3 Reasons why a 4 Year Old shouldn’t be Sued for Negligence

November 1st, 2010. By AbiK

So, did you know a four-year-old can be sued for negligence. It’s a mommy alert if I ever heard one. And even though the decision to allow such to happen is rooted in precedent (see below), there are three reasons why it just seems silly to consider a four-year-old old enough to be a defendant in a negligence lawsuit. Here’s what happened.

It’s sort of a Cindy Adams “only in New York, folks, only in New York” moment. Just last week, Justice Paul Wooten of State Supreme Court in Manhattan ruled that a four-year-old can be sued for negligence. He, of course, is basing this on what’s gone on before in such cases when a four-year-old is being brought to task in our court system—including one case in particular that he cites which dates back to 1928.

You may wonder what in heaven’s name a four-year-old could do to find herself being sued for negligence? Well, little Juliet Breitman and Jacob Kohn were four years old in April, 2009 when they were racing their bikes—as four-year-olds sometimes do—on a New York City sidewalk. They were apparently caught up in the excitement of it all when they accidentally hit an elderly woman, thereby causing the woman to fall and sustain a hip fracture that required surgery.

Reason #1: Uhh…She’s Four Years Old

Let’s just flash back to the age of four for a moment. You probably don’t remember what it was like, so here’s a refresher look at the “official” developmental milestones for a four-year-old…

This list comes the AAP (American Academy of Pediatrics) where they list these cognitive milestones for a child between the ages of four and five:

• Can count ten or more objects
• Correctly names at least four colors
• Better understands the concept of time
• Knows about things used every day in the home (money, food, appliances)

Ok, so those are cognitive skills—let’s now add on the motor skills as, after all, we’re talking about bike riding:

• Stands on one foot for ten seconds or longer
• Hops, somersaults
• Swings, climbs
• May be able to skip

That last one is of note—the keyword is “May”. As in also “May not”. As in, may not, therefore, be fully coordinated. Add on to that this excerpt from education.com, which talks about a four-to-five-year-old’s self-control:

“With the explosion of new skills and experiences, preschoolers may appear to understand social rules and they can be reasoned with, but when overloaded may lose self-control. They may test the rules, refuse to cooperate with family routines, become aggressive.”

If you’re tracking here, a four-year-old may not be the person you’d want making some judgement calls on your behalf. Why? Because they’re FOUR YEARS OLD. Not fourteen. Not twenty-four. They may “get”—to some degree—that barreling into someone on a bike may not be a good thing; in fact, may cause harm—but they don’t understand the full extent of their actions and the subsequent harm. Nor may they have the full motor ability to respond quickly, to move out of the way, to avert a dangerous situation.

Reason #2: It’s 2010, not 1928

So let’s take a look at this 1928 case that Justice Wooten referred to in his decision. It seems that the 1928 case had established that an infant under the age of four is presumed incapable of negligence. And, Juliet Breitman was in fact over the age of four—she was about four and three-quarters, to be precise.

My guess is that since a woman’s life expectancy in the 1920’s was about 56.4 years, a four-year-old would’ve already lived about seven percent of her little life and, therefore, must have been on a some serious maturity trajectory—vs. today, where women have a life expectancy of about 80 years (give or take) and a four-year-old would have logged only five percent of her years thus far. Let’s also add in things like the fact that most women were married off and managing their very own broods by the time they entered their 20’s in the ’20’s. Shall I even bring up child labor laws (or the non-existence of them) in the 1920’s?

Point being, the precedent is from another time and place. One that hardly reflects the norms and values within which we operate today, in 2010.

Reason #3: Mom? Dad?

She has parents. Plain and simple—this four-year-old was not on the street alone. And even if she were, she is her parents’ responsibility. What makes this case interesting is that the child’s mother was present—both mothers, in fact, were present. Both could have and should have seen the approaching danger—or the danger in general of allowing their children to “race” their bikes on the sidewalk.

True, the law in New York City regarding riding a bike on the sidewalk is that you cannot—you have to ride on the street— unless the rider is age 12 or younger and the bicycle’s wheels are less than 26 inches in diameter. Ok, so Juliet was in the clear to be riding on the sidewalk. But my kids are technically allowed to light matches if they want to—but do I let them? That would be a “No.”

Justice Wooten’s decision did not find that the four-year-old, little Juliet, was liable (thank heavens for brief moments of sanity) but the negligence lawsuit itself can move forward against Juliet, Jacob and their parents. And I suppose one has to question why—if you factor in that Juliet won’t be held liable—even bring the suit against her?

For those of you who may be wondering, the injured woman, Claire Menagh, sadly passed away a mere three months after the incident—and according to reports, her passing was due to unrelated causes. It’s her estate that’s suing…

Tags: 4 year old, bicycle, Juliet Breitman, Justice Paul Wooten, Negligence, NYC

This was posted on Monday, November 1st, 2010 at 12:46 pm and is filed under Personal Injury . Feel free to respond, or trackback. Read our comments policy.