The liability of children.

At what age is a child deemed to have the capacity required for negligence, contributory negligence, or comparative negligence?

When children are involved in litigation, a question is almost always raised regarding whether it is within their capacity to incur responsibility for their negligent actions. Capacity is defined as "legal qualification (i.e., legal age), competency, power, or fitness. Mental ability to understand the nature and effects of one's acts."(1)

Courts have long recognized that the folly of youth is that children are incapable of exercising care and caution for their own safety; they lack the knowledge to know the essential danger or to estimate correctly the probable consequences of their acts in a given situation.(2) Indeed, thoughtless conduct, impulsive action, and immature judgment are concomitant of youth.(3) Consequently, a determination of capacity is a requirement for the child litigant.

There is long-standing disagreement regarding when a child lacks the essential capacity to create liability for himself or herself. In fact, several articulated theories have been proffered regarding the capacity of children. Nonetheless, the trend in this country appears to largely favor one of three approaches for determining whether young children have the capacity required for negligence, contributory negligence, or comparative negligence.(4) A few of the states follow some variations of these three approaches.(5)

The first of these standards calls for adoption of bright line rules that set arbitrary age limits. Under this standard, all "children under a certain age will be deemed not to have capacity for contributory negligence."(6) This approach has often been called the tender years doctrine.(7)

Jurisdictions that embrace the doctrine set age limits as to when a child is presumed to lack capacity for negligence. A child of tender years is defined as a "person of such immature years as to be incapable of exercising the judgment, intelligence, knowledge, experience, and prudence demanded by the standard of the reasonable man applicable to adults,"(8) and who, by reason of his youth, lacks the capacity to know or realize the danger.

"Many jurisdictions hold that children of certain ages are incapable of negligence as a matter of law."(9) Although "tender years" has never been defined in exact years or months, some jurisdictions have treated even 6- and 7-year-olds as lacking capacity for negligence as a matter of law.(10)

"The overwhelming majority of jurisdictions using the doctrine rarely apply it to a child of more than 10 years of age."(11)

A second standard that is similar in some respects to the tender years doctrine is the Illinois Rule.(12) Courts adopting the rule hold that a child under 7 is conclusively presumed to be incapable of contributory negligence as a matter of law. Children 7 to 14 are presumed to be incapable of negligence. However, this presumption is rebuttable.(13) "[U]nder the Illinois Rule, children over the age of 14 are presumptively capable of negligence, and the burden shifts to the minor to prove lack of capacity."(14)

The rule was judicially adopted in Illinois in Chicago City Railway Co. v. Tuohy.(15) In formulating this rule, the Illinois High Court used the state common law rules exempting infants under the age of 7 from responsibility for criminal acts.(16) The Tuohy court reasoned that if a child of a certain age could have criminal intent as delineated by state criminal statutes, the child could also have the mental capacity to be negligent.(17)

This reasoning appears to have its origins in the common law, which held that a child under 7 was "incapable of entertaining the criminal mind necessary for conviction and was presumptively incapable of a criminal intent between the age of 7 and 14."(18) Opponents argue that the use of 7 years of age and multiples of 7 years are outdated arbitrary numbers originally derived from the Bible.(19)

Unfair rule

Critics of the Illinois Rule also assert that setting age limits for children regarding their capacity for contributory negligence is unfair due to the wide range of knowledge, intelligence, experience, and understanding of children of the same age.(20) Under this rule, if children have intimate knowledge of, and are familiar with, a particular danger, they may still put themselves in harm's way with regard to the danger and yet be absolved from any liability if they are under 7.

A third approach used by many jurisdictions rejects fixed age limits in determining whether a child has the capacity for contributory negligence. This doctrine, a modern trend known as the Massachusetts Rule, says "the ultimate determination of a child's capacity for contributory negligence is almost always a question of fact for the fact finder."(21)

A determination is most often made by a jury after being given the proper instruction stating the child's specific standard of care exercised by children of the same age, judgment, and experience,(22) unless the child is so very young or inexperienced that reasonable minds could not differ on the issue of the child's capacity for fault.(23) In those instances, the court would then rule as a matter of law that the child was not contributorily negligent. This standard calls for a fact-specific inquiry into each case.

