The Negligent 4-Year-Old

From Menagh v. Breitman (reported on in this New York Times article):

In this action for personal injury, plaintiff alleges that the infant defendants, who were racing bicycles on a sidewalk while under the supervision of their parent defendants, struck the plaintiff with their bicycles, causing severe injuries to the elderly plaintiff Claire Menagh…. [I]n this pre-answer motion to dismiss plaintiff’s complaint … upon failure to state a cause of action, … [t]he sole issue before the Court is whether an infant aged four years, nine months, is … incapable of negligence as a matter of law, under the facts presented….

[I]nfants under the age of four are conclusively presumed incapable of negligence (Verni v Johnson, 295 NY 436, 438 [1946])…. Juliet Breitman, however, was over the age of four at the time of the subject incident. For infants above the age of four, there is no bright line rule, and “in considering the conduct of an infant in relation to other persons or their property, the infant should be held to a standard of care … by what is expected of a reasonably prudent child of that age, experience, intelligence and degree of development and capacity” (Gonzalez v Medina, 69 AD2d 14, 18 [1st Dept. 19791, citing Camardo v. New York State Rys. 247 N.Y. 11 1 [1928]; see also Steeves v City of Rochester, 293 NY 727, 731 [1944] [“The general rule is that ‘a child is not guilty of contributory negligence if it has exercised the care which may reasonably be expected of a child of similar age and capacity.”’])….

This method of analysis has resulted in ostensibly conflicting case law, in which children less than a month apart in age are treated differently as to sui juris status. [In this case, “sui juris” refers to having legal responsibility for one’s actions. -EV] For example, a child aged four years, ten months who is hit by a car while crossing the street at his mother’s direction is non sui juris as a matter of law (Ehrlich v Marra, 32 A.D.2d 638 [2d Dept. 1969]). On the other hand, an unsupervised child of the same age who is struck by a car will not be held non sui juris as a matter of law, absent evidence that the child is otherwise unable to comprehend the danger posed by an approaching vehicle (e.g., Camardo, 247 NY at 111, Yun Jeong Koo, 89 Misc 2d at 775).

[Nor is] supervision … the distinguishing factor between these cases…. A parent’s presence alone does not give a reasonable child carte blanche to engage in risky behavior such as running across a street. A reasonably prudent child, whom we may presume has been told repeatedly by the age of four to look both ways before crossing a street, knows that running across a street is dangerous even if there is a parent nearby. Despite this, if a parent or other trusted adult actively directs a four year old child to cross a street at a certain time, the only logical inference is that the child will reasonably believe it is safe to cross the street at that time. Because a child above the age of four will only be non sui juris [as a matter of law -EV] if it is impossible under the circumstances to draw any other inference [since if there are two reasonable answers, the matter is for the jury -EV], parental supervision is unlikely to affect the sui juris status of a child above the age of four unless the parent has taken an active role in encouraging the child’s conduct.

Defendant-movant’s reliance on Romanchuk v County of Westchester (40 A.D.2d 877 [2d Dept. 1972]), to establish that a child days shy of the age of five can be held non sui juris as a matter of law, is therefore misplaced. In that case, the child was actively placed onto a sled and pushed down a slope by his father, whereupon the sled was allegedly struck by a vehicle. The Romanchuk child was declared not to be contributorily negligent as a matter of law, not because of his age or because of a mere parental presence, but because the only logical inference was that the child reasonably believed that allowing his father to push him on a sled was a safe course of action.

Applying the Camardo conflicting inferences rule and reasonable child standard to the facts presented here, defendant-movant cannot be held non suijuris as a matter of law. The motion papers and pleadings, do not indicate that [Breitman’s] mother had any active role in the alleged incident, only that the mother was “supervising,” a term that is too vague to hold meaning here. There are no exhibits containing evidence as to [Breitman’s] lack of intelligence or maturity, nor are there any other mitigating factors apparent in the record that would indicate that another child of similar age and capacity under the circumstances could not have reasonably appreciated the danger of riding a bicycle into an elderly woman.

A few thoughts:

1. My quick glance at the Restatement (Second) of Torts § 283A suggests that the court’s analysis is consistent with the general trend of the caselaw. Some states have adopted a bright-line rule that a child under age seven can’t be held negligent, but most have apparently rejected it.

2. As the excerpt from the Menagh opinion suggests, the issue often arises when the child is the injured party, and the allegedly negligent adult injurer argues that the child was also negligent. That matters because under contributory negligence regimes (which used to be the norm, but are now present in only a few states), the plaintiff’s negligence would generally deny the plaintiff all recovery, and under the modern comparative negligence regimes the negligence would diminish the plaintiff’s recovery (or deny it outright, in many states, if the plaintiff was more negligent than the defendant). But the cases deciding whether a child plaintiff could be contributorily/comparatively negligent are generally seen as also covering the question whether a child defendant could be found negligent.

3. The issue is separate from the question whether a parent is liable for negligently supervising a child. It’s possible that a parent could be held liable on that theory, but you could imagine a situation where the parent is taking reasonable care to supervise the child, but the child still acts negligently. [UPDATE: Eric Turkewitz (New York Personal Injury Law Blog) has more on this.]

4. You might well ask: Just what must young Miss Breitman’s allowance be, so that plaintiff could find it worthwhile to sue her? Parents are generally not liable for their children’s torts (with some exceptions sometimes provided for by statute, but I know of none that would apply here). But I suspect that the parents’ homeowner’s liability insurance, or similar insurance, covers lawsuits against family members and not just the policyholders themselves.

5. Recall that the court is just saying that whether the child was negligent is a matter for the jury — and the question is whether the 4-year-old is acting reasonably by the standard of a “reasonably prudent child of that age, experience, intelligence and degree of development and capacity.” I suspect that a jury would not find the girl liable under this standard; but I also suspect that the insurance company will settle, to avoid the cost and risk of litigation, though probably not for very much, given the likelihood that plaintiffs wouldn’t win at trial.

6. I also suspect that the whole inquiry into how reasonably prudent four-year-olds behave is unlikely to yield any meaningful result. Most four-year-olds are prudent sometimes and imprudent at other times, and I quite doubt that one can identify even in one’s head what sort of care a reasonably prudent four-year-old would likely take. Naturally, this is a matter of degree, and at some age the question becomes more meaningful, even given that fourteen-year-olds and for that matter twenty-four-year-olds will often act rashly.

But I’m inclined to say that the wiser move for a state legal system would be to set the absolute bar to liability for the child (setting aside the possibility of the parent’s being liable for negligent supervision) at a considerably higher age — maybe seven, or maybe even older. Otherwise, the result is more litigation with no real likelihood that we’ll have any sensible jury decisions in such litigation.