From a restitution point of view, suing the child is more productive than suing the adult. The adult has already lived half their life, and half their earning potential is beyond reach. But the child can be saddled with a debt for his entire earning life, and the plaintiffs could conceivably wring more compensation for their pain and suffering from a child than from an adult. The adult has known assets; the child might grow up to be Justin Bieber, and the sky is the limit. By suing the child, you could sipon off earnings before they are wasted on things like cars, education, a house or a family. And it would teach the defendent the value of a dollar, by leaving him with fewer of them. A win-win for everyone concerned.
We (as a species) have an unhealthy urge to always place blame on someone or something when bad stuff occurs. Sometimes there’s no appropriate target for our blame, and shit just happens. I would no more blame a 4 year old for acting like a 4 year old than I would blame a hurricane for hitting my house.
True. And especially if their mom and dad have told them it’s okay. And it’s not like an obvious wrong like, say, stealing. Riding your bike is okay, and if you’ve never been told that this is dangerous to do on the sidewalk and mom has let you do it, why would it even occur to you to point out that it’s not? It’s strange that we’d want a 4 year old to be more responsible than the parent in the situation.
Prime example of courts wasting time.
When I was 9 years old, I was playing tag with some kids in my neighborhood. They took shelter in my parent’s shed and barricaded themselves in so I couldn’t reach them.
I threw a log through the window so I could get in and tag them =O.
Now I consider myself to be a reasonably responsible and professional appearing adult. There is no way in hell that a four year old should ever be held responsible for his or her actions.
The parents were there, according to the report, that makes it extra strange not to just sue them directly. Hell, even if it happened out of their sight (with an older sibling supervising them in a safe neighbourhood) then the parents should still be the ones liable. Age 4, 5, 6, 7, 8… after that it gets a little fuzzy, depending on what the kid did, but 4 is still well within the age where I’d say ‘if anyone’s going to be held accountable, it’s the parents.’
Negligence has to include the idea that you fully understood (or had the means to understand) that such an outcome was a possible result of your actions, surely? A 4-year-old simply wouldn’t. Fall over, get up, Mommy kiss it better! Even an 8-year-old wouldn’t get it.
Their parents would understand, however. Hence most parents keeping their kids out of the way of other people (especially ones who can’t move out of the way so quickly) as they learn to cycle. Whether or not they were actually negligent is another matter (we don’t know), but they’re certainly more valid targets for a claim.
Forty-six posts and nobody has posted New York law?
Civil law is most definitely not my cuppa tea, and New York is definitely not a state I am licensed in.
That said: so far as I can tell, in New York, the parent is not liable for the torts of the child merely because the child is underage and the parent is the parent. (“Generally, a parent is not liable for the torts of his or her child,” DeRosa v. Smith, 729 NYS 2d 191 (NY App. Div. 2001), quoting Steinberg v. Cauchois, 293 NYS 147 (NY App. Div. 1937). Interestingly enough, Steinberg v. Cauchois was itself a case (in 1937!) relating to damages inflicted by a child riding a bicycle down the sidewalk. In that case, the jury delivered a judgment against the parents and the appeals court reversed, finding that parents aren’t liable for the willful misconduct of their kids, unless:
[ul]
[li]It’s a respondeat superior situation and the child is acting for the parents, as an employee might[/li][li]If the parent ratifies the conduct at some later point, by, for example, accepting the benefits of the act[/li][li]If the parent entrusts an instrument (say, a gun) to the child that by its very nature in a child’s hands is dangerous[/li][li]If the parent fails to restrain the child in a situation where the parent knows the child has a tendency to engage in conduct which endangers others[/li][/ul]
Not being a civil lawyer or a New York lawyer, I welcome correction on this analysis.
According to your summary, you are citing a case dealing with “willful misconduct”, for the details of exeptions to the general rule. This is a case of negligence. Not the same sort of tort. There is no allegation, as far as I know, that the kid deliberately ran someone down in this case.
That being said, I have no idea if one can impute the damages to the parents for a child’s negligence in NY, or if there are any recognized exceptions to the general rule. I suspect all along that the more likely route to a possibly-successful cause of action, is to sue the parent for neglience in failing to adequately supervise the kid.
I think I was misremebering something. I still think the posint of suing the child in its individual capacity was to get at the parents’ insurance, though your probably right, it was not on a theory of imputed negligence.
Actually, the “wilfull misconduct” came from my head, not the case, and it was an error; Steinberg v. Cauchois refers simply to tortious conduct.
I think you’re right. Like I said, I was misremembering a case I worked on ten years ago as a summer associate. A kid broke his ankle as the result of some rough-housing with his friends. The plaintiff was going after the friend’s parent’s homeowner’s insurance policy. For some reason, we were devoting a decent amount of time on the issue of a parent’s responisbility for a minor’s negligent act. Obviously, I don;t remeber it well and should have looked it up before positng. I stand by my intitial assessment though, that this is a maneuver to get at an insurance policy.