Proponents of the modern trend assert that setting forth an absolute rule that delineates the minimum or maximum ages for capacity of children as to contributory negligence is arbitrary, unfair, and nonsensical.(24) William Prosser wrote in 1971 that a fixed rule regarding a child's capacity should not be "laid down in advance without regard to [the particular child and] the particular case."(25)

The more difficult cases with regard to the tender years doctrine and the Illinois Rule tend to be those cases that deal with older children who are part of the immune class.

Under the tender years doctrine, a child 5 years and 9 months old is incapable of negligence, while a 6-year-old might be afforded a rebuttable presumption that he or she is incapable of negligence. Under the Illinois Rule, a child 13 years and 10 months has a rebuttable presumption of negligence,(26) while a child 14 years old is presumed to be capable of negligence. The difficulty of categorizing older children under these two standards lends strong support to proponents of the modern trend.(27)

Standard of care for children

If a child litigant is deemed to have the capacity to be responsible for his or her actions, an appropriate standard of care must be articulated. In a typical negligence action, the conduct of the defendant and of the plaintiff are judged by the reasonable person standard(28) to determine negligence. Courts generally do not permit idiosyncrasies of the litigants to be taken into account to justify conduct that fails to achieve the reasonable person standard.

However, in many courts, there are exceptions to this general rule. These exceptions usually take into account minors, mentally impaired people, and mentally incompetent people.

Exceptions to the reasonable person standard when a litigant is a minor or a child of "tender years" are widely accepted. Indeed, the allowance made for the immaturity of a child charged with negligence of any kind is one of the least controversial features of U.S. tort doctrine.(29)

   Subjective factors are critical in cases involving minors, and courts have
   applied a standard of care that is part subjective and part objective. The
   subjective component tests whether the particular child had the capacity,
   i.e., sufficient knowledge and experience, to appreciate the risk of
   injury. If so, the objective element of the standard of care tests the
   child's conduct against that care that a child of like age, knowledge,
   capacity, and experience would exercise under similar circumstances.(30)

   The fundamental reason for measuring a child's conduct by a varying child
   standard instead of the reasonably prudent man standard derives from the
   basic unfairness of predicating legal fault upon a standard which most
   children are simply incapable of meeting. Children generally do not have
   the same capacity to perceive, appreciate, and avoid dangerous situations
   which is possessed by the ordinary, prudent adult.(31)

As discussed earlier under the standards for determining capacity, the child standard of care is not applied to children of all ages. Those who fall within the so-called protected classes under the tender years approach, the Illinois Rule, and the Massachusetts Rule are immune from negligence and are not subject to any standard of care.

The child as a defendant in civil actions

As discussed throughout this article, the law makes allowances for a minor's immaturity and lack of experience. A minor's liability with regard to negligence, contributory negligence, and comparative negligence is often judged by the standards enumerated above. However, a child litigant who becomes a defendant is not always afforded the protection engendered by his or her minority. Certainly, minority alone is usually not a defense in an action of tort.(32) "With respect to liability for tort that depends upon the fault of the actor, or upon the existence of a particular state of mind on the part of the actor, the circumstances of the child's age may be a very important factor."(33)

However, age is not a factor involving a tort that merely requires a voluntary act and not knowledge of risk in injurious qualities.(34) Many jurisdictions have held a minor "liable for harm resulting from conduct that in an adult would make him liable as for tort."(35)

Where liability is sought to be imposed on minors who are established to have the capacity for negligence,(36) many courts use the standards of care that measure an ordinary child of like age, intelligence, maturity, and so on.

In many jurisdictions, the recognized exception to the "age, intelligence, and experience" rule is invoked when a child is engaged in an activity that is normally engaged in only by adults and is dangerous.(37)

When a child undertakes activities like operating automobiles, motorboats, motorcycles, or airplanes, the child will invoke the adult activity rule.(38) The court in Robinson v. Lindsay(39) indicated that the rationale for applying an adult standard to such situations is not because the activities are considered normal for adults but because the activities are "inherently dangerous."(40) Courts have said it would be unfair to the public to permit minors to observe any other standard of care than that expected of other members of the public in operating a car, airplane, or power boat.(41)

However, at least one jurisdiction does not agree with this rationale and does not impose adult standards of care on minors engaged in adult activities.(42)

A question that has often arisen with respect to the liability of a minor is what liability, if any, should be imposed on the parent of the minor. As a general rule, a parent is not vicariously liable for the torts of his or her child merely as a consequence of the parent-child relationship.(43)

