Thursday, November 04, 2010

The Case the Lawyers Are Talking About

In April 2009, Juliet Breitman, 4, and Jacob Kohn, 5, were racing their bicycles, under the supervision of their mothers, Dana Breitman and Rachel Kohn, on the sidewalk of a building on East 52nd Street. At some point in the race, they struck an 87-year-old woman named Claire Menagh, who was walking in front of the building and, according to the complaint, was “seriously and severely injured,” suffering a hip fracture that required surgery. She died three months later of unrelated causes. Her estate sued the children and their mothers, claiming they had acted negligently during the accident.

That's the story. Here's the ruling: the case can continue, but no ruling has been made yet as to whether the kids are guilty of negligence. Previous cases have set the precedent that a child under 4 is not capable of negligence. Since the girl was nearly 5, the judge allowed it to go forward.

Here's my take: I think children this young are capable of understanding risk. I am 100% sure that if Chase were riding his bike and someone was in the way he would know enough to stop, slow down or try to avoid that person. But then again, if someone walked out in front of him suddenly, or if he were racing and distracted, he might not.

I really don't know what to decide so I am going to punt. Here is my ruling: What is the difference if you sue a 4-year-old? She can't be held liable for monetary damages, can she? Future earnings? You wouldn't seek a criminal penalty, certainly not for this.

So the parents should be held responsible since they were "supervising." They're the ones who should have known that a bike race on a crowded Manhattan street was not a good idea.


Damino said...

I agree that the parents should be held responsible.

You ask a great question re: consequences for child being sued. Ordinarily a judgment proof adult can have wages garnished, his credit majorly screwed up, and it may interfere with job applications and other things requiring a background check. I've never heard of a money judgment entered against a toddler, but I assume the long-term effects can potentially be the same even if that seems bizarre.

I'm pretty tough on teenagers who commit crimes and take other reckless actions (like providing loads of unsupervised and underaged kids with booze on June 7, 1996). But especially when you're dealing with an issue requiring a snap decision and good motor skills, I just can't hold a 4 year old legally responsible for his conduct. A 10 or 12 year old is very different, but I don't think there should be any defendants in pre-school.

Reissberg said...

Nice June 7, 1996 reference.

Paul said...

What if bringing a lawsuit against the child is the way to win a financial judgment from the parents?

If they only sued the parents, then they blame it on the kids. If they find the kids are responsible, then would the parents have to pay the penalty?

Damino said...

Practically speaking, the parents are going to pay the judgment entered against the child, unless it's really exorbitant and/or the parents simply don't have the money. You're of course right that naming the child as a defendant can be used to put pressure on the parents to settle.