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Thursday, October 28, 2010

4-year-old capable of negligence?

For you Torts professors out there, here's a case to share with your students:  http://www.nytimes.com/2010/10/29/nyregion/29young.html?_r=1&hp

Posted by Lyrissa Lidsky on October 28, 2010 at 09:26 PM in Torts | Permalink


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" the judge wrote ... that any “reasonably prudent child,” who presumably has been told to look both ways before crossing a street, should know that dashing out without looking is dangerous"
And here I thought that children are by their very nature the opposite of "reasonably prudent" ... silly me ...

P.S. For those interested in comparative law:

German Civil Code (BGB)

Section 828 - Minors
(1) A person who has not reached the age of seven is not responsible for damage caused to another person.
(2) A person who has reached the age of seven but not the age of ten is not responsible for damage that he inflicts on another party in an accident involving a motor vehicle, a railway or a suspension railway. This does not apply if he intentionally caused the injury.
(3) A person who has not yet reached the age of eighteen is, to the extent that his responsibility is not excluded under subsection (1) or (2), not responsible for damage he inflicts on another person if, when committing the damaging act, he does not have the insight required to recognise his responsibility.

Section 829 - Liability in damages for reasons of equity
A person who, for reasons cited in sections 827 and 828, is not responsible for damage he caused in the instances specified in sections 823 to 826 must nonetheless make compensation for the damage (unless damage compensation can be obtained from a third party with a duty of supervision) to the extent that in the circumstances, including without limitation the circumstances of the parties involved, equity requires indemnification and he is not deprived of the resources needed for reasonable maintenance and to discharge his statutory maintenance duties.
[Comment: basically that means that if you are rich, spoiled brat and you neglitently cripple a poor widow, you still pay, even if you are only 6 years old; unless paying makes you poor or unless the poor widow can sue your parents based on the next section:]

Section 832 - Liability of a person with a duty of supervision
(1) A person who is obliged by operation of law to supervise a person who requires supervision because he is a minor or because of his mental or physical condition is liable to make compensation for the damage that this person unlawfully causes to a third party. Liability in damages does not apply if he fulfils the requirements of his duty to supervise or if the damage would likewise have been caused in the case of proper conduct of supervision.
(2) The same responsibility applies to any person who assumes the task of supervision by contract.

Posted by: Positroll | Oct 29, 2010 7:27:56 AM

Query whether a better theory would be possible liability on the part of the 4 year old's parents IF they had reason to believe that their child had the propensity to act in this manner? Is there a "deep pocket" issue involved, e.g. insurance coverage for the child?

Posted by: Shag from Brookline | Oct 29, 2010 6:53:20 AM

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