Sue the bastards!

October 29, 2010 6:06 AM

“A parent’s presence alone does not give a reasonable [four-year-old] carte blanche to engage in risky behavior." So said a NY State Supreme Court judge in his ruling that four-year-olds can be sued. Cue Dora The Litigator.
posted by stupidsexyFlanders (136 comments total)

Show me a 4-year-old that isn't negligent.
posted by b1tr0t at 6:12 AM on October 29, 2010 [19 favorites]

> Citing cases dating back as far as 1928...

...including, of course, the landmark Finders v. Keepers ruling.
posted by The Card Cheat at 6:12 AM on October 29, 2010 [67 favorites]

I think this is an alright precedent. Those kids did kinda kill that lady, but the mother should be held responsible too. I don't buy the "but they're kids, kids are always trouble!" argument.
posted by fuq at 6:16 AM on October 29, 2010

There are plenty of mental health defenses:

A study published Monday in The Journal Of Child Psychology And Psychiatry has concluded that an estimated 98 percent of children under the age of 10 are remorseless sociopaths with little regard for anything other than their own egocentric interests and pleasures.


Youthful Tendency Disorder (YTD), a poorly understood neurological condition that afflicts an estimated 20 million U.S. children, is characterized by a variety of senseless, unproductive physical and mental exercises, often lasting hours at a time. In the thrall of YTD, sufferers run, jump, climb, twirl, shout, dance, do cartwheels, and enter unreal, unexplainable states of "make-believe."
posted by empath at 6:17 AM on October 29, 2010 [15 favorites]

Okay, I can see how you'd want to sue the parents, I guess, but what do you expect from suing a four-year-old? 25% of her toy box?
posted by echo target at 6:17 AM on October 29, 2010 [1 favorite]

...including, of course, the landmark Finders v. Keepers ruling.


You may have forgotten that those results were overturned by the Supreme Court thanks to the precedent set in Rubber v. Glue, in which the accusations levied against the party of the first part were discovered to rebound and adhere to the party of the second part.
posted by Shepherd at 6:17 AM on October 29, 2010 [56 favorites]

Interesting to note that the parents of the 4 y.o. boy "did not seek to dismiss the case against them."
posted by ericb at 6:18 AM on October 29, 2010

Just look at the little copyright infringer in the next post!
posted by The 10th Regiment of Foot at 6:20 AM on October 29, 2010

When it comes to children I'm hardly a sentimentalist, but what kind of asshole sues a 4-year-old?
posted by Ritchie at 6:24 AM on October 29, 2010 [4 favorites]

When it comes to children I'm hardly a sentimentalist, but what kind of asshole sues a 4-year-old?

Hello, the case is in New York City.
posted by nomadicink at 6:26 AM on October 29, 2010 [1 favorite]

This is fine, but only if the plaintiff's lawyer is also 4 years old.
posted by schmod at 6:28 AM on October 29, 2010 [6 favorites]

Hello, the case is in New York City.

My taxes fund those brain-accelerating bacta tanks and god damn if I'm not going to sue when some little bastard takes advantage!
posted by griphus at 6:32 AM on October 29, 2010

Well to be fair she was three months shy of turning 5.
posted by Sailormom at 6:34 AM on October 29, 2010 [2 favorites]

Okay, I can see how you'd want to sue the parents, I guess, but what do you expect from suing a four-year-old? 25% of her toy box?

No 25% of her income for the rest of her life. Imagine that burden. You don't even remember what it is you did and you're paying into some old-woman's estate for the rest of your life because you bumped into her with your bicycle when you were four.

A study published Monday in The Journal Of Child Psychology And Psychiatry has concluded that an estimated 98 percent of children under the age of 10 are remorseless sociopaths with little regard for anything other than their own egocentric interests and pleasures.

And that is putting it kindly..... surely the threat of tort liability will make them wise up.
posted by three blind mice at 6:36 AM on October 29, 2010 [9 favorites]

When it comes to children I'm hardly a sentimentalist, but what kind of asshole sues a 4-year-old?

They did run down and kill an old lady.
posted by The 10th Regiment of Foot at 6:36 AM on October 29, 2010 [5 favorites]

Interesting to note that the parents of the 4 y.o. boy "did not seek to dismiss the case against them."

Covered by liability insurance, obviously.
posted by PeterMcDermott at 6:36 AM on October 29, 2010 [2 favorites]

Interesting to note that the parents of the 4 y.o. boy "did not seek to dismiss the case against them."

Maybe they figured they'd save their money and just fight it the one time, since the best that could happen from pursing it is to get the kid removed from the suit and if they lose, they're paying whether the child is named on the lawsuit or not.

This is really dumb: any “reasonably prudent child,” who presumably has been told to look both ways before crossing a street, should know that dashing out without looking is dangerous, with or without a parent there. The crucial factor is whether the parent encourages the risky behavior; if so, the child should not be held accountable.

Four? Kids occasionally still pee their pants at four.
posted by A Terrible Llama at 6:37 AM on October 29, 2010 [2 favorites]

They should be hiring Harvey Richards, Esq.: Lawyer For Children!

(Later, I'll be suing my toddler for mental distress.)
posted by mittens at 6:39 AM on October 29, 2010

First, it should be noted that the "Supreme Courts" in New York are actually the low level trial courts. What most people would think of as a Supreme Court is the Court of Appeals. So this was a decision in a trial court, not a precedent-setting appellate decision.

Second, it should be noted that this is really nothing new. The standard to which a child is usually held is that of a reasonable child of that age, so a four year old would be held to a pretty low standard. Most first year law students read the case of Garrett v. Dailey, for example, which involved a 5 year old being sued for battery. There's nothing especially shocking about this case from a legal perspective, though it may be surprising to the public.
posted by jedicus at 6:42 AM on October 29, 2010 [9 favorites]

They did run down and kill an old lady.

Clearly they didn't mean to and can you even tell me any four year old that understands fully the concept of death? And how can they reasonably understand that by racing their bicycles (with training wheels on) they they could cause the death of another person?

It's a tragic accident, but negligence? Hardly.
posted by inturnaround at 6:47 AM on October 29, 2010 [9 favorites]

I wonder whether "Justice" Wooten has ever heard of the concept of "age of reason". Hell, I wonder whether he's reached it!
posted by Skeptic at 6:49 AM on October 29, 2010

Yeah, what Jedicus said. This is a hornbook torts rule. The corollary is that when a child engages in an adult activity (please, the joke is too low-hanging for you to bother, thanks), the child is held to an adult standard--i.e., if a 12 year old causes an accident while driving a car, that child is held to the standard of an adult driver. Then the torts professors always ask, what if the child is driving a tractor, and this is farm country where kids help out on the farm, and it's normal for them to drive tractors? Then I go back to reading the NY Times or Metafilter, and zone out for the rest of the class.
posted by Admiral Haddock at 6:51 AM on October 29, 2010 [7 favorites]

As I understand it (and from experience with four of my own of widely ranging temperaments) children begin to see death as permanent at around eight.

On a different note, more YTD for all (and I am a teacher, shhh!).
posted by emhutchinson at 6:58 AM on October 29, 2010 [1 favorite]

And, on seeing the title of this post, where does it say the children's parents aren't married?
posted by emhutchinson at 6:59 AM on October 29, 2010

I can't say whether suing a 4 year old is reasonable or applicable, nor can I say whether or not a 4 year old understands death or consequences.

