Affluenza – Is It Contagious?

by Gray Reed & McGraw
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Taking advantage of his car dealership owning parents being on vacation in the Bahamas, Cache Bar, a minor, invites his high school buddies over to liberate his parents’ locked libation cabinet. Well lubricated, Cache builds quite the bonfire in the backyard knowing that no one in their hometown of Daughtry, Texas, can water their lawns because of the severe drought.  The bonfire consumes Cache’s backyard grass, and then spreads and destroys three million-dollar mansions on Cache’s street. When Cache is charged with intentionally starting a fire that recklessly damaged his neighbors’ homes, his parents scramble for a defense to help him avoid arson charges – a state jail felony. Cache’s parents read a news article about another Texas teenager who avoided jail by asserting an “affluenza” defense – that the teenager was the product of wealthy, privileged parents who never set limits for their son.  Will “affluenza” keep Cache out of jail? If so, does that affect his parents?

Criminal Defense

Cache’s parents think the “affluenza” defense might keep Cache out of jail.  Fearing that their son, who was arrested before for public intoxication and minor in possession, is facing real jail time, the Bars introduce Cache to a psychologist. Agreeing that Cache’s behavior results from his belief that he’s entitled to do anything he pleases because his parents did not punish his child misbehaving, the psychologist concludes that Cache does suffer from “affluenza” – a mental disease resulting from the Bars buying him any toy or object he wanted. But, if the criminal defense succeeds, will it affect the Bars’ potential civil liability?

Parental Liability

Generally, minors are civilly responsible for their own torts; however, they rarely have any assets to satisfy a judgment. When a minor with an adverse judgment starts working, his or her wages cannot be garnished to pay the judgment.  Therefore, injured parties routinely search for ways that parents might be financially responsible for their child’s conduct. If there is property damage and if a plaintiff can prove the child’s negligent conduct was reasonably attributable to the parent’s negligent exercise of the duty of control and reasonable discipline of the child, the parents can be held liable for their minor child’s acts.  Texas Family Code § 41.001(1).  There is no limitation on the parents’ liability for damages in that situation.

Be Careful What You Ask For

“All mothers think their children are oaks, but the world never lacks for cabbages.”  Every parent hopes and dreams to raise a good child.  If they experience the nightmare of a child in trouble with the law, the parents’ natural reaction is to do what’s necessary to protect their children from harm. Yet, protecting a child might not always be in the parents’ best interest.  Promoting an affluenza defense in Cache’s criminal case may unintentionally create civil liability for the parents. By definition, the expert psychologist’s testimony will be that they failed to reasonably discipline him while growing up.  Although Cache’s parents, technically, admitted nothing in the criminal case, any good plaintiff’s lawyer will use the psychologist’s testimony and Cache’s criminal case defense against Cache’s parents in the civil case. Moreover, the psychologist’s notes and opinions, as well as Cache’s medical records, are likely to be produced to the attorney for the damaged multi-million dollar homes (or their insurance companies) in the civil case. 

Another Problem – Insurance?

Normally Cache’s parents would expect their homeowner’s insurance policy, and any umbrella policy to cover their civil liability.   Because the “Affluenza” defense exculpates the child for his parents’ failure to be good parents, it would not be surprising for the plaintiffs to argue that Cache’s parents were not just negligent, but grossly negligent in failing properly to raise Cache and are, therefore, liable for punitive damages.  Many insurance policies exclude any coverage for claims based on reckless or grossly negligent conduct

Can it Get Any Worse?

Yes. The possibility of no insurance coverage raises another issue: asset protection.  Cache’s parents have two assets that could satisfy a large judgment: (1) their ownership interest in the car dealership; and (2) their Bahama vacation home.  These assets are not exempt from judgment creditors.  Unless Cache’s parents took steps to protect those assets before Cache burned down the neighborhood, their decision to assert the affluenza defense may ultimately ruin them financially.  

Tilting the Scales in Your Favor

Consider ALL of the possible problems – criminal, civil, public relations, family and financial issues. Even if there is an obvious criminal matter, it may be advisable to retain both criminal and civil attorneys from the outset to advise you on the situation from all sides.  If you have not addressed any asset protection options, you may want to consider taking steps today to protect the wealth you’ve built over the years, just in case something terrible happens down the road.  Otherwise, like Cache’s parents, you may unwittingly expose yourself to a myriad of risks and liability for your child’s actions.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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