Liability of the parent requires something more, such as the negligence of the parent in failing to properly supervise the child(44) or a principal-agent or a master-servant relationship.(45) "An important instance of the parent's liability for the child's tort, supposed to be an application of the master and servant or principal and agent rule, is the so-called family car or family purpose doctrine? "The doctrine of the family car holds the owner, or person with control of the vehicle, or `head of the family' liable for the negligent driving of a minor child or the spouse using the vehicle with the parent's or owner-spouse's permission, but for the driver's own pleasure or business."(47) In fact, a long line of decisions have recognized this rule.(48)

In almost all instances, the law requires that an appropriate allowance be made for children of tender years with regard to negligence, contributory negligence, and comparative negligence. "Various policy rationales have been advanced to justify immunizing a particular class of children from liability for negligence," such as "the ability in young children to command the requisite mental capacity for negligent conduct; the positive social consequences of insulating young children from the results of their own conduct; and the conservation of judicial resources."(49)

Many states have adopted the child capacity and standard of care considerations and apply them today in some fashion. Although there are areas of the law that are still unclear with regard to minors,(50) the concept that minors can be negligent appears to have taken hold, and the standard of care appears to be largely consistent as it is applied.

Notes

(1.) BLACK'S LAW DICTIONARY 207 (6th ed. 1991).

(2.) See, e.g., Endicott v. Rich, 348 S.E.2d 275 (Va. 1986).

(3.) See, e.g., Burger v. Missouri Pac. Ry., 20 S.W. 439, 441 (Mo. 1892).

(4.) Whether one is charged with contributory or comparative negligence would depend on the law of the state. For purposes of this discussion, the two are used interchangeably with regard to determining fault.

(5.) David W. Holub, Note, The Contributory-Negligence Defense as Applied Against Children in Indiana, 16 VAL. U. L. REV. 319, 320 (1982) ("Indiana has been unable to completely and consistently follow any one method of dealing with children charged with contributory negligence." Consequently, it applies a combination of the Illinois method and the Massachusetts method.).

(6.) Lori Rinella, Children of Tender Years and Contributory Negligence, 63 UMKC L. REV. 475, 478 (1995); see, e.g., Oviatt v. Camarra, 311 P.2d 746, 751 (Or. 1957) (children under 5 incapable of contributory negligence as a matter of law); Yarborough v. Berner, 467 S.W.2d 188, 190 (Tex. 1971) (child below 5 conclusively incapable of contributory negligence); Cox v. Hugo, 329 P.2d 467, 469 (Wash. 1958) (child under 6 conclusively presumed incapable of contributory negligence).

(7.) Rinella, supra note 6, at 479-81.

(8.) RESTATEMENT (SECOND) OF TORTS [sections] 283A cmt. a, at 14 (1971).

(9.) Rinella, supra note 6, at 479; see, e.g., English v. 1st Augusta, Ltd, 614 F. Supp. 1406, 1407 (S.D. Ga. 1985) (child of 3 applying Georgia law); Christian v. Goodwin, 10 Cal. Rptr. 507 (Ct. App. 1961) (between ages 4 and 5); Taylor v. Armiger, 358 A.2d 883, 889 (Md. 1976) (below age 5); Hampton v. Hammons, 743 P.2d 1053, 1061 (Okla. 1987) (boy age 5 1/2 years considered to be of tender years and incapable of contributory negligence); Yarborough, 467 S.W.2d 188, 190 (below age 5).

(10.) See, e.g., Benallo v. Bare, 427 P.2d 323, 325 (Colo. 1967) (age 6 or under); Majors v. J.C. Penney Co., 506 P.2d 399, 401 (Colo. Ct. App. 1972) (6-year-old); De Camp v. Fleckenstein, 181 N.W.2d 47, 49 (Mich. Ct. App. 1970) (minor less than 7).

(11.) Rinella, supra note 6, at 479.

(12.) See Lester v. Sayles, 850 S.W.2d 858, 865-66 (Mo. 1993) (en banc).

(13.) See, e.g., Endicott, 348 S.E.2d 275; Norfolk & Portsmouth Belt Line R.R.v. Barker, 275 S.E.2d 613, 616 (Va. 1981).