However if my mom died because some little kid knocked her over on his bike, I'd want to do something, and kicking the kid down a flight of stairs seems like it'd only compound my problems.
posted by Uther Bentrazor at 7:01 AM on October 29, 2010 [1 favorite]

At least they're not trying her criminally for negligent homicide.
posted by pjdoland at 7:02 AM on October 29, 2010 [1 favorite]

Jesus. What the hell are they suing for? The woman was 87 years old. Nobody was dependent on her income or income-earning potential. If they're suing to recover out-of-pocket medical costs stemming from the accident, then they have some cause, but if they're trying to cash in on some bullshit "mental anguish" claim for big bucks, then fuck them.
Bad things happen sometimes. Don't try to turn Grandma's death into winning the lottery.
posted by rocket88 at 7:06 AM on October 29, 2010 [7 favorites]

Clearly they didn't mean to and can you even tell me any four year old that understands fully the concept of death? And how can they reasonably understand that by racing their bicycles (with training wheels on) they they could cause the death of another person?

So here's a fun lesson on how the law views this kind of thing. First, of course they didn't mean to hit the woman, that's why they're being sued for negligence, not battery (which is an intentional tort).

Second, a negligence analysis is basically whether there was a duty of care owed, whether there was a breach of that duty of care, and whether that breach was the factual and proximate (i.e., legally responsible) cause of the plaintiff's injury. The first question basically amounts to: does a reasonable four year old know that when you race a bicycle carelessly there is a risk that you will strike another person? The second question is: did the four year old race her bicycle carelessly?

The third question is a two-parter. Clearly the race was the factual cause of the injury. No race, no injury. But was it also the proximate or responsible cause? Well, the law asks "was it foreseeable?" The plaintiff would argue, and the law would probably agree, that it was.

It was foreseeable because they were racing on a sidewalk in Manhattan, which is known to be frequented by pedestrians. So it was foreseeable that their careless racing would result in a collision.

Now you might say, but the victim was an elderly woman! That's unusual! The law says no dice. By the eggshell skull rule, you take the victim as you find them, even if the particular damage was unforeseeable or the defendant did not intend to cause such a severe injury.

But even under a foreseeability analysis, it's foreseeable that there might be elderly pedestrians on a sidewalk in Manhattan. It's foreseeable that a relatively minor collision could cause a hip fracture in such a person. And it's foreseeable that, despite the proper efforts of health care workers, such a person could die following surgery for the fracture.

Under either analysis, the law says that you're liable for the resulting death, even if a reasonable four year old would only know of the risk of a collision, not the possible results.

Of course, parents may be held vicariously liable for the torts of their children, and the child may also be protected by the parents' insurance. There are a lot of other issues, but those are the basics.

Disclaimer: This is not legal advice, just a generic discussion of torts. I know just about jack all about New York law, and none of this is specific to the law of that state.
posted by jedicus at 7:09 AM on October 29, 2010 [25 favorites]

The kid hit an old women with a bicycle with training wheels and the 87 year old woman died from complications of a broken hip 3 weeks later. This is not on any planet running down an old woman.

Do you know what killed the woman? Being significantly older than most people ever get to be.
posted by I Foody at 7:11 AM on October 29, 2010 [2 favorites]

Under either analysis, the law says that you're liable for the resulting death, even if a reasonable four year old would only know of the risk of a collision, not the possible results.

The law is stupid.
posted by empath at 7:12 AM on October 29, 2010 [1 favorite]

Jesus. What the hell are they suing for?

Do you mean the basis for the action? Wrongful death, probably. The deceased woman's causes of action (negligence, for example) are, in effect, inherited by her heirs, who then sue for wrongful death.

Or do you mean the measure of damages? Oh, medical costs, pain and suffering (the injury was no doubt painful, she had to go through surgery, then she died 3 weeks later; that's a lot of room for pain and suffering), and the loss of life itself. There may well be medical evidence that she was in otherwise great health and could easily have lived to be 100. That's 13 years of lost life, which is nothing to sneeze at.

Nobody was dependent on her income or income-earning potential.

How do you know? Because she was 87? That's pretty ageist. Lots of people work well into their older years and quite productively. Judge Giles Rich was active on the Federal Circuit until he was 95, for example.
posted by jedicus at 7:16 AM on October 29, 2010 [4 favorites]

Do you know what killed the woman? Being significantly older than most people ever get to be.

I, too, am in favor of a world in which the elderly are deprived of their rights and classed as legal non-citizens. But until that blessed day arrives, this is a sensible and predictable result under long-settled law. The question will remain whether the child was negligent as a legal matter; the decision only rules that the child can be sued.
posted by Admiral Haddock at 7:18 AM on October 29, 2010 [14 favorites]

The law is stupid.

Do you have a better way to apportion the risk? Why shouldn't it fall on the negligent party? Should it fall on the hapless plaintiff, who did nothing wrong or even risky?

Further, what's the dividing line? It's easy to say a four year old would know of the risk of the collision itself. But where do you draw the line after that? "Hypothetical Ideal Reasonable Four Year Old, do you know what a bruise is? Okay, how about a laceration? A contusion? A fracture? A blood clot? A stroke? Pulmonary embolism? How about an infection? Hospital acquired MRSA? Hospital acquired pneumonia?"

Every case would get bogged down in showing what the defendant did or did not know about. Ignorance of the consequences of our actions would be encouraged, which is the exact opposite of what tort law should do.
posted by jedicus at 7:24 AM on October 29, 2010 [4 favorites]

Do you have a better way to apportion the risk? Why shouldn't it fall on the negligent party? Should it fall on the hapless plaintiff, who did nothing wrong or even risky?

If you're so frail that a bump from a 4 year old riding a bike is likely to kill you, then I'd suggest that going outdoors at all is risky.
posted by empath at 7:29 AM on October 29, 2010 [2 favorites]

The fact of the matter is that this all could have been avoided if the four year olds had watched that episode of Punky Brewster where Punky finds out that the reason that her mean old neighbor hates kids is because she had her dancing career cut short after being hit by a child riding a bicycle (Part 1, 2, 3).
posted by Jugwine at 7:30 AM on October 29, 2010 [10 favorites]

If the law thinks a four-year-old is capable of reasoned thought, the law has never actually met a four-year-old.

My kid has all his mental faculties and still forgets that he needs to pull up his pants after he potties before he tries running into the living room to see the TV.
posted by emjaybee at 7:31 AM on October 29, 2010 [6 favorites]

Jugwine, consider this me serving you with process for intentional infliction of Punky Brewster.

I am willing to consider out of court settlements; I think you'll find that this is an open and shut case.
posted by Admiral Haddock at 7:32 AM on October 29, 2010

It was a very special Halloween episode! I REGRET NOTHING!
posted by Jugwine at 7:34 AM on October 29, 2010 [5 favorites]

Also, for a fascinating study in contrasts, follow the Above the Law thread on the same topic, posted just a few moments ago. No comments yet (you can still pop in to say FIRST! as of this writing), but you soon will be delighted to watch the scintillating legal discussion that follows.
posted by Admiral Haddock at 7:36 AM on October 29, 2010

Do you have a better way to apportion the risk? Why shouldn't it fall on the negligent party? Should it fall on the hapless plaintiff, who did nothing wrong or even risky?

A broken hip, though, isn't fatal. Why isn't the family going after the hospital, who should have been taking precautions to insure infection didn't set in, to make sure she was properly anticoagulated, and was having appropriate rehab to get up and about? (I couldn't tell from the article what actually killed her.)
posted by mittens at 7:37 AM on October 29, 2010 [1 favorite]

Do you have a better way to apportion the risk? Why shouldn't it fall on the negligent party? Should it fall on the hapless plaintiff, who did nothing wrong or even risky?

