## Facts

- Denise Singer (8) was struck in the eye by a rock thrown by Tim Marx (9) in front of the Singer home in Los Angeles.
- Immediately before the injury, Tim had been throwing rocks and boasting about how far he could throw; the other children present did not throw rocks.
- Tim stood near Denise, told her “watch Barbie” (referring to another child on a bicycle), and Denise was struck by a rock as she looked back toward Tim.
- Tim admitted he threw the rock that hit Denise; the rock was described as flat, rough, and about the size of a small hen’s egg.
- Denise sued Tim for negligence and battery and sued Tim’s parents (Marion and Zeppo Marx) for negligent failure to control Tim based on alleged knowledge of Tim’s habit of throwing rocks at people.
- Denise’s father sued the parents for medical and related expenses on the same parental-negligence theory.
- Evidence indicated prior complaints about Tim throwing rocks at people and that Marion knew of the conduct and had attempted discipline; Zeppo’s knowledge and involvement were disputed.
- After plaintiffs’ case-in-chief, the trial court granted nonsuit for all defendants on all causes of action.

## Issues

1. Whether, under the standard for nonsuit, the evidence was sufficient to submit to the jury claims that Tim was liable for battery and/or negligence for throwing the rock.
2. Whether the evidence was sufficient to submit to the jury a claim that Tim’s parents were negligent for failing to control a child with a known dangerous propensity for rock-throwing.
3. Whether the evidence supported parental negligence as to Marion and/or Zeppo individually, including proof of knowledge of the child’s dangerous conduct.

## Decision

- The judgment of nonsuit was reversed as to Tim Marx on the negligence and battery causes of action.
- The judgment of nonsuit was reversed as to Marion Marx on the negligent-failure-to-control theory.
- The judgment of nonsuit was affirmed as to Zeppo Marx due to insufficient evidence of knowledge of Tim’s dangerous propensity.
- The matter was remanded for trial against Tim and Marion only.

## Legal Principles

- On a motion for nonsuit, the court must accept as true evidence supporting the plaintiff, draw all reasonable inferences in plaintiff’s favor, and resolve conflicts in plaintiff’s favor.
- A minor may be liable for battery if the minor intended the act that produced the harmful or offensive contact; liability does not depend on the minor’s full appreciation of the act’s wrongfulness.
- A minor’s negligence is judged by the care ordinarily exercised by a reasonably careful child of like age, intelligence, and experience under similar circumstances.
- Parents are not vicariously liable merely because of the parent-child relationship, but may be directly liable for negligent failure to control a child where the parent knows or should know of a specific dangerous propensity and fails to exercise reasonable care to prevent foreseeable harm.
- Parental liability requires individualized proof; the evidence may support liability as to one parent but not the other based on differing knowledge and control.

## Conclusion

The appellate court held that the evidence, viewed under the nonsuit standard, required jury consideration of Tim’s potential battery or negligence and Marion’s possible negligent failure to control a child with a known rock-throwing propensity, but did not support liability against Zeppo absent proof he knew or should have known of the specific danger.


Singer v. Marx, 144 Cal. App. 2d 637, 301 P.2d 440 (Cal. Ct. App. 1956)