There is an interesting ruling out of New York that a four-year-old girl can be sued for negligence after running down an elderly woman with her bicycle . . . equipped with training wheels. Justice Paul Wooten of State Supreme Court in Manhattan ruled that Claire Menagh can sue Juliet Breitman, 4, for her allegedly negligent bicycle handling.
The accident occurred in April 2009 when two little speedsters Juliet Breitman and Jacob Kohn were racing their bicycles as their mothers, Dana Breitman and Rachel Kohn, watched. They hit Menagh, 87, who suffered a hip fracture and later died after three weeks at the hospital.
Menagh’s estate sued both the children and the parents. The common law historically affords children a degree of protection by imposing presumptions that children of a certain age are either incapable of negligence or presumptively incapable of negligence. Above a certain age (which differs from state to state) a standard for children applies that allows the jury to judge the reasonableness of a child of similar “age, experience, intelligence and degree of development and capacity.” While stated as an objective standard, this is a departure from the standard for adults where courts generally do not consider the intelligence of the individual. This standard is often associated with the ruling in Charbonneau v. MacRury, 84 N. H. 501 (1931).
Under the so-called “Illinois Rule,” a child as old as seven can be treated as incapable of negligence.
Children are subject to an adult standard when they are engaged in an adult activity as in driving a car.
In this case, the defense counsel argued that, since bicycling was not an adult activity, the children could not be held for negligence. Thus, since she is not below four, the incapacity rule would not attach. He therefore denied the motion to dismiss. The result is that the jury can consider what a reasonable child of this “age, experience, intelligence and degree of development and capacity” might do.
What is interesting is the lack of a presumption between age 4 and some higher age. Instead, the state goes to the general standard of “age, experience, intelligence and degree of development and capacity.” Some states do not have a specific age of incapacity at all while others like Illinois have a higher age of seven limit.
In Hamel v. Crosietier, for example, the Supreme Court of New Hampshire dealt with this issue in a case in 1969 involving a nine year old (and ten month) boy who knocked the tooth out of a child with a slingshot. The Court held:
We have never adopted an arbitrary standard except insofar as the case [**145] of Dorr v. Railway, 76 N. H. 160 may now be considered as authority that a child of five and one-half is conclusively presumed incapable of contributory negligence. In this state no distinction is made between charging a minor with negligence or with contributory negligence. Both impose on the party making the charge the burden of proof. Charbonneau v. MacRury, 84 N. H. 501 laid down the rule in this state that a minor defendant should be judged in his conduct by the standard that [*507] [***4] his age, intelligence and experience require. This rule recognizes that while in the absence of evidence of disability (Bernard v. Russell, 103 N. H. 76) an adult standard is a general standard it would be improper not to use a specific standard for children. The progress from infancy to adulthood is neither uniform among children of the same age nor consistent in the same child.
The adoption of an exact age for any presumption either absolute or rebuttable is neither required nor desirable with this standard. There will of course be cases in which a Trial Court may rule as a matter of law that a particular child is incapable of contributory negligence. In the case of a very young infant age alone will dictate this. Contrariwise a child who has attained the age and experience to participate in adult activities and is so engaged at the time of the accident will be held to adult standards. Daniels v. Evans, 107 N. H. 407. Generally however, the withdrawal of the issue of a child’s negligence from the jury involves a determination by the Trial Court that reasonable men could not find the child capable of negligence.