Further, what's the dividing line? It's easy to say a four year old would know of the risk of the collision itself. But where do you draw the line after that? "Hypothetical Ideal Reasonable Four Year Old, do you know what a bruise is? Okay, how about a laceration? A contusion? A fracture? A blood clot? A stroke? Pulmonary embolism? How about an infection? Hospital acquired MRSA? Hospital acquired pneumonia?"

Every case would get bogged down in showing what the defendant did or did not know about. Ignorance of the consequences of our actions would be encouraged, which is the exact opposite of what tort law should do.

This is why people hate lawyers.
posted by waitingtoderail at 7:38 AM on October 29, 2010 [5 favorites]

If you're so frail that a bump from a 4 year old riding a bike is likely to kill you, then I'd suggest that going outdoors at all is risky.

I put it to you that a 4 year old child could easily be killed by another four year old child riding a bike (e.g. if they fell and hit their head on a curb). Solution: ban all children under 5 from going outdoors. Problem solved!
posted by EndsOfInvention at 7:38 AM on October 29, 2010 [3 favorites]

If you're so frail that a bump from a 4 year old riding a bike is likely to kill you, then I'd suggest that going outdoors at all is risky.

Who says she was frail?*

*-- my grandfather walked 6 miles every day until he died at 96 y.o.
posted by ericb at 7:41 AM on October 29, 2010 [1 favorite]

My kid has all his mental faculties and still forgets that he needs to pull up his pants after he potties before he tries running into the living room to see the TV.

Thank you for saying this. I thought it was just my kid. Does your kid also fall over running back to the TV because his underwear is still around his knees and so he trips and falls?
posted by anastasiav at 7:42 AM on October 29, 2010 [1 favorite]

Or do you mean the measure of damages? Oh, medical costs, pain and suffering (the injury was no doubt painful, she had to go through surgery, then she died 3 weeks later; that's a lot of room for pain and suffering), and the loss of life itself.

What is the point of suing a 4 year old for damages though? Clearly the child has no assets to pay damages with. How would a judgment against a child of that age even work? I don't know a whole lot about civil suits involving minors, but I had thought the way it worked was that parents could be held liable for things their children did, so they would be sued even if they had no direct involvement the actual incident.
posted by burnmp3s at 7:43 AM on October 29, 2010

If you're so frail that a bump from a 4 year old riding a bike is likely to kill you, then I'd suggest that going outdoors at all is risky.

It's kind of a non-starter to hold people responsible for the unavoidable results of aging. For another example, what about the blind? Should we say "sorry, no matter how careful you try to be, you're blind, so going outdoors at all is risky and you're responsible for injuries to you caused by the negligence of others." This seems like blaming the victim for a condition they could do nothing about. Whereas the negligent party could have been non-negligent and avoided the whole thing.

But anyway that's basically the idea behind comparative negligence and contributory negligence. The former is the idea that the victim's own negligence should reduce the damages owed by the defendant. The latter is the idea that if the victim was negligent at all, then the defendant owes nothing. The former is more popular than the latter, mostly because the latter often leads to what seem to be grave injustices (e.g. the plaintiff is 1% negligent in a case that caused a million dollar injury. result? no recovery at all).

Anyway, how do we know the woman knew she was that frail? And how do we know it was just a bump? It could be the child was going quite fast when she struck the woman, and it could be that the design of the bike was such that the force was concentrated in a single, unfortunate spot.

Of course, it could also be that the woman wasn't watching where she was going or didn't even try to get out of the children's way. There are a lot of facts that will come out at trial to establish negligence, comparative negligence, and other defenses.
posted by jedicus at 7:45 AM on October 29, 2010 [2 favorites]

The law is stupid.

Charles Dickens? Is that you?
posted by DU at 7:48 AM on October 29, 2010 [1 favorite]

I have as much law knowledge as someone who has watched Law & Order a lot has, but to me it is clear that a 4 year old (even one who is 4 and three quarters) isn't capable of being negligent; furthermore, racing bicycles under the supervision of parents suggests that the parents are okay with it, and that the parents don't think it's unduly risky. As a layperson, the entire fault seems to be that of the parents who let their children race on a sidewalk instead of in a park. I am told there is a rather large park in New York City, as well as many other smaller ones.
posted by jeather at 7:51 AM on October 29, 2010

It's kind of a non-starter to hold people responsible for the unavoidable results of aging

Who is holding her responsible? It doesn't have to be anyone's fault that she died.
posted by empath at 7:51 AM on October 29, 2010 [2 favorites]

Or do you mean the measure of damages? Oh, medical costs, pain and suffering (the injury was no doubt painful, she had to go through surgery, then she died 3 weeks later; that's a lot of room for pain and suffering), and the loss of life itself.

So who cashes in on the woman's pain and suffering? Her surviving family? Why do they deserve money? Again, having a loved one die shouldn't mean a financial windfall for the family, unless it causes financial hardship (e.g. main breadwinner dies). It's possible that could be the case here, but very unlikely.
posted by rocket88 at 7:51 AM on October 29, 2010

The thing that some folks seem to be missing is that this ruling is not that the child was negligent, merely that she can be sued. The judge ruled that 4 year old children can be held to a standard of behavior legally, which seems entirely reasonable. His example was pretty solid, even.

He did not rule that a reasonable 4 year old should have foreseen the risk of hitting a pedestrian while racing bikes on the sidewalk, and I'd be a lot more critical of him if he had. But ruling that 4 year olds can be held to some standard of behavior at all seems like a relatively reasonable ruling. The line has to be drawn somewhere.

As jedicus points out above, whether the child was actually negligent will be established at trial, and there are many many factors to consider for that. Given my experience of kids that young, I'd say there's a hell of a burden on the plaintiff to establish that the kid should have known better. There's even a strong case to be made that the parent was being reasonable in allowing the child to race. But those issues have yet to be even considered by the court.
posted by contrarian at 7:53 AM on October 29, 2010 [4 favorites]

How would a judgment against a child of that age even work? I don't know a whole lot about civil suits involving minors, but I had thought the way it worked was that parents could be held liable for things their children did, so they would be sued even if they had no direct involvement the actual incident.

Well, as mentioned there's the possibility of insurance coverage. Homeowner and renters insurance often covers negligence generally.

And while the parents may be liable for the torts of their minor children (the law on parental liability varies from state to state and I know nothing about New York's), it must first be shown that the child was negligent. And in this case the parents were apparently sued as well.

If the child is found solely liable...well, I don't know. It would be pointless to garnish a four year old's non-existent wages, and I don't know if a court would allow or a plaintiff would even pursue trying to maintain collections until the defendant finally began to earn money.
posted by jedicus at 7:53 AM on October 29, 2010 [1 favorite]

Jedicus' quick torts summary is spot on <-- current law student
posted by leotrotsky at 7:53 AM on October 29, 2010 [1 favorite]

I believe that "reasonable 4-year-old" is a pretty obvious oxymoron, and any court that refuses to see this is being rather unreasonable.
posted by Skeptic at 7:53 AM on October 29, 2010 [2 favorites]

My favorite Garratt v. Dailey fact. A law professor was once sued by one of his students when she fell while reenacting the case in class: http://www.telegraph.co.uk/news/worldnews/northamerica/usa/1310544/Professor-sued-over-litigation-lesson.html
posted by interplanetjanet at 7:55 AM on October 29, 2010

question : would this be a trial by jury case?
posted by empath at 7:56 AM on October 29, 2010 [1 favorite]

Though unsurprisingly, I just noticed the Telegraph gets the facts of Garratt v. Dailey wrong.
posted by interplanetjanet at 7:56 AM on October 29, 2010

Should it fall on the hapless plaintiff, who did nothing wrong or even risky?

