Home Alone and the Law: Is Kevin Liable for the Wet Bandits’ Injuries?

Jenn Henry,

‘Tis the season for Home Alone and its progeny to air nonstop on TBS. Because law school has ruined me forever, I thought it would be a good idea to discuss the legal implications of a kid setting up booby traps to defend his home against unwitting burglars. I will also address possible legal avenues those poor wounded burglars might use to recover.

Is Kevin McCallister legally liable for the injuries that he inflicted on Harry Lime and Marv Merchants (collectively, the “Wet Bandits”)? 

Briefly, the facts. In or about December, 1990, Peter and Kate McCallister (the “McCallisters”) traveled from their Winnetka, Illinois, home (the “McCallister home”) to Paris, France. In a rush to get to the airport on time, the McCallisters left their eight-year-old son, Kevin McCallister (“Kevin”) behind in Illinois–that is, they left him home alone. On Christmas Eve, Kevin learned Harry Lime and Marv Merchants (collectively, the “Wet Bandits”) planned to break in to the McCallister home. The Wet Bandits initially believed that the McCallister home was vacant. For a period of time, Kevin successfully fools the Wet Bandits into thinking the McCallisters are present in the McCallister home. When the Wet Bandits realize the only occupant of the house is a child–namely, Kevin–they decide to break in. Kevin sets a number of traps for the Wet Bandits, including icing the basement steps, heating a doorknob so it will burn skin, and setting a blowtorch to go off at head-level. The Wet Bandits are injured but not killed by Kevin’s traps. At the end of the movie, the Wet Bandits are arrested, convicted, and sentenced to jail.

Although the film focuses on the criminal conduct of the Wet Bandits, and celebrates Kevin’s conduct as ingenious self-defense, Kevin’s conduct may also be wrongful, and may be punishable under either civil or criminal law.

Minor Tortfeasors
Historically, there was a bright-line test: children under seven years of age could not be held responsible for their own torts, and there was a rebuttable presumption that children 7-14  could not have formed the requisite intent required to be held responsible for the harm they caused. Today, a plaintiff must show the minor tortfeasor fell below a subjective standard of care: the standard of care expected of children of his same age, experience, and intelligence. (See, e.g.,Restatement Second of Torts, section 283A: “If the actor is a child, the standard of conduct to which he must conform to avoid being negligent is that of a reasonable person of like age, intelligence, and experience under like circumstances.”) A child is held to the adult standard of care–reasonable care–when engaged in an adult activity like driving a car or boat. (Id., comment c explains adult activity exception). As an eight-year-old boy of what is likely higher-than-average intelligence and experience for children his age, Kevin could be expected to know the difference between right and wrong as well as the probable consequences of his actions.

The tricky part for the Wet Bandits would be figuring out who to sue. Kevin is likely not the landowner of the McCallister house. Generally, parents are not liable for the torts of their children.
The Illinois Parental Responsibility Law created an exception for a minor’s willful or malicious conduct that causes an injury to a person (“The parent or legal guardian of an unemancipated minor who resides with such parent or legal guardian is liable for actual damages for the willful or malicious acts of such minor which cause injury to a person or property.”)–but  a “minor” for purposes of that statute is between ages 12-19. Kevin is too young for the Illinois Parental Responsibility Law to apply, so the McCallisters likely would not be held responsible for Kevin’s conduct.

The Wet Bandits might be able to sue the McCallisters for negligent supervision of Kevin if they could show the McCallister’s negligent supervision was the cause of the Wet Bandits’ injuries. However, the fact that the Wet Bandits burglarized the house might be considered an intervening and superseding cause–a court might hold it is unfair on policy grounds to hold the McCallisters responsible for the Wet Bandits’ injuries because they left their strangely cunning child, Kevin, at home.

