April 2009, Juliet Breitman and Jacob Kohn, who were both 4, 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.
10.31.2010
Lawsuit of the Week Part 2
On the American Bar Association's blog ABAJournal commenters are buzzing about last week's ruling in New York that a negligence suit against a 4-year-old in the death of an 87-year-old woman can proceed. The New York Times published some of the details as well. For those who don't want to follow the links, a quick summary from the Times piece:
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This is how the German BGB would handle minor's liability:
ReplyDelete"Section 828
Minors
(1) A person who has not reached the age of seven is not responsible for damage caused to another person.
(2) A person who has reached the age of seven but not the age of ten is not responsible for damage that he inflicts on another party in an accident involving a motor vehicle, a railway or a suspension railway. This does not apply if he intentionally caused the injury.
(3) A person who has not yet reached the age of eighteen is, to the extent that his responsibility is not excluded under subsection (1) or (2), not responsible for damage he inflicts on another person if, when committing the damaging act, he does not have the insight required to recognise his responsibility."
Will they ignore responsibility and follow a concept of strict liability? Or will the judges really look into the matter and try to find out if the minor was able to maintain the necessary care?
If they try to judge according to the amount of care the child is capable of, they would overstress human responsibility at an age where you don't even know what a human being is.
When negligence is "the failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation", I would ask how reasonably prudent a 4 y.o. child can possibly be?