How do you know that? Maybe she came charging out from behind a bush without looking. Maybe there was a sign next to the sidewalk warning of boisterous children. The article doesn't really say much about the facts in the case; nor did the judge rule on said facts.

This appears to be yet another of those cases where a judge makes a counter-intuitive ruling based on some complicated legal principle or precedent, and everybody suddenly sprouts an opinion without ever having cracked a law book.
posted by steambadger at 7:58 AM on October 29, 2010 [1 favorite]

However if my mom died because some little kid knocked her over on his bike, I'd want to do something, and kicking the kid down a flight of stairs seems like it'd only compound my problems.

I think there is a modern entitlement that we are owed an explanation for everything, and that there should be someone or something at fault for everything bad that happens to us.
posted by atrazine at 7:59 AM on October 29, 2010 [13 favorites]

"It's kind of a non-starter to hold people responsible for the unavoidable results of aging"

Who is holding her responsible? It doesn't have to be anyone's fault that she died.

I should have been more clear. By responsible I meant financially responsible, not 'at fault' or morally responsible. Your suggestion would hold her financially responsible. Essentially, although someone else was negligent in causing her injury, she should be financially responsible for the consequences simply because she was old.

So who cashes in on the woman's pain and suffering? Her surviving family? Why do they deserve money?

Yes, her surviving family. Deserve? Well, for starters because otherwise it gives a perverse incentive for defendants to make sure their victims die.

But look at it this way. Suppose she had lived, sued for (among other things) pain and suffering, and won some amount of money. Would it also be wrong for her to give it to her family while she was alive? What about as part of her estate? If those are okay, then why would it be wrong for the family to be able to sue directly?
posted by jedicus at 8:00 AM on October 29, 2010

Does your kid also fall over running back to the TV because his underwear is still around his knees and so he trips and falls?

Do you have representation?
posted by The 10th Regiment of Foot at 8:00 AM on October 29, 2010

What is the point of suing a 4 year old for damages though? Clearly the child has no assets to pay damages with.

Because the child's tort may be covered by an insurance policy. Further, the mother, who was supervising the child, is also a defendant. Joint and several liability will allow the plaintiff to recover the full damages from the child's negligence from the mother, who may also be covered by insurance. If the mother is covered but the child is not, all the more reason.

I would be very, very surprised if the plaintiffs were suing with no more expectation of collection than what the 4 year old might eventually pay, decades later, provided that the debt isn't discharged in bankruptcy first. Four year olds don't have many assets, after all.

So, pretty rational non-crazy reasons for doing this that aren't obvious at first glance. Most "OMG LAWSUITS" articles trade on this non-obviousness.
posted by Marty Marx at 8:00 AM on October 29, 2010 [5 favorites]

The law is stupid.

Frequently, yes.
posted by adamdschneider at 8:02 AM on October 29, 2010

This appears to be yet another of those cases where a judge makes a counter-intuitive ruling based on some complicated legal principle or precedent, and everybody suddenly sprouts an opinion without ever having cracked a law book.

Except Jedicus (who has provided accurate commentary in this thread) and I (who have provided some snark) are lawyers (though not your lawyers, and this is not legal advice), and this is an entirely intuitive ruling based on longstanding and well-known legal principles. This is not a big deal ruling, particularly coming from one of NY's "supreme" i.e., lowest courts. (The high court in NY is the Court of Appeals.)
posted by Admiral Haddock at 8:03 AM on October 29, 2010 [1 favorite]

What is the point of suing a 4 year old for damages though?

As with most civl lawsuits against a person there is in fact no point as such. The plaintiff and plaintiff's lawyers have little interest in the defendant except as a special kind of witness to be cross-examined in court. The point of the exercise is to threaten to sue, and get a settlement, from the defendant's insurer, if any. If the defendant has no insurer and is not exceedingly wealthy there is very little point at all in proceeding with any court case except for spite. If the defendant has an insurer, that insurer is obliged by the contract to step in, and obliged by corporate sociopathy to vigorously attempt to divest itself of the obligation to step in. If the insurer fails to so divest itself, it will take over the case, and it will make all relevant legal decisions including when and whether to settle out of court or defend the case in court instead.

If this case goes ahead the four-year-olds will have very little personal involvement and no personal stake in it. On a few occasions over the next few years they will be dressed up by Mommy and Daddy and taken to a strange place to be talked about and perhaps asked some silly questions by scary people.
posted by aeschenkarnos at 8:04 AM on October 29, 2010 [1 favorite]

question : would this be a trial by jury case?

I don't know. Criminal cases involving minor defendants are tried before judges. I don't know about civil cases. Are you going to go for a 'jury of her peers' argument?

How do you know that? Maybe she came charging out from behind a bush without looking. Maybe there was a sign next to the sidewalk warning of boisterous children. The article doesn't really say much about the facts in the case; nor did the judge rule on said facts.

In that context I was speaking generally about the rules for liability, not making pronouncements about the facts of this case. I said "Under either analysis, the law says that you're liable for the resulting death, even if a reasonable four year old would only know of the risk of a collision, not the possible results." empath said "The law is stupid."

This appears to be yet another of those cases where a judge makes a counter-intuitive ruling based on some complicated legal principle or precedent, and everybody suddenly sprouts an opinion without ever having cracked a law book.

As an attorney (albeit in Missouri, not New York), I have cracked a few law books in my time. And I don't find this ruling counter-intuitive at all, nor involving any particularly complicated principles or precedents. This is really first semester torts stuff.
posted by jedicus at 8:05 AM on October 29, 2010 [1 favorite]

Essentially, although someone else was negligent in causing her injury, she should be financially responsible for the consequences simply because she was old.

Only if a 4 year old can be considered negligent, which is completely absurd to me. A four year old can no more be negligent than a puppy.
posted by empath at 8:06 AM on October 29, 2010 [1 favorite]

So who cashes in on the woman's pain and suffering? Her surviving family? Why do they deserve money? Again, having a loved one die shouldn't mean a financial windfall for the family, unless it causes financial hardship (e.g. main breadwinner dies). It's possible that could be the case here, but very unlikely.

Not unlikely at all. The woman may not have been able to cover her medical expenses, and the family was required to come up with the remainder. Now, whether the kid deserves to be sued, that's another story.
posted by zombieflanders at 8:06 AM on October 29, 2010 [1 favorite]

Deserve? Well, for starters because otherwise it gives a perverse incentive for defendants to make sure their victims die.

Resulting in a criminal homicide charge? Hardly an incentive.
Besides, by your logic, there's currently a perverse incentive to send Grandma out into the streets at rush hour.
posted by rocket88 at 8:07 AM on October 29, 2010

I agree with the ruling, mainly cause regardless of the outcome those being punished are the parents and not the children...the way I see this is the worse that could happen:

1) Child gets sued
2) Court decides child is liable for wrongful/negligent death.
3) Child will not go to jail but is liable for a certain amount of money.
4) Child does not work and as such is not expected to foot the bill.
5) Parents are expected to foot the bill.
6) Parents pay the damn bill and learn to teach their kids not to be little generals.
7) They go to central park and play in safe places where elderly folks cant sue or wont have grounds to sue.