A similar fact pattern to the New York case was raised in Appelhans v. McFall, 325 Ill. App. 3d 232; 757 N.E.2d 987 (2001). In this case, Maxine Appelhans, 66, was hit by a five-year-old defendant William McFall who was riding his bicycle. She sued both the child and his parents. The Court ruled that a five-year-old was incapable of negligence and then explained the rule governing children above the age of seven years old:
When a child is between 7 and 14 years old, the trier of fact must consider the “age, capacity, intelligence, and experience of the child” in light of the rebuttable presumption that a child between the ages of 7 and 14 is incapable of negligence. Savage v. Martin, 256 Ill. App. 3d 272, 281, 195 Ill. Dec. 142, 628 N.E.2d 606 (1993). However, HN14it is well settled in Illinois that a child who is 14 years old ( Country Mutual Insurance Co. v. Hagan, 298 Ill. App. 3d 495, 505, 232 Ill. Dec. 433, 698 N.E.2d 271 (1998)) or who engages in an adult activity ( Chu, 275 Ill. App. 3d at 865) is held to an adult standard of care. HN15Because bicycle riding on a public street is not an adult activity, a bicyclist between the ages of 7 and 14 is held to a reasonable standard of care based upon his age and experience. Chu, 275 Ill. App. 3d at 865. Therefore, [*239] one could argue that, when a child under the age of 7 engages in an activity that children between the ages of 7 and 14 normally pursue, such as riding a bicycle, the child should be held to the standard of care of a reasonable 7-year-old. However, we do not answer this question here.
That is a quite different approach than New York — a critical three year difference for parents before capacity kicks in for their children.
One could argue that the New York rule still allows for an ample defense by showing that the four (plus) toddler has little judgment or capacity. The claim against the parents is far less controversial — but the plaintiffs must still show a lack of supervision. If kids take a sharp turn into an adult, it can be hard to find liability absent the view that the kids should not have been allowed to bike on the sidewalk or in front of the building. Generally, in suits against the parents, plaintiffs must show “(1) the parents were aware of specific instances of prior conduct sufficient to put them on notice that the act complained of was likely to occur and (2) the parents had the opportunity to control the child.”
In class, I often ask the students to consider whether it would not be more efficient to treat parents liable under a strict liability standards. While this comes too close to how we treat manufacturers of products for some, an argument could be made that it is unfair for parents to externalize the costs and risks of children to others. Under this approach, parents are treated as the “cheapest cost avoiders” –the party who is in the position to avoid accidents at the lowest costs. Usually however the class is overwhelming opposed to such an approach based on societal values vis-a-vis children.
Under this ruling, children are not given a complete incapacity defense but can be protected if shown to have little maturity, experience, or intelligence. Such trials produce the curious role of the family’s lawyer trying to show the immaturity and lack of intelligence of the child. Conversely, opposing counsel must try to show how clever and intelligent the defendant is. In any case, a toddler makes for a very sympathetic defendant despite the terrible cost to the family of the deceased.
Here is the full opinion in Menagh v. Breitman, 2010 NY Slip Op 32892U; 2010 N.Y. Misc. LEXIS 5039:
SUPREME COURT OF NEW YORK, NEW YORK COUNTY
2010 NY Slip Op 32892U; 2010 N.Y. Misc. LEXIS 5039
October 1, 2010, Decided
October 15, 2010, Filed
NOTICE: THIS OPINION IS UNCORRECTED AND WILL NOT BE PUBLISHED IN THE PRINTED OFFICIAL REPORTS.
In this action for personal injury, plaintiff alleges that the infant defendants, who were racing bicycles on a sidewalk while under the supervision of their parent defendants, struck the plaintiff with their bicycles, causing severe injuries to the elderly plaintiff Claire Menagh. The infant defendant Juliet Breitman, sued herein as Juliette Breitman, seeks in this pre-answer motion to dismiss plaintiff’s complaint, as against her only, based upon documentary evidence and upon failure to state a cause of action, pursuant to CPLR § 3211(a)(1) & (7). Defendant-movant has attached her birth certificate as an exhibit to her motion papers. The sole issue before the Court is whether an infant aged four years, nine months, is non sui juris, incapable of negligence as a matter of law, under the facts presented.
CPLR 3211(a) Motion to Dismiss Standards
CPLR 3211(a) provides:
(a) Motion to dismiss cause of action. A party may move for judgment dismissing one or more causes of action asserted against him on the ground that:
1. A defense is founded on documentary evidence; . . .
7. the pleading fails to state a cause of action[.]
