                                NO.     94-448
              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                      1995


MICHAEL JOHNSON,
              Plaintiff and Appellant,
         v.
DON DEMPSEY, SANDY DEMPSEY, and CODY                       5:p 0819%
DEMPSEY, a Minor; DON DONER, MARY DONER,                   i; 1 (,'.'           f
and BRIAN and BRETT DONER,                                r,,.*' ., +i,<,!,<,; I$
                                                 ,,,I:‘Ty:< .-j;: <<~L!,:.y;.y:;t~:     CO’JRT
                                                          ~, ;, :> TTizy c;+ ;j~;<.>:‘rANA
              Defendants and Respondents.



APPEAL FROM:       District Court of the Fifth Judicial District,
                   1n and for the County of Beaverhead,
                   The Honorable Byron L. Robb, Judge presiding.


COUNSEL OF RECORD:
              For Appellant:
                   Robert T. Cummins,    Attorney at Law,
                   Helena, Montana
              For Respondent:
                   Ross P. Richardson, Mark A. Vucurovich,
                   Henningsen, Vucurovich & Richardson,
                   Butte, Montana (for Dempseys)
                   Brendon J. Rohan, Poore, Roth & Robinson,
                   Butte, Montana   (for Don and Mary Doner)

                   Vincent J. Kozakiewicz, Attorney at Law,
                   Dillon, Montana   (Brian and Brett Doner)


                                      Submitted on Briefs:                  May 25, 1995
                                                  Decided:                  September 8, 1995
Filed:
Justice Terry N. Trieweiler delivered the opinion of the Court.

         The    plaintiff,    Michael Johnson. filed a complaint in the

District Court for the Fifth Judicial District in Beaverhead County

in which he alleged that the defendant parents were liable for

damages to his property caused by the defendants' children. The

District Court denied the parents' motions for summary judgment,

but concluded that the parents' potential liability was $2,600 per

child,     plus costs,       pursuant to §§ 40-6-237 and -238, MCA.     The

parents deposited $7,890 with the clerk of court and moved the

court to dismiss them as defendants.             The District Court granted

the parents' motions.           Johnson appeals from the District Court's

order.         We affirm the District Court.

     The issue on appeal is:
     Did the District Court err when it held that liability imposed

upon parents pursuant to § 40-6-237, MCA, is limited to $2,600,

plus costs, per child based on the facts in this case?
                                FACTUAL   BACKGROUND

     Michael Johnson owns an automobile salvage yard north of

Dillon where he keeps automobiles and building and salvage
materials.        Brian and Brett Doner are brothers under the age of 18,

and are the sons of Mary and Don Doner.           Cody Dempsey is under the

age of 18,         and is the son of Sandy and Don Dempsey.         Johnson

alleged that Brian, Brett,          and Cody entered his salvage yard on

May 24, 25, and 26, 1991, vandalized vehicles, building materials,

and other supplies,          and caused him damages in excess of $27,750.
The parents acknowledged that Brian,              Brett,   and Cody entered

                                          2
Johnson's property on or before May 26, 1991, but contended that

for purposes of Montana's parental liability statutes, the boys'

alleged acts gave rise to a single claim for damage.

        On March 1 and March 8, 1994,      the parents moved for summary

judgment and filed their supporting memorandum. On March 11, 1994,

Johnson filed his brief in response to the parents' motions.

        The    court denied the parents'       motions,   but offered an

Explanatory Comment concerning its interpretation of the parental
liability      statutes.     In the Comment, the court stated that when,

"the alleged damage occurred to property in the same location and

substantially at one time (the complaint says twice on 5/26/9X,

while     plaintiffs'      brief indicates on 5/24-25-26/91),   that the

parents'      liability is limited to $2,600 per child."    Based on this

conclusion,      the court found the Dempseys liable for $2,600 plus

costs, and the Doners liable for $5,200 plus costs, for a total of

$7,890.

        The Dempseys and Doners subsequently deposited $7,890 with the

Beaverhead County Clerk of Court and filed motions in which they

requested the District Court to dismiss them as defendants.           The

court granted the parents' motions and ordered the clerk of court

to disburse the $7,890 to Johnson.             Johnson appeals from the

District Court's dismissal order.

