These are all reasons to absolve the defendant of liability. They are not reasons to dismiss a case. Folks here might be hung up on a bit of procedure. Dismissing an action is difficult, and when considering whether to do so, a court takes all facts in dispute and views them in a light most favorable to the plaintff. In other words, when considerng this motion to dismiss, unless the plaintiff concedes that the kids didn’t have enough time to see her, the court won’t consider that.
It may very well be the only way to reach the parents on imputed liability. I would also wager that settlement discussion got a little more robust after the decision on the motion to dismiss.
Why do they need imputed liability? They have direct liability - failure to supervise. If the plaintiffs fail to establish that the parents were directly negligent in any way, I seriously doubt they would ever succeed in proving that they should be held liable by imputed liability - and it has the potential to piss off any jury hearing the matter.
To my mind, it’s an irrelevant long-shot claim which has the potential to sabotage the more meaty claims available.
This isn’t quite correct. Whether or not the kid is found liable or not isn’t the point. The point is by allowing the suit, precident is established. A “not guilty” verdict won’t void the precident. It’s already been established.
As for the case, no one expects this to go to court. The idea is to settle out of court, like it usually happens. No lawyer wants to go to court over this. They want the insurance company (does homeowners cover this?) to settle out of court.
I agree with the judge in the sense, that if a five year old could be sued, why not a four year old. Does a five year old really have any better grasp than a four year old?
There’s really no good reason to say a five year old can be tried while a four year old can’t
It’s not like turning 18 when a whole slew of legal obligations go along with your birthday celebrtions
To be fair, their counsel’s choice of the “liar, liar, pants on fire” defense will be of little help. And I, for one, fully agree with the judge’s stated opinion of “neener, neener”.
Wonder if the kid will be tried by a jury of her peers.
So you say, but what makes you so sure? You have not proved that assertion, nor defined reasonableness. Everything is relative; compared to adults, no, kids are not reasonable. But that was not the issue before the court. Rather:
Do you mean young children are 100% unreasonable, and have no realistic understanding of the real world at all? Or are they partially reasonable, less so than adults, but more than entirely random behavior? I think the latter is far more in line with human nature, and by that they are to be judged.
My earlier statement is not my opinion, but legal reality: normally, children are judged on what a reasonable person of their age and condition would do. So a 5-year old will be judged on what a reasonable five year old would have done. Hence the lawsuit. (I of course am SUPER reasonable, and when I was five I never ran my tricycle into octogenerians; so there you go. Dumb as kids can be, I managed that much.)
A real lawyer should post here and put this thread to sleep. Juries tend to follow orders, and they are not above assigning liability to a child. Rules are rules, and very young children have been found liable in several cases in the past.
A real lawyer can verify this, but the traditional rule is that a parent is not normally legally/financially responsible for liability of their children. I admit, it sounds like that would be so, but it is not so, for counter-intuitive but sound reasons. Tots or tater tots, young or old, each person’s actions are their own and bear responsibility if they hurt someone. Parents are not liable unless they got involved somehow in causing the negligence, as has already been mentioned.
If a four-year-old, why not a three-year-old? Two?
That’s exactly what I said. Children are, we hope, learning reason. When they have made sufficient progress to be held truly accountable for their actions, they are then adults. Until then, we hold other adults responsible for them.
Quoth whole bean:
Ah, yes, of course, that was a brain fart on my part.
The site you posted above contradicts this.
[Emphasis]
You simply have no way of knowing that. This is not an incidence of *per se * liability.
Again, why not? If the parents’ conduct was reasonable, then you wouldl not be able to establish their negligence. But if, if, a jury finds that the child’s conduct was not reasonable for an ordinary, prudent four-year old (did I just type that?) and thereafter finds the child liable for damages arising from his negligence, then that liability can be imputed to the parents.
Then put your face on the back of a bus and start doing this yourself.
“Not guilty” is not in the universe of outcomes for this case. The only precedent is that a four-year-old may be sued. There is no precedent that establishes a four-year-old liable, just capable of being liable.
The jury just has to judge the child’s behavior in comparison to a reasonably prudent 4 year old of like experience.
Really, though, most jurisdictions hold that children under 5 are absolutely incapable of negligence. West Virginia uses the “rule of sevens”. 0 to 7 are incapable of negligence. 7 to 14 are presumptively incapable of negligence, but that presumption can be overridden with facts. 14 and up are held to the standard of a reasonably prudent person of like age and experience.
Yeah, if. If pigs could fly, we could get bacon with a fly-swatter. 
The point here is that while under whatever tough rules may exist for turfing cases on a summary basis, this case remains un-turfed on this point (a decision I disagree with, but whatever), I would not give it much of a chance that any jury is going to find that a four year old racing their toy down a side-walk was “behaving unreasonably for a four-year-old”.
The possibility that the parents get dinged for allowing them to do so is much higher, if they ought to have known that dangers for others lurked as a result.
Where a jury finds that the parents reasonably allowed their kids to race down the sidewalk with their toy in all the circumstances, the case is done like toast.
Naw, I think I’ll stick to poking fun at what I see as silly lawyering on the 'net, if it’s all the same to you. 
You honor, my clients would like to enter a plea of “nana-nana boo-boo, stick your head in doodoo”.
It seems to me that this encourages the defense to take it all to way to court, since it comes pretty close to handing them an automatic win.
I’m sure they do not have any such comprehension.
My five year old has no understanding of death. I have really tried to explain to her that it is not something that can be undone, but “forever” is not a concept a kid can grasp, heck, they can hardly understand “a little later”.
A kid that age would know that something hurts, but not know to what degree. Hitting an old lady with the bike is no more serious than getting a boo-boo.
There was once correction according to the website
I think it makes an emotional difference that it was 3 months and not 3 weeks. I have no idea if there is any legal significance, though.
The woman died for some other reason according to the NYtimes.
Not that it changes the basic question.
The language of the OP’s quote implied that the injury played a part in her death. Given this new information, I see no reason why the estate should be permitted to sue the mother or the child.