WWTBAM Bored

Citing cases dating back as far as 1928, a judge has ruled that a young girl accused of running down an elderly woman while racing a bicycle with training wheels on a Manhattan sidewalk two years ago can be sued for negligence.

http://www.nytimes.com/2010/10/29/nyreg ... .html?_r=2

Hmmm.

The suit that Justice Wooten allowed to proceed claims that in April 2009, Juliet Breitman and Jacob Kohn, who were both 4, were racing their bicycles, under the supervision of their mothers, Dana Breitman and Rachel Kohn, on the sidewalk of a building on East 52nd Street. At some point in the race, they struck an 87-year-old woman named Claire Menagh, who was walking in front of the building and, according to the complaint, was “seriously and severely injured,” suffering a hip fracture that required surgery. She died three weeks later.

So both children and both parents were sued. I'm not sure what the legal implications of that would be, compared to suing the parents only. Unless these children have a trust fund, I presume any judgment would have to be paid by the parents and/or the parent's insurance.

In legal papers, Mr. Tyrie added, “Courts have held that an infant under the age of 4 is conclusively presumed to be incapable of negligence.” (Rachel and Jacob Kohn did not seek to dismiss the case against them.)

So would Ms. Breitman still have been a defendant if her daughter had been dropped as one?

MarleysGh0st wrote: So would Ms. Breitman still have been a defendant if her daughter had been dropped as one?

A parent can be sued for inadequate supervision of a minor, which would certainly seem to be applicable in this case.

It was a decision only on the pleadings. The judge held that it was conceivable that these children might possibly be liable for negligence, not that they actually were.

I'm still a little surprised by what appears to be the New York rule that children as young as 4 can be liable for negligence. I think most states set that line at a somewhat older age. --Bob

Bob78164 wrote:It was a decision only on the pleadings. The judge held that it was conceivable that these children might possibly be liable for negligence, not that they actually were.

I'm still a little surprised by what appears to be the New York rule that children as young as 4 can be liable for negligence. I think most states set that line at a somewhat older age. --Bob

In The One True Church, the general rule is that you are not liable for your own sins until you reach the 'age of reason,' which is usually put at about 7, which is why good little Catholic kids typically do their first confession and first Holy Communion at that age.

But the 'age of reason' rule really applies to intentional stuff-- knowing the difference between right and wrong-- rather than 'negligent' stuff-- conducting yourself in a reasonable manner. I would think that liability for 'negligence' would require a higher level of maturity, and thus, a higher age. Four (or five) sure seems low. I mean, a think a kid who has reached the 'age of reason' (or even a little earlier) could be held to a standard of "'don't ride you bicycle on the sidewalk if you are told not to," but absent specific adult direction, I don't think it is, um, 'reasonable' to expect that a four or five year old would necessarily figure out on her/his/their own that it is 'unreasonable' to ride a bicycle on a public sidewalk.

wintergreen48 wrote:

Bob78164 wrote:It was a decision only on the pleadings. The judge held that it was conceivable that these children might possibly be liable for negligence, not that they actually were.

I'm still a little surprised by what appears to be the New York rule that children as young as 4 can be liable for negligence. I think most states set that line at a somewhat older age. --Bob

In The One True Church, the general rule is that you are not liable for your own sins until you reach the 'age of reason,' which is usually put at about 7, which is why good little Catholic kids typically do their first confession and first Holy Communion at that age.

But the 'age of reason' rule really applies to intentional stuff-- knowing the difference between right and wrong-- rather than 'negligent' stuff-- conducting yourself in a reasonable manner. I would think that liability for 'negligence' would require a higher level of maturity, and thus, a higher age. Four (or five) sure seems low. I mean, a think a kid who has reached the 'age of reason' (or even a little earlier) could be held to a standard of "'don't ride you bicycle on the sidewalk if you are told not to," but absent specific adult direction, I don't think it is, um, 'reasonable' to expect that a four or five year old would necessarily figure out on her/his/their own that it is 'unreasonable' to ride a bicycle on a public sidewalk.

In many places young children by law must ride their bicycles on the sidewalks.

Bob Juch wrote:

wintergreen48 wrote:

Bob78164 wrote:It was a decision only on the pleadings. The judge held that it was conceivable that these children might possibly be liable for negligence, not that they actually were.

I'm still a little surprised by what appears to be the New York rule that children as young as 4 can be liable for negligence. I think most states set that line at a somewhat older age. --Bob

In The One True Church, the general rule is that you are not liable for your own sins until you reach the 'age of reason,' which is usually put at about 7, which is why good little Catholic kids typically do their first confession and first Holy Communion at that age.

But the 'age of reason' rule really applies to intentional stuff-- knowing the difference between right and wrong-- rather than 'negligent' stuff-- conducting yourself in a reasonable manner. I would think that liability for 'negligence' would require a higher level of maturity, and thus, a higher age. Four (or five) sure seems low. I mean, a think a kid who has reached the 'age of reason' (or even a little earlier) could be held to a standard of "'don't ride you bicycle on the sidewalk if you are told not to," but absent specific adult direction, I don't think it is, um, 'reasonable' to expect that a four or five year old would necessarily figure out on her/his/their own that it is 'unreasonable' to ride a bicycle on a public sidewalk.

