Monday, November 01, 2010

Training Wheels and Hot Coffee

By Mike Dorf

Last week brought news that a child under the age of 5 can be sued for negligent operation of her training-wheel-equipped bicycle.  (Racing with another tyke, she crashed into an elderly woman.)  The case will likely be cited repeatedly as another example of American tort law out of control.  It could even displace the infamous "hot coffee" case against McDonald's.  If so, that will simply show that a vivid story trumps reality.  And that's true for the McDonald's case too.

Last week's ruling did not hold that Juliet Breitman (age 4 years, 9 months at the time of the incident) was in fact negligent in the operation of her bicycle.  It only held that earlier cases establishing a bright-line rule that children under four cannot be held negligent doesn't apply to children past their fourth birthdays.  Is that right?  Maybe.  When my kids were 4+, I trusted them enough to accomplish simple locomotive tasks, including riding their bicycles in a playground while being closely watched by me or another responsible adult. To put the issue in perspective, if a 6-month-old infant spilled apple sauce on the floor, you would just clean it up but if a 4-year-old were running with an open container of apple sauce, you'd stop her and tell her to be more careful.  There is some age below which a child is incapable of being careful, and thus should be incapable of violating a legal duty of care.  Put in these terms, 4 seems about right as a threshold for saying that a child can, at least in theory and at least in some contexts, be held accountable.

Nonetheless, the case will likely become (and based on some perusing of comments on various websites, appears already to have become) a poster toddler for tort reform.  Yet it should probably be more nearly the opposite.  Let me explain.

Julia's mother is also a defendant for her own alleged negligent supervision, so regardless of whether Juliet acted negligently for a 4-year-old, her mother will be on the hook for damages if that supervision was negligent.  To my mind, the real issue here is whether parents have vicarious liability for the torts of their minor children.  In some jurisdictions they do.  In such a jurisdiction, also holding children liable for their own negligence could, I suppose, lead to over-deterrence of valuable (or at least fun) activity by minors, though it's hard to see that as a serious downside of a rule that in this context protects elderly pedestrians from children racing their bicycles on the sidewalk.

But here's the kicker.  New York appears to be a jurisdiction in which parents are NOT vicariously liable for all of their children's torts.  (A useful discussion can be found here.)  Accordingly, the finding that a 4-year-old can be liable for her own negligence will typically make it somewhat less likely that parents will be held liable than they would be if a 4-year-old were deemed legally incapable of negligence.  After all, if a child is completely incapable of exercising caution, then the child must be constantly supervised.  A child who cannot be expected to exercise any care surely should not be permitted to ride a bike except perhaps with an adult constantly hovering over her.  Conversely, a parent does not necessarily act negligently by permitting a potentially responsible child some leeway.  And so, the holding that a very young child is capable of negligence--and thus of exercising care--will have the natural consequence of making it harder for plaintiffs in a state like New York to prevail against parents on a theory of negligent supervision.  Only rarely will a minor have assets that make suing the minor worthwhile, and so in a typical case, the minor's capacity for negligence will undercut the plaintiff's case against the parents.  (Whether this is a typical case I cannot say, because there has been no factual development yet.)

If Menagh v. Breitman becomes as infamous as the McDonald's coffee case, that will be fitting--for that case too is really an example of the opposite of the phenomenon for which it is usually invoked.  As explained in Carl Bogus's book Why Lawsuits Are Good for America (and here), the case against McDonald's was solid, and if anything, the reduction of the judgment on appeal ended up under-compensating the plaintiff.  But don't expect the truth to get in the way of a good story.


tjchiang said...

You are ignoring homeowners insurance, which is almost certainly where the real money is. If the kid is covered by homeowners insurance, the insurance company will be the one that directly pays, and the parents indirectly will be de facto vicariously liable through paying higher premiums. So it is just not true that holding the child liable in negligence somehow makes the parents better off.

Michael C. Dorf said...

Accoprding to the blog of the PI lawyer to which I linked, homeowners' policies vary substantially on whether they cover minors' torts off premises. But given that this was a motion to dismiss pre-discovery, the plaintiff's lawyers likely wouldn't yet know the scope of coverage. I agree that if the policy applies, that makes a big difference.

Sam Rickless said...

