Monday, December 27, 2010

Suing the Six-Year-Old -- Holding Children Liable for Their Negligent Acts

A client emailed me this morning to ask whether the parents of six- and eight-year-old children could be held liable under New York law for the kids having negligently started a fire that burned down the insured's barn. 

The parents?  Probably not, I told him, because in New York a parent cannot be held liable for the negligent supervision of his or her children unless one or both of two judicially recognized exceptions to this general rule applies:
  1. if the child has a tendency to engage in vicious conduct and the parent is aware of such tendency; or 
  2. where the parent negligently entrusts a dangerous instrument to his or her child.  
See, Panlilio v. Vergakis, 2008 NY Slip Op 52616 (Sup. Ct., Nassau Co., 2008)(determination of whether an aluminum baseball bat being swung by five-year-old on a playground was a "dangerous instrument" left to the jury). 

The facts of the loss my client described implicated neither exception (kids had not previously shown pyromanic tendencies and parents did not entrust lighter to kids), so I asked whether my client had considered suing the kids directly.  Sue the kids?  Can kids be held liable in New York for injuries or damage they negligently cause?  If they are older than four years of age, yes they can.

Recently, in Menagh v Breitman, 2010 NY Slip Op 32892(U)(Sup. Ct., New York Co., decided 10/1/2010), Justice Paul Wooten of the New York County Supreme Court was called upon to consider whether the 4½-year-old defendant, Juliet Breitman, who had accidentally crashed her training-wheeled bicycle into and knocked down an 87-year-old woman on a Manhattan sidewalk, could be held liable in negligence.  Juliet's attorney made a pre-answer motion to dismiss the action against her, contending that an infant aged four years and nine months is non sui juris, i.e., incapable of negligence as a matter of law.  

After surveying the New York case law on the issue of whether and under what circumstances a child may be considered non sui juris as a matter of law, and noting that "[f]or 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'”, Justice Wooten denied Juliet's motion, holding:
Applying the Camardo [v. New York State Rys., 247 N.Y. 111 (1928)]; conflicting  inferences rule and reasonable child standard to the facts presented here, defendant-movant cannot be held non sui juris as a matter of law.  The motion papers and pleadings, do not indicate that defendant-movant‘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 the defendant-movant’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.
So can or should a reasonably prudent six- or eight-year-old know not to play with fire in a barn?  Although some might argue that children under the age of 10 cannot fully appreciate the dangers of playing with fire and that behaviors demonstrating a curiosity with fire are natural in young children, I would say yes, a six- or -eight-year-old should know not to play with fire in a barn and if a jury agrees, then my client may be able to hold the kids liable in negligence.  And a jury will probably get to decide that question, as their age should foreclose a non sui juris finding as a matter of law.

Of course, if there's no personal liability insurance to respond to a negligence suit against a minor, what's the point, right?  Executing a money judgment against a six-year-old's Nintendo DS or Lego Ultimate Building Set seems a bit harsh.


Tom Murin said...

If this is a subrogation claim - then the forum is more than likely going to be intercompany arbitration in which case a jury won't see the case. The good news being that it would cost a lot less to pursue the case.

I think perhaps a better title would be "...Holding Children liable for their potentially negligent acts."

Roy A. Mura said...

Better in the sense of more exact perhaps, but not as attention grabbing. I try to make insurance coverage as sensational as possible, Tom. ;-)

I don't think the particular client who called me is a signatory to intercompany arb, so a lawsuit would appear to be the only recovery option. Don't know whether I'd rather put such a claim against a child before an Arbitration Forums arbitrator or a jury. Which would you prefer?

J. Paulding said...

If the client goes under their insurance coverage for the barn then their insurance carrier may well be a signatory to Fire and Allied Lines Arbitration. Further since the "tort feasor" child is a member of a household he may be a "covered person" under his parent's homeowners or renters policy.This may be grounds for a DJ but I think there would be coverage if it was timely reported to the respondant carrier. I would probably ask for a three person panel in arbitration and ask to submit a Memorandum of Law post hearing.

Roy A. Mura said...

This particular client is an insurer and is not a signatory, I believe. I suppose it could always opt in for this particular matter.

Client is still investigating whether there's either a HO or renters policy covering the kids.

I agree that it would probably be better to put the issue of a child's negligence before three arbitrators rather than just one.

Larry Rogak said...

Perhaps instead of kindergarten, children should be sent to pre-law classes. "Torts 4 Kidz" or something. Fill a room with toy cars and ambulances and turn play into a learning experience.