In many places young children by law must ride their bicycles on the sidewalks.

We always rode our bikes on the sidewalks as kids. Riding in the street was a good way to end up flattened.....

lb13

Bob78164 wrote:It was a decision only on the pleadings. The judge held that it was conceivable that these children might possibly be liable for negligence, not that they actually were.

Yes, I understand this is all part of the preliminary maneuverings before the start of the actual trial. My question went to the start of that, why the plaintiffs would include both the mothers and the children in the complaint. Perhaps there could be a dispute as to whether both mothers were supervising the children at the time of the incident? Including the children as defendants could be an attempt to ensure that both families remained potentially liable.

MarleysGh0st wrote:

Bob78164 wrote:It was a decision only on the pleadings. The judge held that it was conceivable that these children might possibly be liable for negligence, not that they actually were.

Yes, I understand this is all part of the preliminary maneuverings before the start of the actual trial. My question went to the start of that, why the plaintiffs would include both the mothers and the children in the complaint. Perhaps there could be a dispute as to whether both mothers were supervising the children at the time of the incident? Including the children as defendants could be an attempt to ensure that both families remained potentially liable.

Yes, maximization of the lawyer's commission is the intent.

BackInTex wrote:Yes, maximization of the lawyer's commission is the intent.

Thank you for that observation, BiT.

I was refraining from jumping to the first, obvious reaction to this thread subject ("Stupid judge!") or to the second, obvious reaction ("Greedy lawyers!") in the hope that the Bored lawyers might actually help me learn some fine point of legal proceedings from this. But it seems you'd rather jump--

Look! Squirrel!

MarleysGh0st wrote:

BackInTex wrote:Yes, maximization of the lawyer's commission is the intent.

Thank you for that observation, BiT.

I was refraining from jumping to the first, obvious reaction to this thread subject ("Stupid judge!") or to the second, obvious reaction ("Greedy lawyers!") in the hope that the Bored lawyers might actually help me learn some fine point of legal proceedings from this. But it seems you'd rather jump--

Look! Squirrel!

Why waste the time and energy. My answer is the answer.

But.....

This is the same philosopy used when charging a criminal with multiple crimes for the same event. You have backups to acheive a conviction in case the perp is found not-guilty on one or more charges. The intent is the make sure the perp goes to jail.

BackInTex wrote:

MarleysGh0st wrote:

BackInTex wrote:Yes, maximization of the lawyer's commission is the intent.

Thank you for that observation, BiT.

I was refraining from jumping to the first, obvious reaction to this thread subject ("Stupid judge!") or to the second, obvious reaction ("Greedy lawyers!") in the hope that the Bored lawyers might actually help me learn some fine point of legal proceedings from this. But it seems you'd rather jump--

Look! Squirrel!

Why waste the time and energy. My answer is the answer.

But.....

This is the same philosopy used when charging a criminal with multiple crimes for the same event. You have backups to acheive a conviction in case the perp is found not-guilty on one or more charges. The intent is the make sure the perp goes to jail.

I think in this case it would be more appropriate for the "perp" to get a timeout. Or a nap. I mean, really...

What is not addressed at this stage of the litigation is the standard of care for a 4 year old. Adults are held the standard of a reasonable prudent person (adult). Will the jury be told that they should hold the actions of the 4yo to the standard of a reasonably prudent 4 year old or will they be held to the adult standard?

themanintheseersuckersuit wrote:What is not addressed at this stage of the litigation is the standard of care for a 4 year old. Adults are held the standard of a reasonable prudent person (adult). Will the jury be told that they should hold the actions of the 4yo to the standard of a reasonably prudent 4 year old or will they be held to the adult standard?

"Reasonably prudent 4 year old" makes me laugh hysterically, for some reason. Oh, yeah--because I have 4 kids! And I'm being told they are very good kids all the time, so I have to wonder about the not-so-good kids as I repair the incidental damage done to the house by my good kids...

This is the what a jury in South Carolina would be told "like age, intelligence and experience"

A child under the age of fourteen years is not required to conform to an adult standard of care. A minor's conduct should be judged by the standard of behavior to be expected of a child of like age, intelligence, and experience under like circumstances. A child may be so young as to be manifestly and utterly incapable of exercising any of those qualities of attention, perception, knowledge, experience, intelligence, and judgment which are necessary to enable the child to perceive a risk and to realize its unreasonable character. On the other hand, it is obvious that a minor who has not yet attained majority may be quite as capable as an adult of exercising such qualities.

BackInTex wrote: Yes, maximization of the lawyer's commission is the intent.