Pursuant to CPLR 3211(a)(1), in order to “prevail on a motion to dismiss based on documentary evidence, the documents relied upon must definitively dispose of plaintiff’s claim” (Bronxville Knolls v Webster Town Ctr. Pshp., 221 AD2d 248, 634 N.Y.S.2d 62 (1st Dept. 1995); Juliano v McEntee, 150 AD2d 524, 541 N.Y.S.2d 232 [2d Dept 1989]; Demas v 325 W. End Ave. Corp., 127 AD2d 476, 511 N.Y.S.2d 621 [1st Dept 1986]). A CPLR 3211(a)(1) “motion may be appropriately granted only where the documentary evidence utterly refutes plaintiffs factual allegations, conclusively establishing a defense as a matter of law” (Goshen v Mut. Life Ins. Co., 98 NY2d 314, 326-27, 774 N.E.2d 1190, 746 N.Y.S.2d 858 ).
Upon a 3211(a)(7) motion to dismiss for failure to state a cause of action, the “question for us is whether the requisite allegations of any valid cause of action cognizable by the state courts ‘can be fairly gathered from all the averments” (Foley v D’Agostino, 21 AD2d 60, 65, 248 N.Y.S.2d 121 [1st Dept. 1964], quoting Condon v Associated Hosp. Serv., 287 NY 411, 414, 40 N.E.2d 230 ). In order to defeat a pre-answer motion to dismiss pursuant to CPLR 3211, the opposing party need only assert facts of an evidentiary nature which fit within any cognizable legal theory. (Bonnie & Co. Fashions, Inc. v. Bankers Trust Co., 262 A.D.2d 188, 693 N.Y.S.2d 19 [1st Dept. 1999].)
When determining a CPLR 3211(a) motion, “we liberally construe the complaint and accept as true the facts alleged in the complaint and any submissions in opposition to the dismissal motion” (511 W. 232nd Owners Corp. v. Jennifer Realty Co., 98 NY2d 144, 151-152, 773 N.E.2d 496, 746 N.Y.S.2d 131 ; Leon v Martinez, 84 NY2d 83, 87, 638 N.E.2d 511, 614 N.Y.S.2d 972, ; Sokoloff v Harriman Estates Dev. Corp., 96 NY2d 409, 754 N.E.2d 184, 729 N.Y.S.2d 425, ; Wieder v Skala, 80 NY2d 628, 609 N.E.2d 105, 593 N.Y.S.2d 752, ). “We also accord plaintiffs the benefit of every possible favorable inference” (511 W. 232nd Owners Corp., 98 NY2d at 152; Sokoloff v Harriman Estates Dev. Corp, 96 NY2d at 414).
Non Sui Juris
Defendant-movant correctly notes that infants under the age of four are conclusively presumed incapable of negligence (Verni v Johnson, 295 NY 436, 438, 68 N.E.2d 431 ). Defendant-movant Juliet Breitman, however, was over the age of four at the time of the subject incident.
For 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” (Gonzalez v Medina, 69 AD2d 14, 18, 417 N.Y.S.2d 953 [1st Dept. 1979], citing Camardo v. New York State Rys. 247 N.Y. 111, 159 N.E. 879 ; see also Steeves v City of Rochester, 293 NY 727, 731, 56 N.E.2d 735  [“The general rule is that ‘a child is not guilty of contributory negligence if it has exercised the care which may reasonably be expected of a child of similar age and capacity.'”]; Weidenfeld v Surface Transp. Corp. of N.Y., 269 AD 341, 345, 55 N.Y.S.2d 780 [1st Dept 1945]; McLoughlin v Bonpark Realty Corp., 260 AD 471, 23 N.Y.S.2d 156 [1st Dept. 1940]; Redmond v City of New York, 81 AD2d 908, 909, 439 N.Y.S.2d 200 [2d Dept. 1981], affd 55 NY2d 796, 432 N.E.2d 136, 447 N.Y.S.2d 434 ; Eagle v Janoff, 12 AD2d 638, 639, 208 N.Y.S.2d 579 [2d Dept. 1960]; Yun Jeong Koo v St. Bernard, 89 Misc 2d 775, 779, 392 N.Y.S.2d 815 [Sup Ct, Queens County 1977]).
