A Negligent Act By A 4-Year-Old Riding a Tricycle?

Anyone who has taken 1L Torts class is not surprised that a 4-year-old can be sued in a court of law.  In fact, anyone versed in the law might not be shocked and appalled should a 4-year-old be found guilty in a tort action.  How could one forget the case of Garratt v. Dailey, where young Brian Daley (age five years, nine months) could have deliberately pulled out a wood and canvas lawn chair from under an adult as she started to sit.  If he had realized that to a substantial certainty, the contact or apprehension would result, young Brian would have the intention necessary to make him liable.  The case was based on the intentional tort of battery.

But what about in a case of negligence? The Restatement, Third, of Torts: Liability for Physical Harm (Basic Principles) §10(b) sets forth the following: “A child who is less than five years of age is incapable of negligence.”  Most states follow this formulation, and even the minority of states that follow the Illinois Rule, do not find children below the age of seven negligent under any circumstances.  Reconcile this with some states holding that all drivers, even minors, are bound by an adult standard of care.  Those states say that a minor who engages in an adult activity that is dangerous, i.e. driving an automobile, is charged with the same standard of conduct as an adult.

Is riding a bike with training wheels considered an adult activity that is dangerous?  When is the last time you saw a grown adult riding a tricycle?  Judge Paul Wooten of State Supreme Court in Manhattan, New York recently stated that a 4-year-old who caused injury to another while riding a tricycle could be sued for negligence.  Maybe it is not such a big deal, because all the judge is saying is that there is a cause of action.  The judge has not found the minor guilty, which would be unheard of based on precedent.

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