Part 1 of 2:

Hi Mike. I have a different take on the issue. I don’t believe that we should think of the tort system (particularly, negligence torts) as justified on consequentialist grounds. Negligence occurs when there is failure to exercise a (non-consequentialist) duty of care. Duties apply to those who are capable of discharging them, and duties of care can be discharged only by those who have sufficient knowledge and rational capacity to understand the consequences of their actions (including likelihood of serious injury). It seems to me beyond question that four year olds do not have the relevant combination of knowledge and rational capacity, and that it would be unreasonable to expect them to develop such a combination (even with parental assistance). Duties of care therefore do not apply to four year olds. They are, in the relevant sense, non sui juris.

The Menagh decision relies on an 82 year old precedent in applying what amounts to the “reasonable child” standard. The standard appeals to “what is expected of a reasonably prudent child of that age, experience, intelligence and degree of development and capacity”. The standard presupposes that it is possible for a four year old to be “reasonably prudent”. I take it that “prudent” in this context doesn’t just have the more general meaning of “wise” or “sagacious”, but rather means something like “careful in providing for the future”. And so we are back to the problem that four year olds are not capable of prudence in the relevant sense.

Sam Rickless said...

Part 2 of 2:

I am concerned that the relative ease with which many of us are tempted to apply the “reasonable person” standard to four year olds may have something to do with the ability we have to project ourselves hypothetically into the relevant situation. We confuse the question, “What would a reasonably prudent child do?”, a question that presupposes a falsehood and therefore has no answer, with the question, “What would a reasonable person in the child’s position do?”, a question that has an answer, but also happens to be irrelevant.

So I don’t think that the basic issue is whether parents should be held vicariously liable for the torts of their four year olds. Their four year olds are not able to commit torts, so there is no question of vicarious liability. To me, the real (and only) question here is whether the four year old’s mother was negligent in her supervision of the child. The question is whether she failed to discharge her duty of care, which involves a duty to warn her child (who, at the age of four, is capable of following directions of this sort, at least in the short term) not to engage in potentially dangerous behavior of easily identifiable sorts, such as racing on sidewalks or in the street. The mother is the only individual who should be even potentially on the hook here. If this means tort reform, then I am for this kind of tort reform.

(The McDonalds case is a completely different matter. I am definitely in favor of large monetary damages for the predictable and extremely serious consequences of failing to discharge a duty of care.)

AF said...

Like Sam Rickless, I've always bought the defense of the McDonalds coffee case, but I'm not buying this.

The reason these cases become "poster toddlers" for tort reform is not that they are inconsistent with the basic principles of tort law, but, on the contrary, that they are consistent with these principles, but seem wrong to many people, and thus open the principles themselves to question.

But in defending the decision, you seem to rely on the very principles that the case calls into question.
For example, you argue that it seems right to hold a 4-year-old child legally accountable for negligence because parents reasonably expect 4-year olds to be able to control their behavior in some contexts. But that assumes that legal accountability in personal injury suits (presumably for the full cost of the defendant's injuries) should be more or less co-extensive with the defendant's ability to control his or her behavior. That principle is questionable in this context, on several grounds -- eg, as Sam Rickless argues, that 4-year-olds lack the ability to appreciate the full consequences of their actions even if they can control them to an extent, or that we might reasonably expect adults (even elderly adults) to take full responsibility for avoiding errant 4-year-olds, at least in some contexts, or that the deterrent (as opposed to the overdeterrent) value of the rule is unlikely to be very significant in light of the strong incentives that parents bear to supervise their children properly so as to avoid injury to their children and (far less significantly) liability to themselves.

Similarly, your arguments about negligent supervision appear to assume that parents ought to be held legally accountable for negligent supervision to the extent they fail to prevent their child from doing something for which the child cannot be held legally accountable ("After all, if a child is [legally considered] incapable of exercising caution, then the child must be constantly supervised.") Here, the principle seems to be that *someone* must be subject to liability (at least in principle) for injuries suffered by pedestrians at no fault of their own. But again, that principle seems suspect in this context. I see no reason why shielding children from liability for bike accidents should lead to the expansion of liability for parents. It strikes me as perfectly reasonable for parents to let their young children ride their bikes in areas where doing so is generally safe (eg, a public park), irrespective of whether their kids can be held liable for negligence. Again, the intuition is that, at least in some contexts, adults should bear absolute responsibility for avoiding collisions with small children.