If “conflicting inferences may be drawn, the question is one of fact; if only one inference can be drawn the question is one of law” (Camardo, 247 NY at 116 ; accord Steeves, 293 NY at 731-32; see also Weidenfeld, 269 AD at 345; Republic Ins. Co. v Michel, 885 F Supp 426, 432-34 [EDNY 1995] [applying New York State Law, an infant aged four years, four months was not automatically non sui juris, but could be found non sui juris upon the presentation of “substantial evidence regarding the child’s lack of intelligence and maturity”]; cf. Boyd v Trent, 297 AD2d 301, 746 N.Y.S.2d 191 [2d Dept. 2002] [held, without preliminary discussion, that four year old infant was non sui juris for contributing to accident by distracting parent from driving, presumably because Second Department did not believe the four year old could appreciate the danger of distracting its parent]).
This method of analysis has resulted in ostensibly conflicting case law, in which children less than a month apart in age are treated differently as to sui juris status. For example, a child aged four years, ten months who is hit by a car while crossing the street at his mother’s direction is non sui juris as a matter of law (Ehrlich v Marra, 32 A.D.2d 638, 300 N.Y.S.2d 81 [2d Dept. 1969]). On the other hand, an unsupervised child of the same age who is struck by a car will not be held non sui juris as a matter of law, absent evidence that the child is otherwise unable to comprehend the danger posed by an approaching vehicle (e.g. Camardo, 247 NY at 111, Yun Jeong Koo, 89 Misc 2d at 775).
According to defendant-movant, supervision is the distinguishing factor between these cases. The Court disagrees. A parent’s presence alone does not give a reasonable child carte blanche to engage in risky behavior such as running across a street. A reasonably prudent child, whom we may presume has been told repeatedly by the age of four to look both ways before crossing a street 1, knows that running across a street is dangerous even if there is a parent nearby. Despite this, if a parent or other trusted adult actively directs a four year old child to cross a street at a certain time, the only logical inference is that the child will reasonably believe it is safe to cross the street at that time. Because a child above the age of four will only be non sui juris if it is impossible under the circumstances to draw any other inference, parental supervision is unlikely to affect the sui juris status of a child above the age of four unless the parent has taken an active role in encouraging the child’s conduct (see Camardo, 247 NY at 111)
Defendant-movant’s reliance on Romanchuk v County of Westchester (40 A.D.2d 877, 337 N.Y.S.2d 926 [2d Dept. 1972]), to establish that a child days shy of the age of five can be held non sui juris as a matter of law, is therefore misplaced. In that case, the child was actively placed onto a sled and pushed down a slope by his father, whereupon the sled was allegedly struck by a vehicle. The Romanchuk child was declared not to be contributory negligent as a matter of law, not because of his age or because of a mere parental presence, but because the only logical inference was that the child reasonably believed that allowing his father to push him on a sled was a safe course of action.
Applying the Camardo 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.
Furthermore, even if defendant-movant had alleged facts which, if true, might constrain the Court to a single inference, all facts must be viewed in a light most favorable to plaintiff (see supra; 511 W. 232nd Owners Corp., 98 NY2d at 152; Sokoloff v Harriman Estates Dev. Corp, 96 NY2d at 414). Merely introducing such allegations would therefore still be insufficient. Rather, defendant-movant had the burden of conclusively establishing such allegations.
Because defendant-movant has utterly failed to allege, let alone establish, facts constraining the Court to a single inference, defendant-movant’s sui juris status is a matter of fact for a jury, and this motion to dismiss must be denied.
ORDERED, that the motion to dismiss by defendant Juliet Breitman is denied; and it is further,
ORDERED that counsel are directed to appear for a preliminary conference in Room 320, 80 Centre Street, on December 8, 2010, at 11:00 A.M.; and it is further
ORDERED that the plaintiff shall serve a copy of this order with notice of entry upon all parties.
This constitutes the Decision and Order of the Court.
Dated: October 1, 2010
/s/ Paul Wooten
PAUL WOOTEN J.S.C.