Sign of the Apocalypse #75: Kids being sued for "negligence"

By Michael J.W. Stickings

We all know American society is becoming increasingly litigious, with everyone seemingly suing everyone else, but I'm not sure we knew it was quite this bad:

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.

The ruling by the judge, Justice Paul Wooten of State Supreme Court in Manhattan, did not find that the girl was liable, but merely permitted a lawsuit brought against her, another boy and their parents to move forward.

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 months later of unrelated causes.

Her estate sued the children and their mothers, claiming they had acted negligently during the accident. In a response, Juliet's lawyer, James P. Tyrie, argued that the girl was not "engaged in an adult activity" at the time of the accident — "She was riding her bicycle with training wheels under the supervision of her mother" — and was too young to be held liable for negligence.

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.)

But Justice Wooten declined to stretch that rule to children over 4. On Oct. 1, he rejected a motion to dismiss the case because of Juliet's age, noting that she was three months shy of turning 5 when Ms. Menagh was struck, and thus old enough to be sued.

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Mr. Tyrie had also argued that Juliet should not be held liable because her mother was present; Justice Wooten disagreed.

"A parent’s presence alone does not give a reasonable child carte blanche to engage in risky behavior such as running across a street," the judge wrote. He added that any "reasonably prudent child," who presumably has been told to look both ways before crossing a street, should know that dashing out without looking is dangerous, with or without a parent there. The crucial factor is whether the parent encourages the risky behavior; if so, the child should not be held accountable.

So this isn't about the mother being sued, this is about the child being sued. A four-year-old child. (And how is even a five-year-old capable of negligence?)

This is insane. And a sure sign that the Apocalypse is just around the bend.

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Eugene Volokh, analyzing the decision, writes:

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.

Yes -- considerably higher. And certainly higher than four.

Simply put, children should allowed to be children, and not taken to court whenever they do something that, in adult terms, may be imprudent and possibly negligent.

In what kind of a sick society is this allowed to happen?