I am sick and tired of seeing kids running all over the place because they dont know better. As a kid myself I was taught to have fun, run all over the place WHILE avoiding trouble, and usually the source of trouble were other elders.
posted by The1andonly at 8:10 AM on October 29, 2010 [1 favorite]

This is Manhattan, the 4-year-old may very well have PLENTY of assets.

Trust funds, property, whatever.
posted by the young rope-rider at 8:12 AM on October 29, 2010 [3 favorites]

Resulting in a criminal homicide charge? Hardly an incentive.

The civil law generally ignores the criminal law. There are some exceptions (e.g. negligence per se), but for the most part the civil law tries to be self-contained. It doesn't assume that it won't create a perverse incentive because the criminal law will pick up the slack, since it frequently doesn't, and certainly can't be counted on to do so (see, e.g., the nearly absolute and unreviewable prosecutorial discretion).

Only if a 4 year old can be considered negligent, which is completely absurd to me. A four year old can no more be negligent than a puppy.

Do the four year olds you interact with strike you as intelligent or responsible as puppies? I know four year olds aren't the brightest of creatures, but they're usually a bit smarter than puppies in my experience. Certainly I think it's not too much to expect them not to run into people with their bicycles. And if they can't be expected not to do that, then the parent was negligent for giving them the bikes in the first place.
posted by jedicus at 8:15 AM on October 29, 2010 [1 favorite]

If you're so frail that a bump from a 4 year old riding a bike is likely to kill you, then I'd suggest that going outdoors at all is risky.

Dammmit, if only Katherine Graham (84 y.o.) and Dr. Atkins (72 y.o.) had only stayed inside. Both died as a result of injuries sustained in a fall on a sidewalk.
posted by ericb at 8:18 AM on October 29, 2010

Admiral Haddock: Except Jedicus (who has provided accurate commentary in this thread) and I (who have provided some snark) are lawyers...

I thought it was obvious that my remarks were directed, not at the actual lawyers on the thread, but at the usual crop of "OMG, how can a judge be so stupid" comments. Apparently it wasn't; please don't sue me.

jedicus: This is really first semester torts stuff.

"First semseter torts stuff" has an entirely different implication for those of us who've never been to law school.
posted by steambadger at 8:18 AM on October 29, 2010

I disagree that children can be held negligent at all; I'd probably allow them to be considered as such at the same time that they are allowed, for example, to make their own decisions on medical care. If you cannot reasonably foresee the outcome of medical treatments that will affect your own life, you cannot reasonably foresee the outcome of actions you take that may affect other people's lives.
posted by jeather at 8:19 AM on October 29, 2010

Also, for a fascinating study in contrasts, follow the Above the Law thread on the same topic...[Y]ou soon will be delighted to watch the scintillating legal discussion that follows.

I'd never actually read the comments at AtL ("comments hidden for your protection" indeed!). I can only assume the 'study in contrasts' was the contrast between MetaFilter and the YouTube-esque commentary over there. I further assume the rest of your comment was sarcasm.

Jugwine: I'm available as a character witness in the Punky Brewster case. I am prepared to testify that Admiral Haddock is well known in the community for posting links to outrageous and distressing material, and so can hardly cry foul over an 80s sitcom, however cloying and saccharine.
posted by jedicus at 8:22 AM on October 29, 2010

jedicus and Admiral Haddock have the legal analysis pretty well covered, but I'd throw in three additional bits.

First, all the judge has done here is refused to throw out the case. The case will now presumably go to trial, where the defendant will be held to the standard of a reasonable four-year-old. As a number of commenters have snarked, that's actually a pretty low bar. All the judge is really saying here is that she isn't categorically incapable of being held culpable for her actions, not that she was actually culpable in this case. This is neither counter-intuitive nor the wrong result.

Second, I can't really tell whether liability insurance is likely to be involved here. On one hand, if I were the claims adjuster here, I'd have offered to settle almost immediately, as it's hard to avoid liability in wrongful death claims. On the other hand, the plaintiff may be asking for entirely too much money--this is New York City, after all. The latter seems plausible since the accident happened on E. 52d St., suggesting that the parents are either 1) relatively well off, or 2) quite a ways outside their neighborhood.

But third, the plaintiff died three weeks after the accident. As tragic as that is, it's actually better for the defendants than if she'd lived. No more medical bills. The courts tend to treat life itself as literally priceless, so they mostly award economic damages in wrongful death cases, which have the advantage of being actually calculate-able. And since she was already 87, the actuarial tables aren't going to give a very high damage award for her wrongful death claim, which is usually computed on the basis of expected income (among other things) over the rest of your life.* If she was frail enough to die after getting hit by a bike, she probably wasn't going to make it to 95. This may sound callous, but there doesn't seem to be a much better way of assigning a dollar value to a particular human life.

*And interest/dividend income doesn't count, as the family can still get all of that.
posted by valkyryn at 8:24 AM on October 29, 2010 [2 favorites]

A four year old can no more be negligent than a puppy.

Yes, but I may be able to prove that you should have done more to keep your puppy from biting me (or getting into the wheels of my bicycle, thereby causing me a fall and serious head injury - I know someone like this). And I may be able to force you to euthanize your puppy, in addition to collecting money from you and your insurance company.

So it could be worse for the defendants.
posted by toodleydoodley at 8:33 AM on October 29, 2010

can you even tell me any four year old that understands fully the concept of death?

The one who has spent her childhood racing down sidewalks while her mother screams "SLOW DOWN OR YOU'LL KILL SOMEONE!"
posted by DarlingBri at 8:37 AM on October 29, 2010 [1 favorite]

three blind mice: "No 25% of her income for the rest of her life. Imagine that burden. You don't even remember what it is you did and you're paying into some old-woman's estate for the rest of your life because you bumped into her with your bicycle when you were four. "

That's a fairly uncharitable description of Social Security.
posted by graventy at 8:40 AM on October 29, 2010 [9 favorites]

As I understand it (and from experience with four of my own of widely ranging temperaments) children begin to see death as permanent at around eight.

But I believe it is at age 4 where children understand 'punitive damages' and 'compensatory damages'.
posted by mazola at 8:41 AM on October 29, 2010 [1 favorite]

A four year old can no more be negligent than a puppy.
posted by The 10th Regiment of Foot at 8:42 AM on October 29, 2010

The judge merely decided that the child could be tried, not that the child was legally responsible. Let's get into a tizzy when the actual case happens, not when the wrangling leading up to it occurs. At this moment, no child is being made to pay any of their lifetime earnings for killing anybody. This is America. We drag 4-year-olds into count here. We'd drag 2-year-olds into court, but somebody decided they're too young.
posted by Astro Zombie at 8:47 AM on October 29, 2010 [2 favorites]

Do you know what killed the woman? Being significantly older than most people ever get to be.

I, too, am in favor of a world in which the elderly are deprived of their rights and classed as legal non-citizens. But until that blessed day arrives, this is a sensible and predictable result under long-settled law. The question will remain whether the child was negligent as a legal matter; the decision only rules that the child can be sued.

