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!"
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.
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 1st 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…
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