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4 ½ Year Old Has the Mental Capacity to be Held Negligent

New York City sidewalkNew York City sidewalkNew York City sidewalkNew York City sidewalkMedical Malpractice AttorneyTwo 4 ½ year olds were racing their bicycles down a New York City sidewalk one afternoon when they accidentally crashed into an 87 year old woman and knocked her over. The woman required surgery after suffering a broken hip from the fall, and tragically passed away three months later. The family of the elderly woman is suing- not just the mothers of both children, who were present when the crash occurred- but also the children themselves.

In Menagh v. Breitman, the lawyer for one of the children argued that his 4  ½ year old client could not be held liable for negligence, and tried to get the case for that child dismissed.

James P. Tyrie first argued that his client should be treated as non sui juris (incapable of negligence) because of her age. There is a bright-line rule in New York that children under the age of 4 are incapable of being held liable for negligence.   However, there is no established law regarding negligence for children over the age of 4, and Tyries client was 4  ½.

Justice Paul Wooten felt that there was not enough evidence presented to increase the age of the bright-line law, and that cases of negligence brought against children over the age of 4 should be decided by a jury.Using language from the 1928 case of Camardo v. New York State, as quoted in Gonzalez v. Medina in considering the conduct of an infant in relation to other persons or their property, the infant should be held to a standard of care . . . by what is expected of a reasonably prudent child of that age, experience, intelligence and degree of development and capacity.

Tyrie also argued that his client couldn’t be held responsible because a parent was present to supervise the child. Justice Wooten concluded that the presence of a parent does not automatically eliminate a child’s negligence.Wooten stated  Because a child above the age of four will only be non sui juris if it is impossible under the circumstances to draw any other inference, parental supervision is unlikely to affect the sui juris status of a child above the age of four unless the parent has taken an active role in encouraging the child’s conduct.The fact that the mother was supervising her daughter racing her bike down the sidewalk does not mean that the mother actively encouraged the child to strike the elderly woman with her bike.

Justice Wooten brought up an example of a child running across the street.   A prudent 4  ½ year old child most likely knows the dangers of crossing the street without looking both ways.If an adult is present and that child decides to cross the busy road on his own without looking, there is a possibility that the child was negligent in doing so. The only way that child would automatically be non sui juris is if the adult told the child it was safe to cross the road, or encouraged the child to cross the road. The child could reasonably infer that it was safe to cross the road because a trusted adult told him/her to.

Justice Wooten’s ruling does not mean that the child is guilty of negligence for striking the 87 year old woman with her bike, but that it will be up to a jury to determine if she is negligent.

For additional articles on this case, check out The New York Times article entitled 4-Year-Old Can Be Sued, Judge Rules in Bike Case.

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Jeff Korek

Jeff S. Korek

Senior Trial Partner​

Jeff S. Korek joined Gersowitz Libo & Korek, P.C. in 1992 as the Senior Trial partner. Known for his meticulous preparation and dedication to his clients, Jeff has obtained some of the state’s highest verdicts and settlements.