In Re James D.

Smith, J., delivered the opinion of the Court. In this case we are presented with the question which we could not reach in In Re John H., 293 Md. 295 , 443 A.2d 594 (1982), the constitutionality of Maryland Code (1974, 1980 Repl. Vol., 1981 Cum. Supp.) § 3-829, Courts and Judicial Proceedings Article, making parents financially responsible under certain circumstances for the loss sustained by others as a result of their child’s delinquent acts. 1 ³¹⁶ We did not reach the issue of constitutionality in the case of In Re John H. because the parents did not argue that question to the trial judge.

Hence, "we declinefd] to pass upon the issue, leaving that interesting question to another day in a case where the issue is squarely presented.” The issue is squarely presented in this case; however, here we avoid constitutional conflicts by going no further than to hold that our interpretation of "parent” in the statute does not include the father or mother of a child where the child has been removed from their care and custody by court order and is not residing in their home at the time of the incident for which recovery is sought. The facts are not in dispute. The juvenile, James D., and others on August 7, 1981, broke into and set fire to a model home. The house was completely destroyed.

On the date in question the juvenile was under commitment to "the Juvenile Services Administration and the Montgomery County Board of Education” for placement at a particular school. He escaped from that facility and was absent without leave at the time of this incident. He had no contact with his father and mother from the time of his escape until his arrest for this act. He and his father and mother were directed to make restitution in the amount of $5,000.

The father and mother ³¹⁷ appealed to the Court of Special Appeals. We granted their petition for a writ of certiorari prior to argument in that court. We begin our analysis by noting that at common law parents were generally not liable for the tortious acts of their children unless they had directed, encouraged, or ratified the child’s act by accepting benefits from such act. See, e.g., Lanterman v. Wilson, 277 Md. 364 , 354 A.2d 432 (1976); Kerrigan v. Carroll, 168 Md. 682 , 179 A. 53 (1935); and Myers v. Shipley, 140 Md. 380 , 116 A. 645 (1922).

In the latter case this Court rejected the family car doctrine, saying that although such had been adopted "by courts of high standing and [those decisions were] supported by forcible and exceptionally able opinions,” this Court was convinced "that some of them have disregarded principles of law applicable to the relations of principal and agent, and master and servant, which, before the days of automobiles, and especially before they had become so numerous on our streets and other highways, were supposed to be as firmly fixed as any principles known to the common law.” 140 Md. at 384 . We traced the history of § 3-829, Courts and Judicial Proceedings Article, from the enactment of Ch. 151 of the Acts of 1955, applicable only to Montgomery County, on down to the present time in In Re John II., 293 Md. at 300-01 . We pointed out in that case that courts around the country are not in agreement on the issue of constitutionality of such statutes. See Annots., 54 A.L.R.3d 974 , 1020-24 (1973) and 8 A.L.R.3d 612 (1966).

We noted that in a scholarly opinion for the Court of Special Appeals the validity of Code (1957, 1966 Repl. Vol., 1972 Cum. Supp.) Art. 26, § 71A, the statutory predecessor of the present law, was upheld against constitutional attack by Judge Menchine in Matter of Sorrell, 20 Md. App. 179, 185-89 , 315 A.2d 110 , cert. denied, 271 Md. 740 , 744 (1974). So far as we have been able to determine only in Corley v. Lewless, 227 Ga. 745 , 182 S.E.2d 766 (1971), has a statute placing liability upon parents been struck down.

The ³¹⁸ Georgia law placed liability upon "[e]very parent or other person in loco parentis having the custody and control over a minor child or children under the age of 17 ... for the wilful and wanton acts of said minor child or children resulting in death, injury or damage to the person or property ... of another.” There was no limit of liability in the act. It was contended that the statute violated the due process clauses of the Federal and Georgia Constitutions. The court said in holding that the statute deprived the parents of property without due process of law: "Code Ann. § 105-113 is not penal but seeks to provide compensation in full for property damage or for personal injury. It imposed vicarious tort liability solely on the basis of the parent-child relationship.

The requirements that the parent have 'custody and control’ over the child and that the child’s act be 'wilful and wanton’ do not alter the fact that merely because of the relationship of parent and child, a tort liability is created which otherwise would not exist. It would not matter that the parent was entirely free from negligence or fault or even that he had no knowledge of his child’s tort.” 227 Ga. at 750 . Apparently the first case upholding the validity of such a statute was Kelly v. Williams, 346 S.W.2d 434 (Tex. Civ.

App. 1961). The liability there was limited to $300. The Texas law permitted recovery from the parents of any minor under the age of eighteen and over the age of ten "who maliciously and wilfully damages or destroys property, real, personal or mixed, belonging to such owner.” The act was made specifically inapplicable, however, "to parents whose parental custody and control of such child has been removed by court order, decree, or judgment.” An attack on the statute under the due process clauses of the Texas and United States Constitutions was rejected on the ground that the liability imposed was "reasonable.” ³¹⁹ Insurance Co. v. Faulkner, 259 N.C. 317 , 130 S.E.2d 645 (1963), was the next case to consider an attack upon such a law. That statute permitted parties to recover not to exceed $500 "from the parents of any minor under the age of eighteen (18) years, living with its parents, who shall maliciously or wilfully destroy property, real, personal or mixed, belonging to any such person,” etc. The court held "the enactment... [to be] within the police power of the State of North Carolina, and that it is not violative of the provisions of Article I, section 17, of the State Constitution, or of the provisions of the Fifth Amendment to the Federal Constitution.” 259 N.C. at 323-24 .