(14.) Rinella, supra note 6, at 480.

(15.) 63 N.E. 997 (Ill. 1902).

(16.) Id.; Rinella, supra note 6, at 480; see also Toney v. Mazariegos, 519 N.E.2d 1035, 1038 (Ill. App. Ct. 1988) (citing Tuohy, 63 N.E. 997).

(17.) Tuohy, 63 N.E. 997, 1001.

(18.) FOWLER V. HARPER ET AL., 2 THE LAW OF TORTS [sections] 8.13, at 588 (2d ed. 1986 & Supp. 1998).

(19.) WILLIAM L. PROSSER, HANDBOOK OF THE LAW OF TORTS [sections] 32, at 156 (4th ed. 1971).

(20.) See RESTATEMENT (SECOND) OF TORTS, supra note 8, [sections] 283A cmt. b, at 15-16.

(21.) Rinella, supra note 6, at 481.

(22.) Oscar S. Gray, The Standard of Care for Children-Revisited, 45 MO. L. REV. 597, 600 (1980).

(23.) Lester, 850 S.W.2d 858, 867.

(24.) White v. Nicosia, 351 So. 2d 234, 237 (La. Ct. App. 1977).

(25.) PROSSER, supra note 19, [sections] 32, at 156.

(26.) It stands to reason that the closer a child gets to age 14, the easier it may be to rebut this presumption that the child is incapable of negligence.

(27.) See, e.g., Endicott, 348 S.E.2d 275, 279. In that case, the plaintiff, a 13-year-old boy, was injured while riding his bike along the side of a two-lane road. He and his companion swerved in front of the defendant's vehicle in an effort to reach the other side of the road. The plaintiff was struck by the defendant and seriously injured. The trial court ruled as a matter of law that the defendant was not negligent and that the plaintiff was contributorily negligent. Nonetheless, the Virginia Supreme Court found that the defendant had not met her burden of overcoming the presumption and, therefore, was unable to establish that the plaintiff could have been contributorily negligent.

(28.) David E. Seidelson, Reasonable Expectations and Subjective Standards in Negligence Law: The Minor, the Mentally Impaired, and the Mentally Incompetent, 50 GEO. WASH. L. REV. 17 (1981).

(29.) Gray, supra note 22, at 597. ("There is, however, less agreement that child ... defendants should enjoy the same allowance for their immaturity than there is concerning the allowance for child plaintiffs.") Considerable support exists for the view that defendants should be held to stricter standards than plaintiffs. See, e.g., HARPER ET AL., 3 THE LAW OF TORTS [subsections] 16.2, 16.8 (2d ed. 1986 & Supp. 1998); Harry Shulman, The Standard of Care Required of Children, 37 YALE L.J. 618, 619 (1928); cf. Fleming James Jr., Accident Liability Reconsidered: The Impact of Liability Insurance, 57 YALE L.J. 549, 554-56 (1948) (advocating an adult standard for defendants in insured activities). Although most commentators and courts have hesitated to accept such a distinction, its influence is reflected in the mainstream of modern legal doctrine. See, e.g., PROSSER, supra note 19, [sections] 32, at 156-57; RESTATEMENT (SECOND) OF TORTS, [subsections] 283A, 464 cmt. f (1965).

(30.) Lisa Perrochet & Ugo Colella, What a Difference a Day Makes: Age Presumptions, Child Psychology, and the Standard of Care Required of Children, 24 PAC. L.J. 1323, 1329 (1993). See generally RESTATEMENT (SECOND) OF TORTS, supra note 8, 283A cmt.

(31.) Seidelson, supra note 28, at 21; see also Dorais v. Paquin, 304 A.2d 369, 371 (N.H. 1973).

(32.) HARPER ET AL., supra note 18, [sections] 8.13, at 589; see PROSSER, supra note 19, [sections] 32, at 996.

(33.) HARPER ET AL., supra note 18, [sections] 8.13, at 589.

(34.) Id. [sections] 8.13, at 590-91.

(35.) Id.; see, e.g., Farm Bureau Mut. Ins. Co. v. Henley, 628 S.W.2d 301, 303 (Ark. 1982); Weisbart v. Flohr, 67 Cal. Rptr. 114 (Ct. App. 1968); Vermont Acceptance Corp. v. Wiltshire, 153 A. 199 (Vt. 1931).