                                  DISCUSSION

        Did the District Court err when it held that liability imposed

upon parents pursuant to § 40-6-237, MCA, is limited to $2,600,

plus costs, per child based on the facts in this case?

                                       3
        We review a district court's conclusions of law to determine

whether the court's application of the law was correct. In reMorriage

ofSchnrn (Mont. 1994), 878 P.2d 908, 910, 51 St. Rep. 676, 677

(citing InreMarriageofBurris   (1993), 258 Mont. 265, 269, 852 P.2d 616,

619).
        Montana case law provides that a parent is not liable for his

or her child's torts.       JL.v.Kienenberger (1993), 257 Mont. 113, 117-18,

848 P.2d 472, 475.         The District Court recognized this principle,

when it stated in its Comment that 'I [plarents            are not ordinarily
liable for a child's torts in [the] absence of negligence or a

respondeat      superior   situation,   but may be statutorily liable in

Montana in limited situations . . .'            In Kienenberger,   848 P. 2d at

475, we held that a parent could be liable based on the doctrine of

respondeatsuperior if a child acted as that parent's agent.           Moreover,

5 27-l-718(2), MCA,        imposes liability on parents for up to $500

when a minor child shoplifts.

        Here,   neither of these specific exceptions applies.          Instead,

Johnson based his          complaint on Montana's        parental liability

statutes.       These statutes provide, in relevant part:

        Any   .    person    . is entitled to recover damages in
        a civil action in an amount not to exceed $2,500 . .
        from the parents of any person under the age of 18 years,
        living with the parents, who shall maliciously or
        willfully destroy property . .

Section 40-6-237, MCA.
        The recovery shall be limited to the actual damages in an
        amount not to exceed $2,500 in addition to taxable court


                                        4
         costs and a reasonable attorney's fee to be set by the
         court not to exceed $100.

Section 40-6-238, MCA.

         In support of his argument that the District Court erred,

Johnson relies on what he calls                   "the practical approach to the
 [parental      liability]       statute."            He claims   that the parental
liability statutes impose a duty on parents to control their

children and prevent them from maliciously or willfully destroying

others' property.           Johnson further contends that at the very least

the parents are liable for the statutory maximum, multiplied by the

number of children, multiplied by the number of days the children

entered his          salvage yard and damaged his property.                    By his

calculation, the parents have a minimum liability by statute in the

amount of $23,400.           Johnson bases his contention on the Texas case

of Buiev. Longspaugh,    et& (Tex.   Civ. App. 1980), 598           S.W.2d    673. In

Buie ,   the court        considered whether Texas's parental                liability

statute limits a parent's liability for several acts to a total of

$5,000 (the statutory maximum) or to $5,000 per act.

         In   Buie, two minors with different parents entered and damaged

three homes belonging             to three different people.                 The court

concluded that each parent of the two minors was liable to each

homeowner,      up to the statutory maximum, for each of their child's

separate      acts      (i.e.,   $5,000   x       3   (homeowners) x 1   (minor) or

$15,000 per parent). Buie, 598 S.W.Zd at 676. However, the facts

in Buie are distinguishable from those in this case.                   In Buie, there

were three victims, whereas here there is one victim.                    In Buie, the

                                              5
damage occurred at three homes. In this case, the damages occurred

at one site.           Johnson is correct when he states that "[tlhe fact

that the damages here occurred on 3 different days makes the

application       of    the   [parental       liability]         statute     unique   from      the

decisions of other states."                  See, e.g.,    hvis v. hfnrtin   (1968) , 240   N.E.2d

913 (four children of same parents damaged one person's home and

the court found parents liable for statutory maximum multiplied by

four); Hyman v. Davies (Ind. App. 1983),                   453 N.E.2d 336 (one minor at

same site and on same day stole and damaged property belonging to

two people, and court found minor's parents liable for statutory
maximum to each property owner).                            We do not,          however,        find

Johnson's       reliance      on   Buie   persuasive.

        Montana's parental liability statutes do not specifically

establish liability for each malicious or willful act committed.

