Friday, March 21, 2008

Parents may be civilly liable for kid's shoplifting

Shoplifting is a crime.

And merchants should have recourse against people who steal from them.

But, assuming the parents didn't actively recruit their offspring to a life of crime, to what extent should parents be punished when their child shoplifts?

A lively discussion on the ISBA Listserv this week highlights the perils parents face when kids shoplift: A merchant can sue the child and the parents for the value of the property stolen, a penalty between $100 and $1,000, and -- and here's the killer -- attorney's fees and costs. The statute is § 16A-7 of the Criminal Code, 720 ILCS 5/16A-7. Here is the text of the statute:
§ 16A-7. Civil Liability. (a) A person who commits the offense of retail theft as defined in Section 16A-3 paragraphs (a), (b), (c), or (h) of this Code, shall be civilly liable to the merchant of the merchandise in an amount consisting of:
(i) actual damages equal to the full retail value of the merchandise as defined herein; plus

(ii) an amount not less than $100 nor more than $1,000; plus

(iii) attorney's fees and court costs.
(b) If a minor commits the offense of retail theft, the parents or guardian of said minor shall be civilly liable as provided in this Section; provided, however that a guardian appointed pursuant to the Juvenile Court Act or the Juvenile Court Act of 1987 shall not be liable under this Section. Total recovery under this Section shall not exceed the maximum recovery permitted under Section 5 of the "Parental Responsibility Law", approved October 6, 1969, as now or hereafter amended.

(c) A conviction or a plea of guilty to the offense of retail theft is not a prerequisite to the bringing of a civil suit hereunder.

(d) Judgments arising under this Section may be assigned.
You may have caught the reference to §5 of the Parental Responsibility Law. Section 5 says, in pertinent part, "No recovery under this Act may exceed $20,000 actual damages for each person, or legal entity as provided in Section 4 of this Act, for each occurrence of such wilful or malicious acts by the minor causing injury, in addition to taxable court costs and attorney's fees." This $20,000 ceiling is relatively new -- and dramatically higher than it used to be: It was originally only $500. It went to $1,000 in 1980, to $2,500 in 1998 -- and this is where the provision for attorney's fees was added on -- then jumped to $20,000 effective July 7, 2005.

Many years ago I used to handle homeowner's subrogation claims for insurers where kids were accused of vandalism. We'd sue the parents, too, because that was usually the only way to get any recovery at all -- but that recovery was limited to $1,000. And that amount might be obtained from the parents' carrier.

Now, though, according to the discussion on the ISBA Listserv, some retailers are hiring attorneys to pursue shoplifting kids and their non-shoplifting parents and demanding exorbitant amounts to settle. And, allegedly, the attorneys involved have very inflated expectations of what their fees should be.

I would think that a retailer would be reluctant to pursue such a punitive policy -- it can't possibly be good for community relations -- but, apparently, some retailers have overcome their reluctance in this regard.

And legislation pending in Springfield would allow municipalities to enact their own ordinances declaring retail theft to be unlawful -- and §16A-7 would be amended to permit civil prosecutions for violations of these ordinances as well. HB3593 was approved by Illinois House in March 2007; it is now pending in the State Senate.

Parents: This might be a good time to have a conversation with your children about the evils of shoplifting.

I noticed another Chicago lawyer's blog in reading this ISBA discussion. Michael H. Wasserman is the proprietor of The Wasserblawg. He also has a website for his law office at which he says he maintains a "generally civil practice." It's a good line.

And when I steal, er, inadvertently use it, no one can say I forgot to give attribution.


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