(36.) There are many jurisdictions that set age limits on the susceptibility of children to the tort of negligence.

(37.) CHARLES E. FRIEND, PERSONAL INJURY LAW IN VIRGINIA [sections] 2.2.2, at 15 (2d ed. 1998).

(38.) See, e.g., Newman v. Crawford Constr. Co., 799 S.W.2d 531, 534 (Ark. 1990).

(39.) 598 P.2d 392,393 (Wash. 1979).

(40.) See also HARPER ET AL., supra note 18, [sections] 3.20.

(41.) See, e.g., Harrelson v. Whitehead, 365 S.W.2d 868, 869 (Ark. 1963); Elliot v. Jensen, 9 Cal. Rptr. 642, 646 (Ct. App. 1960); Wagner v. Shanks, 194 A.2d 701, 708 (Del. 1963).

(42.) See Arian v. Cervini, 478 A.2d 976, 978 (R.I. 1984).

(43.) HARPER ET AL., supra note 18, [sections]8.13, at 593-94.

(44.) See Kimberly Lionel King, Case Note, 12 FLA. ST. U. L. REV. 935, 935 (1985).

(45.) HARPER ET AL., supra note 18, [sections] 8.13, at 595.

(46.) Id.

(47.) Id.

(48.) Id. at 595-96; see also Seltzer v. Chesley, 512 F.2d 1030, 1036 (9th Cir. 1975); Phillips v. Dixon, 223 S.E.2d 678, 679 (Ga. 1976); Jancura v. Szwed, 407 A.2d 961, 963-64 (Conn. 1978); Marcus v. Everett, 239 N.W.2d 487 (Neb. 1976); Peters v. LeDoux, 491 P.2d 524 (N.M. 1971), modified by Madrid v. Shryrock, 745 P.2d 375 (N.M. 1987); Williams v. Wachovia Bank & Trust Co., 233 S.E.2d 589, 591-92 (N.C. 1977).

(49.) Perrochet & Colella, supra note 30, at 1330.

(50.) HARPER ET AL.,supra note 18, [sections] 8.13, at 591 ("A great deal of confusion exists in the cases on the question of an infant's liability for a tort that is, at the same time, a breach of contract.").

RELATED ARTICLE: ATLA Web site offers family safety information

Thinking about taking your family biking? Or do you need to find out what children's products have been recalled? Then log onto ATLA's "Keep Our Families Safe" Web site.

By keying into http://familysafety. atla.org, Internet users and ATLA members can access information on family safety news or receive a heads-up e-mail on related federal legislation. These are just two of the site's many features.

The site was initiated by ATLA President Mark Mandell to provide parents, children, and other concerned individuals with information about issues affecting the health and safety of those they love.

"We bear no greater responsibility than that which we owe our children to educate them fairly, to raise them wisely, and to protect them physically. The `Keep Our Families Safe' Internet site will help us achieve this important goal," Mandell said.

The newest ATLA Web page is dedicated to presenting helpful consumer news as well as to providing a forum where visitors can exchange information. The interactive site encourages people to share cases that have made improvements in the health or safety of families and children. The site also includes the following features:

* "Mark's Column," a commentary written by Mandell, offers important consumer information on topics ranging from toy safety to health care and incorporates links to Web sites of related safety groups.

* "Publications" offers brochures on preventing senior citizens from falling in homes, protecting children in playgrounds and in pools, buying safe toys, and driving safety.

* "Family and Children Links" connects users to Web sites about such topics as recalled products, child safety, health and medicine, family fun, parenting, and senior citizens.

* "Contact Congress" is the Legislative Action Center. Legislative alerts on important family safety legislation will be posted. Sign up for the "Action Elist" and be notified about those bills, or take the opportunity to find out how your representative voted by searching the congressional directory.

The "Keep Our Families Safe" site is being maintained separately from ATLA's official ATLA NET Web page (http://www.atlanet.org), which continues to focus on legislative, judicial, and related topics affecting members and their clients.

For more information about the "Keep Our Families Safe" Internet site and how you can help, call ATLA headquarters at [phone], ext. 334, or send an e-mail message to carlton.carl @atlahq.org.

Donald J. Gee is a partner with McEachin & Gee, Petersburg, Virginia, and Charlotte Peoples Hodges is an associate with the firm in Richmond, Virginia.3