Section    40-6-237,       MCA,      provides          that     "any   .     person    .    .    is

entitled        to      recover           damages      from the parents of any person

under     the    age     of    18     years      .I'      (Emphasis added.) Johnson, as

the person whose property was damaged,                           is entitled to recover

damages against the parents of any child who damages his property.

In the case at bar,                there were three children involved in the

property    damage.        Therefore, each parent is liable for the act or

acts of each of his or her children.

     The dispositive question is how many acts were committed for

purposes of          the parental liability statutes.                           Based on the

pleadings,       there is a dispute as to how many times the children


                                                 6
entered       Johnson's   salvage     yard.       However,     for purposes of this

appeal,       we will assume that the allegations in Johnson's District

Court brief are correct.            Johnson alleges that the children entered
his property three times: May 24, 25, and 26, 1991, damaging his

property on each day.           He contends that this amounts to a minimum

of three separate acts per child.                  The parents contend, however,

that,     because Johnson's property damage occurred at the same

location and at substantially one time, there was, for purposes of

the parental liability statutes, one act per child.

        The    Montana    Legislature     undoubtedly      enacted      §§    40-f-237 and

-238, MCA, to protect third parties against property damage caused

by minors.          Other     state      courts, as        well as at           least one

commentator, have expressed this view.                   See, e.g., Buie,    598 S.W.Zd at

6 7 6 ; Hyman, 453 N.E.2d at 338 (statute designed to protect innocent

victims from damage by             "irresponsible        judgment      proof     minors");

T. H.     Stokes,   Liability of Insurer Under Personal Liability Policy for Damage Caused by

Wirful Misconduct ofInsured’s Child--Application ofNew California Statute, 7 Hastings L . J

98, loo-01 (1955) ("The most obvious aim [of the parental liability

statute] is to provide a satisfactory remedy for innocent third

parties injured by a minor, where for all practical purposes they

would have none under common law.")
        The parental liability statutes serve the valid public policy

of   protecting     innocent     third    parties     against     property       damage   by

minors.        However, we      conclude that when it enacted Montana's

parental      liability    statutes,      the     Legislature     also       intended   that


                                              7
parents not be exposed to substantial liability for damages caused

by their children which was not the fault of the parent.                  Section

40-6-238, MCA,      is clear when it states that "[tlhe          recovery shall

be limited to the actual damages in an amount not to exceed $2,500

. . . II       (Emphasis added.)

       We   conclude,      therefore,      pursuant to    Montana's      parental
liability statutes found at §§ 40-6-237 and -238, MCA, that when

malicious or willful acts of a child occur at substantially the
same    time    (as we     conclude     they did in      this   case),    and to

substantially the same property (as we conclude was done in this

case), each parent's liability is limited to a maximum of $2,600,
plus costs, for each of that parent's children who are at fault.

       We recognize, as did the District Court, however, that because

the statutes with which we are concerned lack specificity, they

must   necessarily    be   applied    on   a   case-by-case   basis   considering

such variables as the number of victims, the number of children,

the time between acts of vandalism, and the nature of damage caused

where more than one act is complained of.

       Based on the facts in this case, we affirm the judgment of the

District Court.


                                                    /

                                                   Ju tick


We concur:
                                          September 8, 1995

                                    CERTIFICATE OF SERVICE

  I hereby certify that the following certified order was sent by United States mail, prepaid, to the
  following named:


  Michael Johnson
  1300 Highway 91 No.
  Dillon. MT 59725


  ROBERT T. CUMMINS
  Attorney at Law
  One North Last Chance Gulch
  Helena, MT 59601


Mark A. Vucurovich, Esq.
 Henningsen, Vucurovich & Richardson
 P.O. Box 399
 Butte, MT 59703

  Brendon J. Rohan, Esq.
  Poore, Roth & Robinson
  1341 Harrison Ave.
  Butte, MT 59701

  Vincent J. Kozakiewicz
  Attorney at Law
  P.O. Box 588
  Dillon, MT 59725

                                                       ED SMITH
                                                       CLERK OF THE SUPREME COURT
                                                       STATE OF MONTANA

                                                       BY:/ &&L&&i@,
                                                       Deputy.
