Thursday, October 28, 2010

What do you think?

A judge in New York has ruled that a four-year-old can be sued for a bicycle accident:
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.

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.
I had no idea children as young as four could be sued for negligence. That parents could be sued for a child's negligence, I did realize--but not that the child herself could be.

I'm not entirely sure what to make of a situation like this. Is it proof of a crying need for more careful parenting and less of the new/old "free-range" approach that lets kids have a lot more latitude for going on ahead of their parents, roaming the neighborhood at fairly young ages, etc.? Or is it merely proof of our hysterically litigious society which seizes on a sad and tragic accident and tries to hold someone accountable, even if that someone was a four-year-old on a bike with training wheels?

What do you think?

UPDATE: Edited to add the NY Times' corrections to the story; the woman died three months, not three weeks, later; the Times now says her death was unrelated to the accident. This makes the idea of suing the little girl even worse, in my mind. (Thanks to reader L. for pointing out the corrections to the original story!)


Anonymous said...

I find it interesting that magically, at age 4, this child is accountable for herself. Really?
Young enough to have a sippy cup at Mass, old enough to be considered negligent of her neighbors. Again, with the arbitrary assignment of legitimacy to suit a social convenience.

Her parents are responsible. Unless, of course, we're willing to assign personhood without regard to age? Legally, that's the only way it can stand.

Considering our Guest Lecturer in Chief has no grasp on the Constitution, is it any wonder the judges who serve our states don't, either? Apparently it has ceased to be a requirement.

MacBeth Derham said...

4 years old...or 5, or 6,

"Young enough to have a sippy cup at Mass..." lol!

I am trying to imagine two kids racing bikes on E. 52nd St without hitting anyone. But the parents were probably chatting, and should surely take responsibility. I think, right?

Anonymous said...

Unfair to take a dig at the president in a case which has absolutely nothing to do with the politics and interpretation of the Constitution.

Clearly was no negligence on a child's part because it is a small child.

Accident. Yes.

Negligence on the parents' part, possibly.

In not controlling the riding of said bicycles with training wheels-- probably more the parents' issue, but the idea of having a 4-year old stand under oath to tell the judge that she was or was not aware that racing on the sidewalk was going to possibly result in life-taking injury from a fall is far-fetched.
If they're into suing, why not the doctor who repaired the leg or the anesthesiologist who gave the woman too much gas, or whoever contaminated the wound so that it required much more antibiotic, or the son himself who's clearly in it for the money and urged her to leave the hospital sooner than she was adequately rehabilitated? (The last are suggestions to go in pursuing a lawsuit, but the child? Ludicrous!)

My dear neighbor fell and broke hip and elbow after losing her balance when out walking her chihuahua-sized dog was excited by a much larger leashed dog walking by. Would she sue the lady with the big dog walking by, or the dog, or her own little pooch? Why sue?

Anonymous said...

Not enough info for me to form an opinion. But do be sure and choose a higher personal liability limit on your homeowners policy just in case you find yourself in a position like this. Or some dumb neighbor kid cracks his head open on your driveway when you're nor even home. Liable or not you will be sued and the cost of defense could be huge.

scotch meg said...

Agreed, not enough information to tell whether the parents were negligent, but ridiculous to hold the children potentially liable. I'm betting someone has a VERY large umbrella policy. Good case for an appeal, but what a waste of time and money.

Kind of the like Peggy Lawton cookie case I read during law school (about trade secrets)l... it's the facts that will make it interesting to future law students.

Red Cardigan said...

Oh, I'd definitely like to hear more facts. But this ties in with something I was reading about earlier today, about the whole "free-range parenting" concept. In our litigious society, it's getting to be pretty hard to strike a balance between being a helicopter parent and letting one's child take the kind of risks that might get his parents sued for everything they have.

scotch meg said...

I agree, it's scary trying to figure out what kind of parenting is safe... both physically and legally. But you can bet your bottom dollar that there is a large insurance policy somewhere in this picture, or there would be no lawsuit. And the insurance policy will come with an insurance defense attorney, who may not be exactly the most pleasant person to work with, but who will defend the insurance policy. These parents will not lose their homes. Not that an insurance defense makes this a good ruling by the judge or a good experience for the families. Time for a new evaluation (in New York) of the age at which children can be legally negligent. In the end, it won't be four-year-olds.

Patrick said...

I vote for "overly litigious society". Twice. Not even close. You ought to be ashamed of yourself for suing a 4-yr. old.

Of course, we're on the losing side of this argument: she'll be sued, the parents will be sued, etc. The effect will be that parents will, quite naturally, take away everything that is fun or interesting about childhood away from the kids because they can't afford to get sued: and kids will grow up being spoon-fed experiences and never have the normal exhilaration of childhood. All because of our greed and fetish for punishing people...

L. said...

The NY Times corrected their story to say the elderly woman died three months, not three weeks, after the accident.

If one of my children accidentally knocked someone over and hurt them, I would feel horrible.

But it does seem outright silly to sue the kid, not just her parents.

Siarlys Jenkins said...

Anonymous asks "Why sue?"

The simple answer could be, in many circumstances, that the injured person has no medical insurance, and desperately needs SOMEONE to pay for their treatment.

I had a similar thought when I was taking a paralegal course, studying various practice scenarios for personal injury litigation. In many instances, the case for the owner of the property on which injury occured being truly responsible, e.g. for a fall, seemed remote. But again, if the individual faced the prospect of expensive medical treatment, then of course the existence of a business liability policy would be tempting.

As with the expensive inflation of "medical malpractice," a sensible solution would be to make sure everyone is covered by medical insurance, arranged a reasonable basis for everyone to pay, using a sliding scale, but insuring that there is enough money coming in to pay for actual costs, and reserve lawsuits for gross negligence and/or malice.