That’s not to say the McCallisters would be totally off the hook. Under Illinois law, a “neglected minor” is “any minor under the age of 14 years whose parent or other person responsible for the minor’s welfare leaves the minor without supervision for an unreasonable period of time without regard for the mental or physical health, safety or welfare of that minor.” Juvenile Court Act, 705 ILCS 405/2-3(1)(d). Kevin, an eight year old, is covered by the statute because he is under the age of 14. His parents left him without supervision for multiple days. Whether the McCallisters did so “without regard” may be up for debate, since leaving Kevin behind appears to have been an accident. However, it is likely that Kevin would qualify as a “neglected minor.”

Negligence

The Wet Bandits could try to sue Kevin or his parents for negligence. Under Illinois law, a landowner owes a duty of care even to a trespasser not to set mantraps:

 
An owner or occupier of land owes no duty of care to an adult trespasser other than to refrain from willful and wanton conduct that would endanger the safety of a known trespasser on the property from a condition of the property or an activity conducted by the owner or occupier on the property.
 

Premises Liability Act, 740 ILCS 130, Section 3 (emphasis added).

Assuming, ridiculously, just for the sake of argument, that Kevin were the landowner–his conduct would have fallen below the duty of care that a landowner owes to an adult trespasser. Kevin’s conduct in laying traps, such as the icy steps, the piping hot doorknob, and the blow torch set to throw flames at head height–certainly endangered the safety of the Wet Bandits. Marv slipped and fell down the icy basement steps; Harry burnt his hand on the heated doorknob; and the blowtorch burnt Harry’s head. Kevin set these traps knowing that the Wet Bandits planned to break in to the McCallister house. It would not be hard for the Wet Bandits to show that Kevin’s conduct was intentional.

But because Kevin is likely not the landowner and he was not acting at the direction of his parents, the Wet Bandits would probably not be able to recover against either Kevin or the McCallisters for Kevin’s conduct.

Criminal Battery and Self-Defense?

The Illinois Compiled Statutes provide that “[a] person commits battery if he or she knowingly without legal justification by any means causes bodily harm to an individual or  makes physical contact of an insulting or provoking nature with an individual.” 720 ILCS 5/12-3, Sec. 12-3. Battery.
Although Kevin certainly caused the Wet Bandits bodily harm (burnt hand, ironed face, BB gun shots), Kevin may have had a legal justification for his conduct: defense of himself or defense of his home.

Defense of Self: Under Illinois law, Kevin could be justified if he reasonably believed setting traps was necessary to defend himself against the Wet Bandits’ imminent use of unlawful force. However, Kevin could only be justified in using proportional force (i.e. only using force intended or likely to cause death or great bodily harm if he reasonably believed it was necessary to prevent his own death or great bodily, or the commission of a forcible felony). See 720 ILCS 5 / Sec. 7-1. Use of force in defense of person. 

Defense of Dwelling: Kevin could be justified if he reasonably believed that setting traps was necessary to prevent or terminate the Wet Bandits’ unlawful entry into his house. However, Kevin could only be justified in using force intended to or likely to cause death or great bodily harm if the Wet Bandits made an entry in a “violent, riotous, or tumultuous manner” and Kevin believed the traps were necessary to prevent an assault or personal violence against Kevin, or Kevin reasonably believed that such force is necessary to prevent the commission of a felony in the dwelling. See 720 ILCS 5 / Sec. 7-2. Use of force in defense of dwelling.

Under Illinois law, burglary is a felony. 720 ILCS 5 / Sec. 19-1. Burglary. Similarly, repeat offenses of “Endangering the life or health of a child” is a felony. 720 ILCS 5 / Sec. 12C-5. Endangering the life or health of a child.

In sum, Kevin could even be justified in using force likely to cause death or great bodily harm if he reasonably believed such force was necessary to prevent the Wet Bandits from burglarizing his house or otherwise endangering his life or health. If the Wet Bandits sue, their best course of action is to sue the McCallisters for negligence in leaving their dangerous child at home alone. Kevin, as a minor, could probably not be held responsible for his own negligence unless a court decided he was engaged in an adult activity.

Disclaimer: This is about a television show and is for fun (or what passes for fun after the J.D.). If you left your eight-year-old son behind when you flew to Paris this December, I can’t help you with legal advice.

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Image courtesy Klondike Kate Photography.

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