Negligence and Young Children

Most Slaw readers will have read from one source or another that a New York trial court has ruled that a child still four years of age can be sued for negligence. The child defendant was riding a bike with training wheels when she and her friend ran into an old woman, knocking her down; the fall broke the woman’s hip. (The woman died three months later of unrelated causes.) The story in the New York Times provides the basic facts.

The judgment, Menach v Breitman, is available as a photocopied image in PDF. I’ve OCR’d that judgment to produce a text-based PDF.

The nub of the decision is here:

The sole issue before the Court is whether an infant aged four years, nine months, is non sui juris[tippy title=”” reference=”” header=”off”](Latin, Not his own master.) A term applied to an individual who lacks the legal capacity to act on his or her own behalf, such as an infant or an insane person.[/tippy], incapable of negligence as a matter of law, under the facts presented…

Defendant-movant correctly notes that infants under the age of four are conclusively presumed incapable of negligence (Verni v Johnson, 295 NY 436, 438 [1946] ). Defendant-movant Juliet Breitman, however, was over the age of four at the time of the subject incident…

For infants above the age of four, there is no bright line rule, and “in considering the conduct of an infant in relation to other persons or their property, the infant should be held to a standard of care . . . by what is expected of a reasonably prudent child of that age, experience, intelligence and degree of development and

It struck me — as it did most commentators — that this was an unusual, not to say bizarre, rule. The notion of applying the apparatus of tort law (foreseeability, standard of care, reasonable four-year-old) to a child under five simply doesn’t make sense to me for a variety or reasons, among which would be the variability in the development of children, the slow onset of a meaningful capacity to foresee, the unreliability of the capacity to govern actions with reason, etc.

And then there’s the fact that, though it would seem unlikely in the case, there is the possibility of a money judgment against a four-year-old, which, unless the child were wealthy somehow, will either be meaningless or a sword of Damocles hanging over the child, waiting to separate her from the first umpteen thousand dollars of her earnings later in life. (Or would a parent be responsible for any damages payable by a child as a function of an obligation to provide necessaries or something akin to that? I suspect that the presence of insurance policies will distort the apparent behaviour of the parties, of course. My knowledge of tort law is paper thin.)

It’s rare, I suspect, that a very young child gets sued directly for negligence. Much more common will be cases where, as a defence, someone who has injured a child pleads that the child was contributorily negligent. And there, of course, wealth is not an issue: the award is negative, carving a portion out of the damages payable by the main defendant.

All this got me wondering how we deal with child negligence.

It seems that we don’t have a bright line like New York. A very cursory bit of research turned up what might be the ruling case of McEllistrum v. Etches [1956] S.C.R. 787, which dealt with a six-year-old, an excerpt from the headnote of which puts our rule succinctly as:

It cannot be laid down as a general rule that a child of 6 years is never to be charged with contributory negligence… The proper rule is that where the age is not such as to make a discussion of contributory negligence absurd, it is a question for the jury in each case whether the infant exercised the care to be expected from a child of like age, intelligence and experience.

This rule got applied very recently in a Nova Scotia case, Marshall v. Annapolis County District School Board 2009 NSSC 378, where:

The plaintiff says that the issue of contributory negligence of Jonathan Marshall who was four years, four months old at the time of the accident should be withdrawn from the jury because he was not capable in law of being contributorily negligent.

The court, without requiring any evidence as to the child’s actual capacity, withdrew the issue from the jury. In so doing he referred to a BC case (Sheasgreen et al. v. Morgan et al., [1951] B.C.J. No. 136 (B.C.S.C.)) that, in part, put the matter thus:

While mere age is not in itself the test, but rather the capacity of the infant to understand and appreciate, certainly it may, and often is, obvious to the trial Judge that by no stretch of the imagination could contributory negligence be imputed to the infant.

For what it’s worth, I prefer these tests — “absurdity” “no stretch of the imagination” — to any age-based bright line.

Our understanding of children and childhood undergoes constant change, and, as with most other tort rules, this one allows current understandings to be reflected in legal decisions.


  1. The Canadian tests seem on paper (or on the screen) to be compatible with the New York State test: no bright line, no specific age below which a child cannot be negligent (NY says four is that age), consider the particular child and the particular activity.

    It still seems bizarre to me to hold this particular child negligent (or at least to refuse to strike out the claim; it’s not clear to me that actual negligence has been found.) Do the judges have any familiarity with kids that age? What their parents tell them (look where you’re going) and what they do (wheeee!) are two different things.

    No doubt Simon is right in pointing to insurance as the incentive – but hard assets may make bad law…