Since these lawyers are presumably working on a contingent fee basis based on actual recovery, "maximizing their comission" means maximizing the actual amount of money recovered by their clients. An 87 year old woman was struck and killed by a bicycle. It is the the duty of the lawyers for this woman's family to get the best settlement possible within the law and rules of ethical conduct. They need to get a judgment and collect it which means pursuing the defendant (and his insurance company) that has the most resources and will best be ina position to pay a judgment.

themanintheseersuckersuit wrote:This is the what a jury in South Carolina would be told "like age, intelligence and experience"

A child under the age of fourteen years is not required to conform to an adult standard of care. A minor's conduct should be judged by the standard of behavior to be expected of a child of like age, intelligence, and experience under like circumstances. A child may be so young as to be manifestly and utterly incapable of exercising any of those qualities of attention, perception, knowledge, experience, intelligence, and judgment which are necessary to enable the child to perceive a risk and to realize its unreasonable character. On the other hand, it is obvious that a minor who has not yet attained majority may be quite as capable as an adult of exercising such qualities.

I feel like one of the torts cases I saw had the general rule in NY as being of like age, intelligence, experience and training. If it were possible for a reasonable jury to find that a 4-year-old was negligent under that standard (which the part about street crossing indicates) then the case should proceed. I feel like that's the right call here.

Also I should note that for whatever financial reasons, in the obscene amount of cases I've seen in the last 3 months it's commonplace for the kid to be sued in negligence cases (and you can look at the parents separately) though admittedly I have yet to see a case with a kid this young.

Apparently, New York makes it a bit more difficult than some states to prove negligent supervision by a parent. Based on an earlier New York bicycle accident case, there are five categories of parental conduct which could constitute "negligent supervision"

1) a master/servant relationship (a child helping his parent do their job)

2) negligence in entrusting an instrument to a child which in the hands of child presents an unreasonable risk to others (this would apply to giving a child a gun or letting an underage child drive a car).

3) entrusting an instrumentality to a child which isn't known to be dangerous but is likely to be put to a dangerous use due to the known propensities of the child (this might apply to continuing to let a child drive who had a bad track record of driving)

4) failure to restrain the child from vicious conduct imperiling others when the parent has knowledge of the child's propensity for such conduct (a known trouble maker who continues to get involved in fights).

5) participating in the child's tortious act by consenting to it or ratifying it later.

It's very possible none of these would apply here if the child had never, to the parents' knowledge, been involved in this type of racing before and if the accident occurred before the parents had a reasonable opportunity to put a stop to it (if the kids had been racing for an hour, then it's arguable that the parents consented to it). In that case, the parents could not be held liable under any type of negligent supervision theory, and if the child isn't liable for her own negligence, then no one is responsibile.

http://www.newyorkpersonalinjuryattorne ... ident.html

silverscreenselect wrote:

BackInTex wrote: Yes, maximization of the lawyer's commission is the intent.

Since these lawyers are presumably working on a contingent fee basis based on actual recovery, "maximizing their comission" means maximizing the actual amount of money recovered by their clients. An 87 year old woman was struck and killed by a bicycle. It is the the duty of the lawyers for this woman's family to get the best settlement possible within the law and rules of ethical conduct. They need to get a judgment and collect it which means pursuing the defendant (and his insurance company) that has the most resources and will best be ina position to pay a judgment.

Like the banks are just trying to maximize their shareholders' value
Like the insurance companies are just trying to maximize their shareholder's value

I don't think it the duty of lawyers to exceed the bounds of morality or common decency to maximize their client's recovery. Suing a 4 year old for for anything is beond both.

BackInTex wrote:I don't think it the duty of lawyers to exceed the bounds of morality or common decency to maximize their client's recovery. Suing a 4 year old for for anything is beond both.

In many states, if a large dog had gotten loose and knocked the woman down, the owner would be liable. So you're saying there should be less responsibility if a child causes the injury than an animal.

And this is actually a suit against a homeowner's insurance company, not a four-year-old child. They are the ones who sold the policy to the parents and will have to pay the judgment. The plaintiff's attorney is not going to issue a garnishment to the tooth fairy.

silverscreenselect wrote:

BackInTex wrote:I don't think it the duty of lawyers to exceed the bounds of morality or common decency to maximize their client's recovery. Suing a 4 year old for for anything is beond both.

In many states, if a large dog had gotten loose and knocked the woman down, the owner would be liable. So you're saying there should be less responsibility if a child causes the injury than an animal.

And this is actually a suit against a homeowner's insurance company, not a four-year-old child. They are the ones who sold the policy to the parents and will have to pay the judgment. The plaintiff's attorney is not going to issue a garnishment to the tooth fairy.

The insurance company's name is not on the lawsuit.

Its a money grab.

I'm not saying there should or shouldn't be compensation. I don't know the facts. Other than the defendents are 4 years old.

In the dog example, they wouldn't be able to sue the dog.

I have no problem with them suing the parents.

BackInTex wrote: The insurance company's name is not on the lawsuit.

The reason the insurance company's name is not on the lawsuit is because insurance companies don't want their names as defendants on lawsuits because they know that juries will be more inclined to award a large verdict against an insurer than a 4-year-old child. So laws in most states prohibit suing or joining insurance companies as named defendants or even disclosing to the jury that an insurance company is involved.

But I'd be willing to bet that the insurance company was handling the defense for the child.