Defendant Minnie Davis appeals from a summary declaratory judgment determining that the provisions of a homeowners policy issued by plaintiff insurance company to defendants Leonard and Betty Buehl did not оbligate the company to defend an action for personal-injury damages sustained by defendant Davis when she was struck by a motorcycle operated by the insureds’ minor son. In so far as the complaint in the personal-injury action included allegations of parental negligence claimed to be covered by the policy, we reverse.
Defendant John Buehl, a 16-year-old son of Leonard and Betty Buеhl, struck and injured defendant Davis, a pedestrian, *329 with his motorcycle. She instituted a personal-injury damage action against both the parents and the son. In response to the request of the parents, the cоmpany declined to defend, claiming that under the exclusion clause 1 of the policy, coverage did not extend to accidents occurring away from the homeowner’s premises. In furtherance оf this position, this action for declaratory judgment was initiated. The trial court granted summary judgment in favor of plaintiff insurance company, and defendant Davis appeals.
Defendant Davis concedes thаt pursuant to our holding in Lang v. General Ins. Co.
“Said defendants LEONARD and BETTY BUEHL had the *330 ability to control their son JOHN BUEHL and knew of the necessity for exercising said control, and had the opportunity to do so.
“Defendants LEONARD and BETTY BUEHL failed to exercise reasonable care to contrоl their son defendant JOHN BUEHL, in that they caused and permitted the purchase of the motorcycle which defendant JOHN BUEHL was operating on June 24, 1966, at the time of said collision; that said defendants LEONARD and BETTY BUEHL allowed defendant JOHN BUEHL to use said vehicle knowing his use of it was likely to result in injury to another as a natural and probable consequence.
“That defendants LEONARD and BETTY BUEHL were negligent in that they took no reasonable or timely steрs to protect plaintiff from the negligence of defendant JOHN BUEHL or from his known propensity, namely, bad driving habits.”
Such a cause of action, although infrequently prosecuted, is not novel and sets forth a valid clаim for relief predicated on the theory of common-law negligence. Although parents under the common law are generally not held liable in damages for the torts of their minor children solely because of that relationship, where the parents cause the tort to occur through their own negligence, they may be held liable for the damages. 3
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In Clarine v. Addison,
“The record does not show whether Addison, Jr. was experienced or inexрerienced, careful or careless, with firearms. There is nothing to indicate that the son, come almost to man’s estate, was an unsafe donee of the target weapon in question.”
Other leading jurisdictiоns have also recognized the availability of this cause of action. In McDonald v. Home Ins. Co. 97 N. J. Super. 501,
*332 “We hold that Home was obliged to defend the McDonalds against the Dorman action. The action against the McDonalds was not based upon ‘the ownership, maintenancе, operation, use, loading or unloading of * * * automobiles * * *’ even though the immediate cause of the injury and death of Dorman, Jr. was Mickey’s operation of the automobile. The action was based upon their alleged negligence in failing to supervise and control their child, knowing of his violent and dangerous habits.” (Italics supplied in part.) 5
Since the elements of such a cause of action involve a breach of duty by parents tо exercise reasonable supervision and control over their minor child so as to prevent him from creating an unreasonable risk of bodily harm to others, liability is not established unless it is also proved that thе parents know, or have reason to know, of the necessity and opportunity for exercising such control and are chargeable with knowledge of the dangerous or violent propensities of thе child. In short, liability of the parent arises from his active parental misconduct in creating an unreasonable risk of harm to others by placing an instrumentality into the hands of a minor child who the parents know, or оught to know, is unable to utilize it without endangering innocent third parties.
The record here discloses no facts concerning the accident, the age or habits of the child, or the knowledge and conduct of thе parents. We, of course, do not pass on any claimed evidentiary support for defendant’s allegations against the parents or in any way undertake to assess the likelihood of her recovery. Such determinations need not be undertaken, for an insurance company’s duty to defend is contractual, to be determined by the allegations of the complaint against the insured and the indemnity coverage afforded by the policy. Where the allegations of a complaint state a cause of action within the terms of policy coverage,
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the insurance company must undertake to defеnd the insured. Christian v. Royal Ins. Co.
Affirmed as to the judgment entered with respect to the cause of action grounded in negligence against the child and, by imputation, against the parents; reversed as to the cause of action alleging negligence against the parents in permitting or causing the child to injure defendant Davis.
Notes
The exclusionary provision of the policy provides: “* * * [T]his Policy Does Not Apply:
* * * * *
(b) * * * to the ownership, maintenance, operation, use, loading or unloading of (1) automobiles or midget automobiles while away from the premises or the ways immediately adjoining * *
The policy defines “automobile” as “a land motor vehicle, trailer or semitrailer.”
In Lang v. General Ins. Co.
Restatement, Torts 2d § 316, states: “A parent is under a duty to exercise reasonable care so to control his minor child as to prevent it from intentionally harming others or from so conducting itself as to create an unreasonable risk of bodily harm to them, if the parent
(a) knows or has reason to know that he has the ability to control his child, and
(b) knows or should know of the necessity and opportunity for exercising such control.” (Italics supplied.)
See, also, 2 Harper & James, Torts, p. 1056, where it states: “Where а parent has reason to know of a propensity for a particular type of dangerous conduct on the part of his minor child he is bound to take reasonable steps (by discipline, training, or the like) to curb or guard against the propensity.”
In that case, Harry Addison, Sr., furnished his minor son, Harry Addison, Jr., with a .22-ealiber pistol. Plaintiff subsequently sued both the parent and son on behalf of his own child for personal injuries he suffered when аccidentally shot by Harry Addison, Jr. Plaintiff appealed from an order denying his motion for new trial after the trial court dismissed the action as to Addison, Sr.
To the same effect, see Lalomia v. Bankers & Shippers Ins. Co. 35 App. Div. 2d 114, 312 N. Y. S. 2d 1018, appeal dismissed, 27 N. Y. 2d 796, 315 N. Y. S. 2d 856,
See, also, Annotation, 50 A. L. R. 2d 458, § 4; 7A Appleman, Insurance Law and Practice, § 4682.
The policy expressly includes both Leonard and Betty Buehl as the “Named Insured.”
Coverage E of the insurance policy provides: “(a) Liability: To pay оn behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages because of bodily injury or property damage, and the Company shall defend any suit against the Insured alleging such bodily injury or property damage and seeking damages which are payable under the terms of this policy, even if any of the allegations of the suit are groundless, false or fraudulent; but the Company may make such investigation and settlement of any claim or suit as it deems expedient.” (Italics supplied.)