Um no. My comment was not about her rights. My comment was about what caused her death. And what caused her death is about 95% being 87 and about 5% percent being hit by a small bicycle. The decision might well have legal merit. I am not equipped to evaluate it in that regard. I don't think the decision is appropriate. That is a separate and valid question. I will if I am lucky be really old and fragile some day. When that day comes I will hope people will be very careful around me because I am very old and fragile. If I am hit with a bicycle by a four year old and break my bones I will hope that enough of my mind is still remains that I think "how unlucky" instead of "that four year old must pay".
posted by I Foody at 8:53 AM on October 29, 2010

I am not a lawyer, but my thought is that I would not have tried to get my child off the suit. I am with the boy's parents there. If the jury eventually decides to apportion the negligence, if I am the only one on the suit, I get 100%, but if my 4 year old gets apportioned some of it, my liability is reduced and my 4 year old may not have to pay.
posted by AugustWest at 8:56 AM on October 29, 2010

When it comes to children I'm hardly a sentimentalist, but what kind of asshole sues a 4-year-old?

I'm gonna guess the survivor of someone killed by a 4-year-old?

*reads article*

Hey!

A broken hip, though, isn't fatal.

As a non-elderly person who not-so-long-ago had his hip badly broken by someone who "meant no harm," I assure you that the complications from a broken hip certainly can be fatal.

Those of you decrying the lawsuit, make no mistake. The kids killed the woman.

When would she have died if she had not been hit? How much pain did the injury cause her in her last weeks of life? How much money would she have made during the rest of her life?

I don't claim that it's fair that a four-year-old who makes an innocent accident has her wages garnished for life (though couldn't she instead declare bankruptcy?), but the estate of the victim deserves compensation. I don't see any way around that.

Also, there are a LOT of details missing from this report: did the women see the girl coming, etc. I doubt the case is black and white.

This is why people hate lawyers.

Because they think issues through logically instead of making decisions based on blind emotion?

I'm guessing is that the plaintiffs don't have a case against the parent ("supervising") and the girl is covered under the parents insurance policy, and the insurance company will fight it.

If the girl was not covered by liability insurance, there's no judgment to be won. The girl likely has no assets.

So who cashes in on the woman's pain and suffering? Her surviving family? Why do they deserve money?

Why does Paris Hilton get her dad's money when he dies? What's the difference?

And on preview, what a bunch of people said better than me. It wasn't a judgment; just a decision not to dismiss. It seems like the age of the defendant will certainly affect the case itself.

It was a very special Halloween episode! I REGRET NOTHING!

Another very special Halloween episode. With Glomer.
posted by mrgrimm at 8:56 AM on October 29, 2010 [4 favorites]

And what caused her death is about 95% being 87 and about 5% percent being hit by a small bicycle.

So your claim is that if she had not been hit by the bicycles, there was a 95% chance she would have died in a few weeks anyway.

I call shenanigans.
posted by mrgrimm at 8:57 AM on October 29, 2010 [1 favorite]

This is America. We drag 4-year-olds into court here. We'd drag 2-year-olds into court, but somebody decided they're too young.

I know you're mostly joking, but apparently some European countries would or at least could allow a case like this, though some have absolute bars based on age. The French rule is even harsher than the US rule.

"[I]n France...children are held liable in tort although they have no ability to reason. Their ability “to distinguish between good and evil” (discernement) is of no relevance, as their acts must not be measured up to the regular behavior of other children of the same age but to the standard of a reasonable adult person. As long as the act committed can be considered negligent under this objective point of view they will be liable in tort."

"Under Austrian law, children under fourteen years of age are...presumed not to be responsible and it is up to the claimant to prove that in the individual case the minor had enough judgment to be held responsible."

Italy also takes things on a case-by-case basis.
posted by jedicus at 9:02 AM on October 29, 2010 [1 favorite]

A four year old can no more be negligent than a puppy.

I disagree with this. Small children may not be able to be held to quite the same standards as an adult, but any child of that age not raised by wolves has (or ought to have) a simple, general, somewhat clear understanding of the expectations upon him/her in public places.

Part of the problem here is that in NYC, public spaces like parks and sidewalks are treated as extensions of private spaces. A child's home world is incredibly small, and all of the activities that would normally take place in a yard or surrounding property wind up happening in the public sphere, for better or worse. In fact, nearly every complaint that childless New Yorkers wind up having about their procreating counterpoints boils down to some variation on this problem.

I grew up in a small town, on a dirt road. Whenever we were in town buying groceries, I was acutely aware from a very small age that there were different rules in play than there were at home. These rules were enforced by my parents, and if they missed something, other adults weren't shy about pointing it out. That's just not how it works in New York City.

Anyhow my point is that four year olds are not puppies, and while they may not make the best decisions, part of the duty of a parent is to teach the difference between public and private conduct. There are bound to be errors of judgment and even occasional terrible accidents, but children are still capable of more than most adults give them credit for -- if their parents and neighbors are doing their job.
posted by hermitosis at 9:05 AM on October 29, 2010 [3 favorites]

...her death is about 95% being 87 and about 5% percent being hit by a small bicycle.

We don't know that. Maybe preventable errors/mistakes were made in the hospital. It's possible that there are other lawsuits against the hospital, doctors and staff. It could be that the fall was the precipitating event, and poor care led to death. Again, no one here knows the details of the case ... or, of her death and its cause.
posted by ericb at 9:06 AM on October 29, 2010

We don't know that. Maybe preventable errors/mistakes were made in the hospital. It's possible that there are other lawsuits against the hospital, doctors and staff. It could be that the fall was the precipitating event, and poor care led to death. Again, no one here knows the details of the case ... or, of her death and its cause.

And, to add the legal gloss, a tortfeasor is liable both for the unique damages suffered by the victim (i.e., the eggshell skull rule cited by Jedicus above), and for all reasonably foreseeable harms that follow (i.e., medical malpractice, or the failure of an 87 year old body to heal correctly). Yes, maybe the victim was old enough that a fall in her apartment would have produced the same result, but this kid won the liability lottery.

If you don't like how this works, lobby for tort reform. It's cool, I'm not a tort lawyer, I really don't mind.
posted by Admiral Haddock at 9:24 AM on October 29, 2010

So your claim is that if she had not been hit by the bicycles, there was a 95% chance she would have died in a few weeks anyway.
Of course not.
posted by I Foody at 9:37 AM on October 29, 2010

I know you're mostly joking

I'm not joking, The judge rules on precedent, and the precedent is that we can sue 4-year-olds.
posted by Astro Zombie at 9:42 AM on October 29, 2010

any child of that age not raised by wolves has (or ought to have) a simple, general, somewhat clear understanding of the expectations upon him/her in public places.

I think you'll find that Sabine Women vs. Romulus does, in fact, place responsibility on wolves to raise children 'in a manner in comportment with societal expectations'.
posted by Copronymus at 9:46 AM on October 29, 2010 [8 favorites]

Realistically, this always ends up being a means to get the parents of the child (or their insurance company) to pay for the injury. Speaking as a lawyer myself, I've always thought the fiction that children really are "responsible" is silly, but it isn't silly to have a tort system that provides for compensation for a person injured like this.
posted by bearwife at 9:50 AM on October 29, 2010 [1 favorite]

I'm not joking, The judge rules on precedent, and the precedent is that we can sue 4-year-olds.

I meant that I assumed you were joking about this being somehow uniquely American. It is not, at least not in terms of the law, though I don't know how often French 4 year olds are actually sued.
posted by jedicus at 9:50 AM on October 29, 2010

If you don't like how this works, lobby for tort reform.

lol

American People Hire High-Powered Lobbyist To Push Interests In Congress
posted by mrgrimm at 9:51 AM on October 29, 2010

Last year, while at a family gathering, my cousin's 4-year-old (who, by most accounts, is precocious and adorable) followed me around the house calling me Poopface. I am so going to sue that smartass little chick for slander.
posted by mudpuppie at 9:56 AM on October 29, 2010 [1 favorite]

My comment was about what caused her death. And what caused her death is about 95% being 87 and about 5% percent being hit by a small bicycle.