It said the "rationale [of the statute] apparently is that parental indifference and failure to supervise the activities of children is one of the major causes of juvenile delinquency; that parental liability for harm done by children will stimulate attention and supervision; and that the total effect will be a reduction in the anti-social behavior of children.” 259 N.C. at 323 . It quoted with approval a law review article which pointed out that family car statutes seem to rest on a balancing of the public interest and the individual interest, that courts have found such statutes to be within the police power of the state, that there seems to be no valid reason that the courts would hold otherwise on "vandalism” statutes, and that it seems fair and equitable to put the responsibility on the parent who may be at least partly to blame for the child’s conduct, rather than upon the innocent injured party. 259 N.C. at 322 . Mahaney v. Hunter Enterprises, Inc., 426 P.2d 442 (Wyo. 1967), rested its decision upholding a statute upon Kelly and Faulkner . The Wyoming act imposed liability not to exceed $300 upon the parents of a minor under the age of seventeen and over the age of ten "who maliciously and wilfully damages or destroys property, real, personal or mixed, belonging to such owner.” It, too, contained an exemption for parents "whose parental custody and control of such child has been removed by court order, decree or judgment.” A trial court was involved in Watson v. Gradzik, 34 Conn.

Supp. 7 , 373 A.2d 191 (1977), with a statute placing liability ³²⁰ of not more than $1,500 upon the parents of an unemancipated minor who wilfully or maliciously causes damage to any property if the minor would have been liable for the damage if he had been an adult. A demurrer raising constitutional issues was overruled. The court said it was persuaded by the arguments set forth by the Texas court in Kelly . In holding the statute constitutional, the judge said: "The court is of the opinion that the regulation has a rational relationship to the preservation and promotion of the public welfare and that the defendants have failed to prove otherwise.” 373 A.2d at 193 .

It earlier had observed that because parents do have the authority to compel obedience of their children, it would not seem unreasonable to hold them responsible for exercising that authority. Id. at 192. It found persuasive a law review article quoted by the Texas court to the effect that in all fairness it is better that the parents of these young tortfeasors be required to compensate those who are damaged, even though the parents be without fault, rather than to let the loss fall upon the innocent victim. Id. at 193.

In Rudnay v. Corbett, 53 Ohio App.2d 311 , 374 N.E.2d 171 (1977), the court had before it a challenge to the constitutionality of a statute permitting the owner of property to recover not more than $2,000 from the parents having the custody and control of a minor under the age of eighteen years "who willfully damages property belonging to such owner.” The court said in rejecting the challenge: "Although this court concludes that the primary purpose of this section is to compensate the innocent victims of property damage, we do not think it inconsistent that the legislature may have intended an additional result by enactment of R. C. 3109.09. That is, that the legislation might tend to curb jhvenile delinquency by rendering parents jointly and severally liable for the willful misconduct of their minor children. Parental control of minor children ³²¹ must necessarily remain society’s first line of defense against destructive-minded delinquents.” 53 Ohio App.2d at 315 . An Illinois statute providing that parents or legal guardians of an unemancipated minor above the age of eleven years who resides with such parent or legal guardian was "liable for actual damages for the willful or malicious acts of such minor which cause injury to a person or property” was before the intermediate appellate court in Vanthournout v. Burge, 69 Ill.

App.3d 193 , 387 N.E.2d 341 (1979). The statute was challenged on the ground that it deprived a parent of property without due process of law by imposing liability without regard to fault. In holding that the defendant had not met his burden of showing that the act in question was unconstitutional, the court said: "The legislative purpose of the Illinois Parental Responsibility Act is two-fold: (1) to compensate innocent victims of juvenile misconduct that is willful or malicious; and (2) to place upon the parents the obligation to control a minor child so as to prevent intentional harm to others. The foregoing objectives are legitimate goals to be attained by legislation.

We find that the means selected by placing the burden on the parent-child relationship is reasonably related to these goals.” 69 Ill. App.3d at 196 . Piscataway Tp. Bd. of Ed. v. Caffiero, 86 N.J. 308 , 431 A.2d 799 , appeal dismissed, 454 U.S. 1025 (1981), dealt with the validity of a New Jersey statute providing that the parents or guardian of any pupil who injured any school property should "be liable for damages for the amount of the injury to be collected by the board of education of the district in any court of competent jurisdiction . ...” The trial court held the statute unconstitutional.

The Appellate Division reversed, not without dissent, however. The Supreme Court of New Jersey said that the dissent "believed that vicarious liability without fault could be imposed only where a risk of ³²² harm has been created by the act or omission of the person held liable.” In upholding the statute against attack on due process grounds, the court said: "The Legislature apparently believed that it was more important to compensate the public and to deter delinquent behavior than to spread costs. We cannot say that such purposes are unreasonable and therefore an invalid basis for imposition of vicarious liability. As long as the means chosen by the Legislature have a rational relation to obtaining the objective sought, the statute will not be in violation of due process of law as an