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.