Even if this is the case, shouldn't that mean the deceased woman's family is entitled to recover 5% of the costs from the girl/her parents/their insurance?
posted by DevilsAdvocate at 10:04 AM on October 29, 2010

1959, I was 4 years old and living at Roald Dahl's apartment on the side street opposite Frank E. Campbell's Funeral Church on Madison Avenue and 81st. My playmate was 4 or 5 year old Roger G.

In a pre-Buddhist decision to eliminate all my worldly belongings I asked Roger to help me throw my toys out the 4th storey window. Shortly after the doorbell rang, a police officer and an irate, very elderly woman turned up to fume. She'd been conked on the noggin. It was a miracle my foot long, wooden xylophone had not killed her, thanks to her well-padded black velvet pillbox hat with one of those delicate netting veils that were in fashion then.

I do remember crawling under the kitchen sink in remorse and horror that I'd hurt anyone and have no idea when she and the police officer did, finally, go away. I'd like to think I apologized to her but that part is a blur.

Yes, cause and effect are not something 4 year olds fully comprehend. Partially, yes. So I think suing a 4 year old is a reckless misuse of the law. In my case, the thoughtless action was done without adult supervision or knowledge. I was responsible but not eligible, imo, for the blame that holds an older child accountable.

I have witnessed adult negligence however. Parents, especially, who do not properly observe that their young child's/children's actions are potentially hurtful to others, and set active/appropriate limitations, would be legally responsible.
posted by nickyskye at 10:06 AM on October 29, 2010 [1 favorite]

The downside of the lawsuit is that it will cause future training wheelers to consider the option of speeding away to a body shop to have the dents removed and the bike repainted.
posted by digsrus at 10:12 AM on October 29, 2010

I am so going to sue that smartass little chick for slander.

Pretty tough case. I think you'd have to prove: that you are not in fact a poopface; that she told other people you were a poopface; and that the poopface allegation directly harmed your reputation.
posted by mrgrimm at 10:18 AM on October 29, 2010 [3 favorites]

1959, I was 4 years old and living at Roald Dahl's apartment

Oh, come ON...
posted by empath at 10:26 AM on October 29, 2010 [2 favorites]

I think there is a modern entitlement that we are owed an explanation for everything, and that there should be someone or something at fault for everything bad that happens to us.
posted by atrazine at 10:59 AM on October 29 [4 favorites +] [!]

Whoa. Deep.

But not at all applicable in this case, where there is a clear explanation: An old woman was killed from complications she sustained from injuries she received by a child on a bicycle under her parent's supervision. The court will determine who is actually 'at fault' however.
posted by Uther Bentrazor at 10:30 AM on October 29, 2010

...her death is about 95% being 87 and about 5% percent being hit by a small bicycle.

Research on hip fractures doesn't seem to agree with you.

Older adults [age 50 or older] have a 5- to 8-fold increased risk for all-cause mortality during the first 3 months after hip fracture. Excess annual mortality persists over time for both women and men…

Source: Meta-analysis: Excess Mortality After Hip Fracture Among Older Women and Men. Ann Intern Med March 16, 2010 152:380-390

posted by Lexica at 10:35 AM on October 29, 2010 [1 favorite]

Parents let their kids run wild in the name of letting them be children when it's really just a bid to be the good cop because they're so tired from their jobs. It's like how people pamper their tiny dogs.

I was changing in a Filene's once (where they have the big changing rooms with no separators) and this little girl came up to me and told me I should wear a thong. And her mother acted like her little girl was so witty. And I gave her mom a puzzled look and her mom said, "Oh, she tells everybody to wear a thong. Even her teachers. Hahaha."

Ha ha indeed. You can't even tell your seven year old to please not be rude to strangers who don't want to be disturbed by annoying children with no manners.
posted by anniecat at 10:37 AM on October 29, 2010 [1 favorite]

Also, if it had been a leashless doberman that knocked that poor old lady down, clearly they would have had the dog killed and no one would have blamed the old lady.
posted by anniecat at 10:39 AM on October 29, 2010 [4 favorites]

So I think suing a 4 year old is a reckless misuse of the law. In my case, the thoughtless action was done without adult supervision or knowledge. I was responsible but not eligible, imo, for the blame that holds an older child accountable.

Honestly, nickyskye (and others), if you actually had killed someone by throwing your xylophone out of a window, what redress do you think the victim (or his/her estate) should have? (I'm assuming it did really happen to you, and that's not a reference to a children's book.)

I agree that young children lack much of the "common sense" that society requires, but I don't think I could just say, "Oh well, that's kids" and dismiss all claims of compensation.

It is a really tough situation. At what age does a kid know he shouldn't throw heavy toys out of his window onto a busy sidewalk? Maybe some kids learn that by 2 or 3. Maybe some kids don't learn it until they are 12. It's hard to blame a kid (or any person), regardless of age, when he or she hasn't learned what's right and wrong, but it's also hard to allow ignorance or naivete as a defense for wrongdoing.

In my opinion, it's akin to breaking something extremely valuable at a store. A kid certainly didn't mean to do it, and she might not even have been playing or acting irresponsibly. But she still will have to pay for it.

1959, I was 4 years old and living at Roald Dahl's apartment

Oh, come ON...

I took her at her word.

Roald Dahl's Darkest Hour
posted by mrgrimm at 10:39 AM on October 29, 2010

the estate of the victim deserves compensation

Also, the hospital or medical institution that treated the elderly woman deserves compensation. People don't work for free.
posted by mrgrimm at 10:41 AM on October 29, 2010

As a kid myself I was taught to have fun, run all over the place WHILE avoiding trouble, and usually the source of trouble were other elders.

Me too. I was specifically told to be helpful to my granny, who was old and frail, and that she was old and frail.
posted by anniecat at 10:43 AM on October 29, 2010

Pretty tough case. I think you'd have to prove: that you are not in fact a poopface;

Wouldn't it be worse than that? Wouldn't she have to show a preponderance of the evidence that, at the time of the alleged slander, she was not a poopface nor in such a condition that a reasonable person might have mistaken her for a poopface?

I think you'd have to go with the attack that not only were you slandered, but also your cousin's four-year-old is totally corroded and presents an imminent danger to others of cootie infection.
posted by ROU_Xenophobe at 11:30 AM on October 29, 2010

Also, if it had been a leashless doberman that knocked that poor old lady down, clearly they would have had the dog killed and no one would have blamed the old lady.

Good lord, are you suggesting ... ?!?
posted by mazola at 11:40 AM on October 29, 2010 [3 favorites]

Stupid baby-cyclists and their mini critical mass. This was bound to happen sooner or later.
posted by The Hamms Bear at 11:52 AM on October 29, 2010

Also: this is why I make my four year old ride her bike in the street with the other vehicles.
posted by The Hamms Bear at 11:52 AM on October 29, 2010 [2 favorites]

I took her at her word.

i thought it was just a name drop.
posted by Snyder at 11:58 AM on October 29, 2010

Do you have a better way to apportion the risk? Why shouldn't it fall on the negligent party? Should it fall on the hapless plaintiff, who did nothing wrong or even risky?

Further, what's the dividing line? It's easy to say a four year old would know of the risk of the collision itself. But where do you draw the line after that? "Hypothetical Ideal Reasonable Four Year Old, do you know what a bruise is? Okay, how about a laceration? A contusion? A fracture? A blood clot? A stroke? Pulmonary embolism? How about an infection? Hospital acquired MRSA? Hospital acquired pneumonia?"

