Accidents Happen…or Maybe Not: A Child’s Duty of Care; Menagh v. Breitman

The Milestone

One of the things that threatens my autonomous control as a mother most of all is the bike. Learning to ride a bike has got to be one of the first rites of passage from toddler to kid. It's not one I've ever seen written in any parenting books or websites as a 4 or 5 year old milestone, but it's a powerful one; ranked right behind walking, in my book. Both give the child increased mobility, but there's a difference between walking and riding a bike. I was never worried about my kids learning to walk. In fact, I was delighted when they started toddling around. I'm terrified of bike riding.

Let me explain. My Darling Boys riding bikes entails them moving erratically at unpredictable speeds on a street (we have few sidewalks in our neighborhood) near cars. I cannot hold their hands, sweatshirt hoods or coattails; sometimes I can't keep up with them; sometimes they veer left or right without warning; sometimes they stop in the middle of the road. It's a nerve wracking process for me. I'm continually saying things like, "focus on where you are," "get back to the curb," "end of the block coming up," "slow down," "SLOW DOWN," "STOOOOP!"

Letting Go

Eventually, they will perfect their bike riding skills and want to ride to school or to a friend's house or to the store. I will have to let them go; little by little they will be able to go farther and farther from home, without me. And that's part of life, but at this, the early stages of bike riding, I'm not enjoying the letting go part.

I have many fears about bikes and what could happen out on the wide open road, but none of my reservations include lawsuits brought against me and my children. Yet this is exactly what happened to a couple of kids and their moms in New York.

Menagh v. Breitman

Recently, the New York Times ran an article on the interesting case of Menagh v. Breitman. In this case, Juliet Breitman, age 4 years and 9 months and a friend, age 5 years, were racing their training wheels clad bikes down a sidewalk in Manhattan with the mothers trailing behind when the kids ran into 87 year-old Claire Menagh. Ms. Menagh was "seriously and severely injured" breaking her hip and subsequently died three months later of unrelated causes.

Ms. Menagh's estate sued young Miss Breitman, her young friend and both mothers for negligence. Breitman filed a motion to dismiss, claiming failure to state of cause of action, based on the Defendants age of 4 years and 9 months.

In this particular order, the only issue before the Court was whether under the law a child of Breitman's age is incapable of negligence. Breitman argued that children under the age of 4 are presumed incapable of negligence. The Court concluded that Breitman was correct in this argument, but Breitman was over the age of 4. She was, in fact, 4 years and 9 months old when this incident occurred. The Court found that for infants above the age of four, there is no bright line rule.

The Court applied a 1928 case, finding 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." A question of law can be decided by a court, but a question of fact must be decided by a jury after evidence has been presented. The Court further considered the reasonable child standard.

In conclusion, the Court denied the motion to dismiss the lawsuit, finding that the question of Breitman's negligence is a question of fact for a jury to decide.

Standard of Care

One consideration was the standard of care. A standard of care is the degree of prudence and caution a person is required to exercise under a particular circumstance. The standard of care for a child is based on a reasonable and prudent child. In many jurisdictions that means, behavior that is reasonable for a child of similar age, experience, and intelligence under like circumstances.

There are a few exceptions. A child of superior intelligence could be held to a higher standard. A child participating in an "adult activity" such as operating a vehicle, playing golf, etc., is also an exception to the child standard of care. "Children are not held to the same amount and extent of care that adults are judged." Lambert v. Tripp, a 1989 case from Maine.

Proving the Case

I have seen a lot of shock and outrage over the Breitman case in the news, on Twitter, Facebook, email and the like. While it seems surprising that a child, not quite 5 years old, could be sued in court for negligently riding her bike, the important thing to remember here is that the Court has merely allowed the lawsuit to go forward to trial. It remains to be seen whether the Menagh Estate can present evidence to prove that Breitman, her friend and their moms breached the standard of care required of them and were indeed negligent in their actions, which led to Menagh's injuries. This will be something to watch for in the coming months.

The Scoop

We live in a litigious society. If someone thinks he or she has been wronged and someone else could pay the bill, often that person will sue. That's not to say that many such lawsuits are unwarranted, but the knee jerk reaction to bring a lawsuit for any and all "accidents" is also not the answer.

Thanks to all the new and "old" readers for your kind words regarding the Star Tribune article in Sunday's paper. Don't forget to take the ML Survey by Wed, if you don't mind answering just 10 questions about you, the reader. And watch for the 1^st giveaway post this week. I would love to hear from you. On Wednesday,  I will post tips about making sure you are covered if you get sued due to an accident. Over and out…

Anna

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Comments

[Heidi]

Unbelievable. That could happen to any of us. Or, that's why I live in the 'burbs with sidewalks!

[TLM]

Quite interesting! I look forward to hearing the outcome. I understand the outrage of suing a child that young, however, I can see someone considering negligence from the parents in allowing children to ride bikes on crowded Manhatten sidewalks where accidents with injury could be highly possible.

[Anna's Dad in Texas]

The old standard under the common law was, "a bad dog's first bite is 'free'." In a community where one may not have known every dog in town it was impossible to avoid the bad ones or even for an owner to know if her dog would attack a person unprovoked, but once a dog bit somebody then it was the dog's owner and keeper who was responsible for the torts of the dog in future. This present case does not quite fit into this old common law cubby hole, since bad dogs and 4-year old bike riders are not the same kind of tortfeasors. So I guess the facts should be tried in court by a jury of 12 good people and true. I'll trust the fine people of New York County to decide what the standards are for the oversight of one's child to avoid injury to other persons or damage to the property of others. There will be no solution in this particular case that will satisfy the moral and familial sensitivities of everybody.

[Me]

"We live in a litigious society. If someone thinks he or she has been wronged and someone else could pay the bill, often that person will sue."

This is good, to a point, but it's also sad and crippling. While you're right that all the court has done is agreed to let this go to trial, it's still rather pathetic. I have a 6 year old son (6 and a half years to be more exact) and I can say with a great degree of confidence that it's just not right to blame a child for negligence. THEY'RE ALL NEGLIGENT. They're kids. That's just part of their person.

Maybe I missed the point here, but I just don't see how something like this can even make it to court.

[Anna]

Well said, Dad!

[Anna]

No, I don't think you missed the point. I agree with you, and the court may also agree. But the lower trial court has to look at the law and cannot make a decision based on its opinion. The law in this case showed that as far back as 1928, a child as young as 4 had been brought to court in a civil action. Therefore, this court had no choice, but to allow the suit to go forward to trial. There is a question of fact remaining. It's unfortunate that Menagh's Estate decided to bring suit against these kids.
Thanks for your thoughts on this issue!
Anna

[Jen]

Funny that the person above signed as "me" because this me was going to say the exact same thing. I also have a 6-year-old and agree that everything they do is negligent in a manor of speaking.

I get that the court had no choice in this matter because of precedent but how the heck did such a ridiculous precedent get set in the first place?