concurring and dissenting.
I concur in the majority’s finding that the complaint was properly dismissed as to Donald Pierce, but I dissent to the ruling that the complaint was prematurely dismissed as to the other defendants.
In order to state a claim for relief based on negligence, a complaint must allege sufficient facts to establish: 1) a duty on the part of the defendant in relation to the *787plaintiff, 2) failure on the part of the defendant to conform his conduct to the requisite standard of care required by the relationship, and 3) an injury to the plaintiff resulting from that failure. The complaint in the present case is fatally deficient in that it contains no allegations that demonstrate the existence of a duty owed by defendants to Mathes.
Mathes bases his complaint against Donald and Sheila Pierce on the fact that they are the natural parents of Kenneth and were negligent in their care and supervision of him. The complaint also contains an allegation that Kenneth was twenty years old at the time of the incident.
At common law, the general rule was that a parent was not liable for a child’s torts. See, Moore v. Waitt (1973), 157 Ind.App. 1, 298 N.E.2d 456. Certain exceptions were carved out of this general principle. Thus, in Broadstreet v. Hall (1907), 168 Ind. 192, 80 N.E. 145, the Indiana Supreme Court held that a father was liable for the torts of his nine-year-old son, not by reason of a parent-child relationship, but rather, because they occupied the relationship of principal and agent, or master and servant. Another exception is found in Repczynski v. Mikulak (1927), 93 Ind.App. 491, 157 N.E. 464. There the Court held that a parent was liable for the damages caused by his fifteen-year-old son when the son negligently caused an automobile accident. The Court ruled that the parents themselves were negligent in consenting to their son’s driving the automobile in violation of a statute.
The Legislature in 1957 enacted a statute to allow a victim, under certain circumstances, to recover damages from the parents of a child who commits a tort. IC 1971, 31-5-10-1 (Burns Code Ed.) (repealed) 1 provides:
“Minors — Malicious or wilful destruction of property — Liability of parents. — Respecting any minor under the age of eighteen [18] years, the parent or parents with whom such minor is living and having custody of such minor, shall be liable for the actual damages sustained, but not exceeding the sum of seven hundred fifty dollars [$750] plus the court costs of the action, to any person, firm, association, corporation and the state of Indiana and its political subdivisions, including but without being limited to cities and towns, for any and all damage proximately caused by the injury to or destruction of any property, real, personal or mixed by the intentional or wilful or malicious act or acts of such minor.” (Emphasis added.)
While it is apparent that in some cases a parent may be liable for the torts of a child, it is equally clear that such liability can only attach when the child is a minor. In the present case the complaint alleges that Kenneth had attained the age of majority. His parents were no longer legally responsible for his actions. The complaint therefore fails to state a claim against the parents.
The complaint also fails to state a claim against the grandparents. Mathes bases his claim of liability against the grandparents on their relationship of in loco parentis with Kenneth. A person who stands in loco par-entis however, is charged only with the rights and duties of a parent. See, Sturrup v. Mahan et al. (1974), 261 Ind. 463, 305 N.E.2d 877. Inasmuch as the complaint fails to state a claim against the parents, it also fails to state a claim against the grandparents.
Mathes argues that Kenneth’s parents and grandparents had a duty to control Kenneth which is similar to the duty of an owner of a vicious animal to prevent the animal from injuring others. He asks the question: “Should there be liability on a custodian for the vicious, irrational conduct of an animal, while at the same time there is no liability on the custodian for the vicious, irrational conduct of an insane man?”
I refuse to make the analogy which Mathes requests. In a society which guarantees the rights and privileges of its people such a comparison cannot be drawn. These rights and privileges may be cur*788tailed, but only after just cause and judicial intervention. Even a person who is allegedly insane is entitled to due process and a court determination of his sanity before he can be involuntarily subjected to the control and custody of another. The complaint nowhere suggests such a judicial determination was made. The case against the parents and grandparents was therefore properly dismissed for failing to state a claim.
Reduced to the essentials, the complaint alleges that the psychiatric centers were negligent in: 1) releasing Kenneth as an outpatient, 2) failing to use reasonable care to diagnose and treat Kenneth, 3) failing to initiate or recommend the commencement of a mental competency hearing, and 4) failing to make proper recommendations to Kenneth’s parents and grandparents upon his release.
In order for the centers to have been negligent in releasing Kenneth, they must first have had a duty to confine him. Before such a duty can exist however, it must be determined if the psychiatric centers had any right to confine Kenneth.
At the time of the incident IC 1971, 16-14-9-1 — 16-14-9-31 (Burns Code Ed.)2 governed the admission procedures for mentally ill persons. A reading of these statutes clearly illustrates the Legislature’s proper regard for the constitutional rights of persons allegedly in need of commitment to a psychiatric institution. IC 1971, 16-14-9-9 provided in part: “The mental illness of any person who is alleged to be mentally ill shall be adjudged by the judges of the circuit or superior courts of the state of Indiana....” (Emphasis added.) Before a person could be committed to a psychiatric hospital, there had to be a sworn statement by both a reputable citizen and a physician filed with the clerk of the circuit or superior court. IC 1971,16-14-9-12; IC 1971, 16-14r-9-13. A court hearing was also required before commitment. IC 1971, 16-14-9-13 — 16-14-9-17. If it appeared to the judge that the person was mentally ill, he was required to enter an order for the commitment of the person. IC 1971, 16-14-9-18.
It is apparent from the statutes that a court order was necessary to confine a person in a psychiatric hospital against his will. It is possible that confinement, without judicial authority, could have rendered a psychiatric institution liable for false imprisonment. The complaint here does not contain any allegations that either psychiatric center was authorized to confine Kenneth. Without such allegations the complaint fails to show a duty on the part of the psychiatric hospitals to confine Kenneth and was therefore properly dismissed with respect to the centers’ release of Kenneth as an outpatient.
A psychiatric hospital does have a duty to use reasonable care in the diagnosis and treatment of patients. It is also possible that a hospital has a duty to initiate mental competency hearings in appropriate cases. A hospital, through its physicians must exercise reasonable care in making judgments for the welfare of the patient. This duty however extends only to the patient and his family, not to members of the general public. Failure to use reasonable care may subject a hospital or physician to a medical malpractice action, but such an action may be initiated only by the patient or his immediate family. The duty to use reasonable care in the diagnosis and treatment, including commitment proceedings, does not exist for the benefit of strangers to the physician-patient relationship. The complaint therefore fails to state a claim for relief in this regard.
The issue of whether or not the psychiatric centers had a duty to make proper recommendations to Kenneth’s parents and grandparents is not before this Court. Assuming that such a duty could exist, the crucial issue is to whom the duty extends. The duty would obviously be for the benefit and well-being of the patient and his family. Here again, the duty would not extend to members of the general public. A psychiatric center has no duty to members of *789the general public to make recommendations to a patient’s family as to restrictions of the patient’s activities. The complaint therefore again fails to state a claim for relief in this regard.
The allegations in the complaint fail to establish a duty on the part of the parents, grandparents or psychiatric centers which extends to the plaintiff. The existence of a duty is an essential element in a negligence action. It is also a question of law to be decided by the court. Failure to allege sufficient facts in the complaint to establish a duty is fatal to the plaintiff’s action. I would therefore affirm the judgment of the trial court dismissing the action for failure to state a claim.
. For present law see IC 1971, 34-4-31-1 (1980 Bums Supp.).
. For present law see IC 1971, 16-14-9.1-1— 16-14-9.1-18 (1980 Bums Supp.).