411: Children, Negligence, and Resulting Liability

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What comes to mind when you think of negligence? Slip and fall incidents? Car accidents? Instances of medical malpractice? Our Delray Beach personal injury lawyers at Aronberg & Aronberg know that a child is not usually the victim or the tortfeasor in a personal injury case. But as we—and parents everywhere—understand, children can be reckless and careless and they can, as a consequence, cause harm to others. This blog focuses on Children, Negligence, Resulting Liability.

In this blog post, we will address a number of issues relating to how the law treats children’s reckless actions and who can be held responsible for resulting damages.

Can a child be legally “negligent?”

First, our personal injury lawyers understand that many might wonder, “can a child technically—legally—be negligent?” After all, we have no problem ascribing negligence to an adult who texts while he or she drives or a doctor who amputates the wrong leg. But does a child—a kid—have the experience, knowledge and maturity to deviate from normal, responsible conduct such that their actions can be deemed negligent?

The answer? It depends. Because the issue of negligence is grounded in the common law, we can find answers in both case law and the Restatement of Torts. Let’s begin with the latter. Under the Restatement, a “child less than five years of age is incapable of negligence.” Rest. (3d) Torts: Phys. & Emot. Harm, § 10(b). Similarly, the Florida Supreme Court has stated that a “child under six years of age is conclusively presumed to be incapable of committing contributory negligence.” Swindell v. Hellkamp, 242 So. 2d 708, 710 (Fla. 1970).

But for children who are five years old or older, the Restatement says that the child’s conduct is considered “negligent if it does not conform to [the conduct] of a reasonably careful person of the same age, intelligence, and experience[.]” § 10(a) (emphasis added). However, as our team of experienced personal injury lawyers know, if the child is engaged “in a dangerous activity that is characteristically undertaken by adults[,]” the child is not entitled to the lowered, more lenient standard of care. § 10(c).

In the classic case of Robinson v. Lindsay, the Supreme Court of Washington held that a 13-year-old minor child who drove a snowmobile—and as a result caused the plaintiff’s finger to be severed—was to be held to an adult standard of care. See 598 P.2d 392 (Wash. 1979). The court decided against using the lower standard because the child was willfully engaged in an inherently dangerous activity: driving a snowmobile.

Are the parents liable? Under what circumstances?

So assuming a child of sufficient age in a given case is negligent, who is liable? Of course, a child can be held liable for his or her negligence (assuming he or she can be held negligent) but children are often “judgment-proof”—that is children often have no assets to pay for the damages. In such cases, as the Aronberg Legal Team know, plaintiffs injured by the negligence of a child will often attempt to sue and hold liable the parent or parents of the negligent child.

Under Florida case law, parents are not liable for the tort of a minor child solely on the basis of their relationship. However, the Florida Supreme Court has held that there are four broad exceptions to that rule, whereby a parent can incur liability: “(1) where the parent entrusts the child with an instrumentality which, because of the child’s lack of age, judgment, or experience, may become the source of danger to others; (2) where the child committing the tort is acting as the servant or agent of its parents; (3) where the parent consents, directs, or sanctions the wrongdoing; and (4) where the parent fails to exercise control over the minor child although the parent knows or with due care should know that the injury to another is possible.” Snow v. Nelson, 475 So. 2d 225, 226 (Fla. 1985). Thus, unless a given situation falls into one of the four exceptions listed above, as our Trial Lawyers know, the parent likely will not be held liable for the tort or negligence of his or her child.

If you have any questions about the issue of child negligence and/or parental liability, or about any other personal injury-related issue, please contact our Delray Beach personal injury lawyers at Aronberg & Aronberg. To schedule a free consultation, please call 561-266-9191. With offices in Delray Beach, Boca Raton and Wellington, we are ready and able to assist you.