Can children be sued for damages of injuries?

Such a question was put to a King's County Supreme Court Justice Paul Wooten in New York with respect to an incident which stems from an accident in April 2009 when Juliet Breitman and Jacob Kohn, both aged four, struck an 87-year-old pedestrian, Claire Menagh, with their training bikes. In that accident, two children racing their bicycles (with training wheels) on the sidewalk caused an elderly woman, Claire Menagh, to fall and break her hip. Ms. Menagh died from unrelated causes three months later. Her estate filed a lawsuit against the children as well as their mothers, who were supervising the children while they played.

Wooten wrote said that the girl had been three months shy of turning five and added, “for infants above the age of four, there is no bright-line rule," Wooten added that the girl had been three months shy of turning five.

Wooten also disagreed with the lawyer's assertion that Juliet Breitman should not be held responsible because her mother was supervising the children at the time. Needless to say, the position of the lawyer is bordering on the insane. That is like saying that child who shoots another child to death while under the supervision of his mommy can’t be held personally liable.

Let me quote what one person said about suing the child in the aforementioned case.

“I can understand suing the parents for damages, and holding the parents (who were supervising) legally accountable for damages if it could be found that they were demonstrably negligent...but saying that a child of age four who is innocently riding a bicycle for the first time is mentally and emotionally capable of making legal decisions for themselves beyond the supervision of their parents, and is mentally and emotionally capable of standing trial for those decisions is absolutely ridiculous and a farce!” unquote That observation makes a lot of sense.

While it is obviously proper for the parents to face legal action over their child's actions, subjecting a preschooler to the possibility of a judgment being entered against him or her should not be a legal option in any scenario. In English common law, (decisions made by judges) there is no such vicarious liability but parents, guardians or any supervising adult may be held liable if they owed to the child a direct duty of care or gave the child the opportunity to cause damage.

Every child is a citizen of his country and is governed by the rules and regulations prevailing there. But a child has certain exceptions which makes him different from adults. His incapability to distinguish between right and wrong, lack of farsightedness, innocence and naughtiness makes a child different in the relationship of liability between himself and adults. Minors can be sued if they are old enough to form an intent to commit a particular tort or are sensible enough to recognize the dangerousness of the negligent act and recognize the necessary steps to prevent the act of being done by them.

They can sue just like adults but through their ‘next friends’ who are obviously their parents or guardians. Interestingly enough a child in the mother’s womb who suffered an injury due to an act by an outsider can also sue that person for his injury, of course after coming in the world. If he didn’t survive the injury before being born, that he obviously can’t sue.

In India, there is no existing enactment for the minor in context of torts. But there is a provision in criminal law that a child of less than seven years cannot be held liable for a crime he commits. In Canada, the age is twelve years. But should India and other countries have a provision that states that children can be sued knowing the fact that children are more prone to civil wrongs instead of committing crimes?

The Pearson Committee held in the United Kingdom in 1978 took the view that a child less than 13 should not be held contributory negligent. But in Armstrong v. Cottrell and Morales v. Eccleston, the court stated that children of less than 13 years of age were held liable. Explicitly it is almost the same standard of care, to wit; the ability to do an act according to the age that is applied in contributory negligence cases.

In India and Canada and other countries, a person of 18 years or above becomes an adult. They are then responsible for the crimes and torts they committed and as such. they face the penalties and civil actions thrust upon them for their wrongdoings.

But what about children and teenagers who are between twelve and eighteen years of age? Should they be held personally liable for their wrongful acts when they cause damage to property or injury or death to others?

It would appear that in some countries, there is no minimum age for the existence of tortuous liability. A minor, can be very well sued like an adult, if the action committed by him is in contrast with the reasonable action expected from the child of that age in a particular situation.

Now there is a conundrum. How do we compare his actions with one who is of the same age and expected to conduct himself in a proper manner? What is the standard that the court can use in making the comparison?

In Gorely v. Codd, a 1967 case heard in Canada, Justice Nield ruled that a boy of age more than 16 years was personally liable for shooting another person with an air rifle in the course of “larking about”. In the case of Tillander v. Gosselin, a 1966 case, the High Court of Ontario in Canada, established that a minor can be sued “if he is old enough to form an intention to do the necessary act”.

Where the intention is not the pre-requisite, the court in Mullin v. Richards established that a 15 year old school girl was not negligent when she injured a school friend while fencing with a plastic ruler. The court ruled that a minor is negligently liable if “he failed to show the amount of care reasonably to be expected from a child of that age.” I suppose in that particular case, both children were doing the same foolish thing and as such, each was acting foolishly.

I disagree with the Mullin/Richards decision. Suppose both of them were shooting rifles in each other’s direction and Richards accidentally kills Mullin. Am I to understand from the judge’s ruling that Richards couldn’t be civilly liable because that child didn’t form the intention to shoot and kill Mullens? If that was the law of the land, then a drunk driver couldn’t be held liable for the death of a pedestrian he accidentally kills because of his foolishness in being drunk while driving a motor vehicle because he didn’t form the intent to kill the pedestrian. It doesn’t make sense at all. In the Mullin/Richards, both of the children had to know how dangerous it was for them to fence with rulers, knowing that eye injuries may follow.

In McHale v Watson a Canadian case heard in 1966, a 12 year old boy threw a metal dart at a post but the dart glanced off the post and hit a 9 year old girl in the eye. The boy was found not to be negligent because a boy of 12 years could not be expected to foresee that the dart might not stick into the post and could go off at a tangent and hit someone. If the boy had been seventeen years old, the court would probably have ruled differently.

The capacity of a child must be considered and decided in each case. Obviously, the closer a child is to adulthood, the more the standard of care will resemble that required of an adult. A child who engages in an adult activity such as driving a car or handling a gun may be expected to meet the standard of care applicable to an adult.

In the case described of the 12 year old boy who threw the dart, the boy's father was not found to be liable, even though he had provided the boy with the dart. The court found that the boy was old enough to handle a dart and could reasonably have been expected to do so safely; the eventual misuse of the dart was not reasonably foreseeable as far as both the child and his the father were concerned. This result would have been different if the child had been younger or if the father had provided the child with a gun.

Parents can be held liable if they owed direct duty of care towards their child while he perpetrated a tort. If a parent knows their child is prone to behave in a way which could endanger others, then the parent may have some degree of liability.In my opinion, I feel that the father should have been held liable if he was present when his son threw the dart. Obviously, the injured child was too close to the post. The father of the boy should have asked the child to move far enough from the post before his child threw the dart and this he did not do.

It is obvious that if a child not matured enough to fully comprehend what he is doing, he may exaggerate the facts and subsequently his statements may lack any credibility. So, in those cases where no major witness is available, a remedy must be formulated to avoid various complications in the legal procedures. The remedy is simple enough. The matter should not go to court.

If a child is sued, the action can be started in the usual way by serving the documents on the child, but the case is initially defended on the child's behalf by an adult (usually a parent) who is called a guardian ad litem or litigation guardian. This person defends the proceedings in the name of the child. A writ (a claim) can also be served on a child by serving it on one of the child's parents or guardian.

In summary, let me say this. If the child is under the age of twelve, he or she shouldn’t be sued for a wrongdoing however, the parents can be sued if it is established that the child was in need of supervision and didn’t get it at the time of the incident or if the child’s upbringing was so careless, the child acted in a mischievious manner.

For children over twelve years of age, I am convinced that such children (unless they are mentally incompetent) should be held liable for the wrongdoings they commit if damage, injuries or death ensues.