It Seemed Like a Good Idea at the Time

Posted on behalf of The Bell Law Firm, PLLC on Nov 03, 2010 in Car Accidents

A judge made an unusual ruling in an unusual pedestrian accident last week. The plaintiff in the case is the estate of an 87-year-old woman. The defendants are a 4-year-old girl, a 5-year-old boy and their moms. And while the case is out of New York City, personal injury lawyer s in West Virginia may look at seemingly innocent little girls differently now.

This is by no means a "bad seed" scenario. It started with the two kids riding their bikes -- the little girl's still had training wheels -- on the sidewalk outside their building. Their mothers were nearby. The kids decided to have a race, and a few seconds later they knocked over the elderly woman who had been walking in their path. Her injuries included a broken hip, and she had surgery to repair it.

After the victim died (not as a result of the accident), her estate sued the two children and their mothers, alleging that the accident was the result of the children's negligence.

The 4-year-old girl's attorney filed a motion to dismiss, on the grounds that she had not been involved in an adult activity at the time of the accident, that she was too young to be held liable and that her mother had been present at the time of the accident. Cases from as far back as 1928 supported his argument: The state's courts had held time and time again that a child under the age of 4 is "conclusively presumed to be incapable of negligence." In legal terms, this is a "bright line rule."

The judge found the argument had no merit, principally because the girl was not under 4, she was 4 and closing in on 5 at the time of the accident. Though certainly young, she did not fall within the parameters of the bright line rule.

The judge also disagreed with the argument that the mother had been supervising the little girl. The evidence showed that she had been present, but there was nothing about her "supervising." The term itself was too vague to be meaningful here. And, the mere fact of the mother's presence "does not give a reasonable child carte blanche to engage in risky behavior." It would be different if the mother had actively encouraged the risky behavior. In that case, the judge said, the girl would not have been accountable.

In the end, this little girl is going to trial with her friend and their mothers, unless they settle before the trial. All bets are off as to how the case will turn out -- it is New York, after all, not the mean streets of Charleston.

Resource: New York Times "4-Year-Old Can Be Sued, Judge Rules in Bike Case" 10/28/10

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