bocock, 213 Tenn. at 202, 373 S.W.2d at 445. Interestingly, the Court did not make reference to
the 1957 statute or to the fact that the General Assembly had similarly modified the common law
with respect to property damage, despite the fact that Bocock was decided six years after sections
37-1001, -1002, and -1003 were enacted.
When the General Assembly amended the parental liability statutes in 1981 and 1985, it
extended parental liability for the intentional or malicious actions of minors to situations
involving personal injury as well as property damage. See 1985 Tenn. Pub. Acts ch. 439. In so
doing, the legislature seems to have taken the language directly from our decision in Bocock.
5
See 1985 Tenn. Pub. Acts ch. 439.
-7-
We are not inclined to concede the extreme similarity in language to mere coincidence, because
the “Legislature is presumed to know the state of the law on the subject under consideration at
the time it enacts legislation.” See, e.g., Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 899
(Tenn. 1992). Indeed, a close examination of the current language of section -103(a) imposing
liability on parents for personal injury caused by their children reveals that it is virtually identical
to our language in Bocock.6
While the General Assembly has plenary power within constitutional limits to change the
common law by statute, see Southern Ry. Co. v. Sanders, 193 Tenn. 409, 415, 246 S.W.2d 65, 67
(1952), the “[r]ules of the common law are not repealed by implication, and if a statute does not
include and cover such a case, it leaves the law as it was before its enactment.” Monk v.
Ramsey, 223 Tenn. 247, 252, 443 S.W.2d 653, 655 (1969). Nevertheless, “[w]hen there is a
conflict between the common law and a statute, the provision[s] of the statute must prevail.”
Graves v. Illinois Cent. R. Co., 126 Tenn. 148, 158, 148 S.W. 239, 242 (1912).
In comparing the parental liability cause of action with our decision in Bocock, we are
constrained to conclude that the basis of liability imposed by the statute and by our decision in
Bocock are virtually identical with respect to intentional torts committed by children. Although
parental liability under the 1957 appears to have been technically grounded in vicarious liability,7
the plain language of the 1981 and 1985 amendments fundamentally changed the nature of the
cause of action. Unlike the original version of section -1003, the current section -103(a) does not
contain any language that would require the defendant to prove “due care and diligence.”
Instead, section -103(a) now states that “[a] parent or guardian shall be liable for the tortious
activities of a minor child that causes injuries to persons or property where . . . .” As this
language makes clear, lack of parental negligence is no longer merely a defense to liability;
parental negligence is now the basis of that liability. In other words, unlike the original statute,
plaintiffs now need to show more than the mere existence of a parent/child relationship to
establish a prima facie case; plaintiffs must now show that the parents are actually at fault before
any liability can attach.
6
For example, both section 37-10-103(a) and Bocock impose liability when (1) the parents
know or should know of the child’s propensity to commit wrongful acts; (2) the parents have an
opportunity to control the child; (3) the child’s wrongful acts can be expected to cause injury to
property; and (4) the parents fail to exercise reasonable means to restrain the child’s tortious conduct.
7
For example, to establish a prima facie case under the 1957 statute, the plaintiff did not
need to show that the parents of the minor tortfeasor failed to exercise “due care and diligence”;
rather, the plaintiff needed only to show that the minor “maliciously or willfully” destroyed property
while living with his or her parents or guardians. The explicit language of section -1003 placed the
burden of proof on defendants to show that they used “due care and diligence.”
-8-
As a general rule of statutory construction, a change in the language of the statute
indicates that a departure from the old language was intended. See Dunn v. Hackett, 833 S.W.2d
78, 81 (Tenn. Ct. App. 1992). Although the fundamental change in language is evidence that the
legislature intended to change the operation of the statute, we are further persuaded that the
legislature intended a substantive change because of the strong similarity between the language
of section -103(a) and the language of our holding in Bocock v. Rose. Because the General
Assembly sought to regulate by statute that which was already governed by common law, and
because a conflict exists with respect to damages between the parental liability statute and the
common law, we must hold that the statute prevails over the common law and that damages in
this case are capped at $10,000.
III.
We recognize that in construing statutes duly enacted by the legislature, it is our duty to
ascertain and give effect to the intention and purpose of the legislature, even if the particular
result reached is one that we find distasteful. Generally speaking, the “wisdom, or unwisdom[,]
of a statute lies solely with the Legislature and is not the concern of the Court.” Hoover Motor
Express Co. v. Hammer, 201 Tenn. 270, 275, 298 S.W.2d 724, 726 (1957). We also recognize
that this Court does not typically function as a forum for resolution of public policy issues when
interpreting statutes, and that in such cases, we should seek to decide only the legal case or
controversy presented by the particular parties before us. See Smith v. Gore, 728 S.W.2d 738,
747 (Tenn. 1987).
Nevertheless, we find that the result compelled by the statute in this case is particularly
distasteful in that the plaintiffs, who have lost their son to a senseless act of malicious violence,
are denied the opportunity to be made whole for their loss. If the plaintiffs are able to prove
damages exceeding $10,000, then the present remedy is plainly inadequate and wholly
insufficient to compensate the plaintiffs for the injury they have suffered. Perhaps the General
Assembly will revisit the issue of whether the statutory cap on damages contained in section 37-
10-102 provides an adequate and sufficient remedy, especially in cases when personal injury
results in death.
CONCLUSION
We hold that Tennessee Code Annotated section 37-10-103(a) does not establish an
independent cause of action against parents for the intentional acts of their children. We also hold
that the common law in this regard has been superseded by statute, at least in so far as intentional
or malicious injury to persons or property is concerned. Consequently, the total amount of
damages recoverable by the plaintiffs in this case based upon allegations of intentional conduct
by the defendants’ minor child is governed by Tennessee Code Annotated section 37-10-102.
Although we recognize that the wisdom of certain statutes is generally a question for the General
Assembly, the legislature may wish to reconsider the effect that section 37-10-102 has upon
cases such as this one. The judgment of the Court of Appeals is reversed, and this case is
-9-
remanded to the Davidson County Circuit Court for further proceedings consistent with this
opinion.
Costs of this appeal are assessed to the plaintiffs / appellees, Adolph and Jean Lavin.
-10-