Incidentally, it's interesting that the plaintiff here is elderly, and that Professor Dorf defends the ruling as protecting *elderly* pedestrians from children bearing bicycles. It's true that protecting elderly pedestrians from being run over by 4-year-olds seems much more justifiable than protecting non-elderly adults. But at the same time, elderly adults enjoy universal health care in the form of Medicare. As a taxpaying American, I'm glad to bear the cost of insuring elderly pedestrians for the injuries suffered from 4-year-olds, if doing so leaves 4-year-olds free to ride their bikes without being sued.

Michael C. Dorf said...

In partial response to Sam and AF:

1) It was not and is not crucial to my position that the line be drawn at 4. The judge acknowledges that the law irrebuttably presumes that a child under 4 is incapable of being negligent--because incapable of complying with a duty of care. The ruling is simply that a child of 4 or older could, in theory, have that capacity. I did not say that any time parents hold children accountable, so should the law; I said that if a child is old enough to be held accountable for actions by a parent, then that makes it at least possible for the law to treat the child as responsible. Thus I used words like "maybe" and "at least in theory" in my post.

2) The conduct alleged in the complaint did not take place in a park or some other place where bike riding is "generally safe," but on a sidewalk where a great many pedestrians are foreseeably present. I focused on the elderly because the risk from a fall is especially great for the elderly. To my mind, that fact makes this an especially good case for supervisory liability: A 4-year-old cannot be expected to take account of the risk to an elderly person from a broken hip due to a collision with a bicycle; an adult can be.

AF said...

Professor Dorf: I realize that this case involves bike-riding on the sidewalk and don't disagree that the parent may be subject to liability for negligent supervision, depending on the specific facts. My point was that (contrary to my understanding of your argument) the child's immunity should not affect the standard for determing the parent's liability.

As I understood your post, you were saying that holding 4-year-olds immune from negligence claims would logically imply that it should become easier to hold parents liable for negligent supervision --because "if a child is completely incapable of exercising caution, then the child must be constantly supervised."

I disagree with that logic. It strikes me as perfectly reasonable for the law to recognize situations in which a child cannot be held liable for negligence, but where it is nevertheless reasonable for parents to let the child ride her bike -- for example, in a park, where adults can reasonably be expected to look out for 4-year-olds on bicycles.

Whether the parent should be held liable depends on an analysis of the risks involved in a particular situation. This may implicate the extent to which the 4-year-old is *actually* capable of exercising care in riding her bike, but seems to have very little to do with whether she should be subject to suit in her own right as a matter of law.

Michael C. Dorf said...

AF: I don't think we're really disagreeing. My point is that to the extent that a child's incapacity for exercising due care entails the need for parental supervision, the finding that a child can exercise due care undercuts the likelihood of finding negligent supervision. You (and Sam) say that a child could be incapable of exercising due care and yet the parents would still not be liable for negligent supervision. I agree that this is a logical possibility, but the tendency still goes in the way I said.

Sam Rickless said...

"I did not say that any time parents hold children accountable, so should the law; I said that if a child is old enough to be held accountable for actions by a parent, then that makes it at least possible for the law to treat the child as responsible. Thus I used words like "maybe" and "at least in theory" in my post."

I understand that your statements were hedged in the original post, Mike. I should say that I was reacting at least in part to that aspect of your post that spoke of a vivid story trumping reality. To me, the most significant aspect of Menagh is that the ruling rejects the claim that four year olds are non sui juris. I think this is likely to be the part of the decision that makes it most vivid. It is also the part of the decision I take to be most wrong-headed. This is largely why my comments focused on the age issue.

But leaving the age issue aside for the moment, I'm still not convinced by what you say in the quote. Part of the reason for this is that I'm not sure I completely understand what you mean by "hold accountable" here. For example, if my (very young) child races her tricycle into an elderly pedestrian, I might take her aside and explain that this kind of activity, though fun, is potentially dangerous and should only be engaged in when there is enough room and time to maneuver around obstacles (though not exactly in these terms, of course). I would not similarly take my dog aside and have the same conversation. When I take her aside, am I holding her accountable? If I am, then I think it does not follow that the law should treat her as a potential tortfeasor. On the other hand, perhaps you think that holding accountable involves more than this: it means holding her morally responsible, in a way that suggests that she has failed to exercise a relevant duty of care. In that case, I agree with your conditional statement, but I continue to hold that the antecedent applies only to children who are much older than Ms. Breitman (at least seven, possibly even older).

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