Every case would get bogged down in showing what the defendant did or did not know about. Ignorance of the consequences of our actions would be encouraged, which is the exact opposite of what tort law should do.

This is why people hate lawyers.

Yes, for interrupting our reflexive indignation by looking at the actual consequences of the law.
posted by John Cohen at 12:22 PM on October 29, 2010 [1 favorite]

Also: this is why I make my four year old ride her bike in the street with the other vehicles.

Finally, somebody got to the lesson of the story. Sidewalks are for walking!
posted by mrgrimm at 12:25 PM on October 29, 2010 [1 favorite]

The kid hit an old women with a bicycle with training wheels and the 87 year old woman died from complications of a broken hip 3 weeks later. This is not on any planet running down an old woman.

Do you know what killed the woman? Being significantly older than most people ever get to be.

To answer your question, I don't know what killed the woman. And you don't know what killed the woman. That's why the judge ruled that the issue goes to the jurors to decide. They'll be able to look at the specific evidence in the case instead of leaping to conclusions based on preconceptions about old people.
posted by John Cohen at 12:25 PM on October 29, 2010 [4 favorites]

This is why people hate lawyers.

Right, because lawyers are the ones who brought this suit. Look, people sue other people, and then hire lawyers to argue their side, and then judges/juries have to make a decision about who is at fault. This decision wasn't cooked up by an evil cabal of lawyers who sit around thinking up stupid shit to drive the rest of you crazy. Nobody sat down and wrote up a set of torts rules. Tort law has developed over hundreds of years. (A lot of these concepts come from English tort law, so, yes, some of them really are that old.)

If you take a torts class, you see how these concepts have built up over time through the process of weighing each side in a case. So, if you have a case in 1890 that says you can hold an 11 year old to the standard of a reasonable 11 year old, then in 1920, you have a case that says the same for a 6 year old, and in 1940 the same for a five year old, and voila, in 2010 you have a four year old being held to the standard of a reasonable four year old (which, again, is a very low standard). (All years made up, not references to actual cases.) When judges/juries are presented with a conflict, they have to make a decision. Whether they rule for the plaintiff or the defendant, they're potentially adding to the body of caselaw that future judges and juries will rely on. I don't see how lawyers are to blame here.

I think there is a modern entitlement that we are owed an explanation for everything, and that there should be someone or something at fault for everything bad that happens to us.

I guess it depends on how you define modern, but like I said, tort law developed over hundreds of years. Someone mentioned the eggshell skull rule already. The case probably everyone read in law school for that concept is from 1891. From Wikipedia: In 1891, the Wisconsin Supreme Court came to a similar result in Vosburg v. Putney.[4] In that case, an 11 year old boy kicked a 14 year-old boy in the shin while at school. It turned out that the 14 year-old had a unknown "microbial" condition that was irritated by the kick. The kick resulted in the boy entirely losing the use of his leg. No one could have predicted the level of injury before the kicking. Nevertheless, the court found that since the kicking was unlawful, and as it occurred during school and not on the playground, the 11 year-old boy was liable for the injury.
posted by Mavri at 12:34 PM on October 29, 2010 [2 favorites]

I think there is a modern entitlement that we are owed an explanation for everything, and that there should be someone or something at fault for everything bad that happens to us.

What percentage of actual injuries that happen in the United States do you think lead to a plaintiff recovering any damages? I don't know the statistic, but I'm sure it is a very low percentage. You could make a long list of reasons injured people don't sue even if they believe someone else caused their injury. The conventional wisdom is that America is insanely over-litigious, but this is based on an emotional reaction to lawsuits people don't like.
posted by John Cohen at 12:43 PM on October 29, 2010 [3 favorites]

The article says:
[The old woman] died three months later of unrelated causes.

To me that means the woman's death was not caused by the accident. Are some people assuming the NY Times is lying or are people just not reading the entire article?

Anyway, this decision is a bad precedent. Blame the parent? Sure. But let four year olds play.

mrgrimm at 10:39 AM
No. A four year old should never have to pay for a broken toy. Period. Partly because they can't. What are you going to do? Withhold their allowance until they are twelve? Browbeat them until they go to college? Goodness. Parents are responsible for children up to a certain age. Let's not punish kids through the legal system for being kids.
posted by Rashomon at 2:01 PM on October 29, 2010 [1 favorite]

Are some people assuming the NY Times is lying or are people just not reading the entire article?

The article changed recently (which, ahem, you'd see if you read the whole article...):

This article has been revised to reflect the following correction:

Correction: October 29, 2010

An earlier version of this article incorrectly stated that Claire Menagh died three weeks after the accident. She died three months later.

The original version also omitted the 'of unrelated causes' part. It was strongly implied that the death was caused by the injury or complications from the surgery. If the child or parents are held liable this changes only the measure of damages; it wouldn't change the fact of liability.
posted by jedicus at 2:09 PM on October 29, 2010

If the child or parents are held liable this changes only the measure of damages; it wouldn't change the fact of liability.

Exactly.

If Claire Menagh were to be alive today, she'd be permitted to pursue redress against the parents (and children) for her injury, cost of such, etc. As of now, it's up to the legal process to determine whether or not she is (was) due redress -- and if so, for how much, etc.?
posted by ericb at 2:21 PM on October 29, 2010

With the new information regarding this situation -- once again no one of us are in the position of making any real determination of the facts of the case. That's up to a judge and/or a jury to decide.
posted by ericb at 2:23 PM on October 29, 2010 [2 favorites]

*no one of us is...*
posted by ericb at 2:24 PM on October 29, 2010

I think there is a modern entitlement that we are owed an explanation for everything, and that there should be someone or something at fault for everything bad that happens to us.

'I'm broke and in terrible pain. I wish my life were not ending like this.'
'Now now mother, I'm sure it's all part of God's plan for you.'
posted by anigbrowl at 2:26 PM on October 29, 2010 [2 favorites]

Does your kid also fall over running back to the TV because his underwear is still around his knees and so he trips and falls?

I assumed that was understood. Perhaps the landlord will need to sue him for scuffing up the linoleum with his head.
posted by emjaybee at 2:29 PM on October 29, 2010

Big FAIL for NYT's reporter Alan Feuer -- and/or for fact checkers and editors.

Three weeks vs. four months between the accident and her death?

We know from your article that the accident occurred in April 2009. Her obituary in YOUR VERY OWN NEWSPAPER states that she died on Thursday, August 13, 2009!

Big FAIL!
posted by ericb at 2:41 PM on October 29, 2010 [1 favorite]

Perhaps the landlord will need to sue him for scuffing up the linoleum with his head.

You should be able to buff that out.
posted by ericb at 2:43 PM on October 29, 2010

bearwife I've always thought the fiction that children really are "responsible" is silly, but it isn't silly to have a tort system that provides for compensation for a person injured like this.

Yes it is. It's silly to use a tort system to perform the functions of a social security or universal insurance system.
posted by aeschenkarnos at 2:47 PM on October 29, 2010

It's silly to use a tort system to perform the functions of a social security or universal insurance system.

I will agree with this once there is a social security system or universal insurance system that provides adequate compensation. Meanwhile the tort system and principles of negligence are what taps the insurance coverage that does exist. That's why insurance companies love and spend money on "tort reform."
posted by bearwife at 3:04 PM on October 29, 2010 [2 favorites]

Oh, come ON...

Yes, true story. I may have been 5 or 6 though. But I think I wasn't 5 yet. Yes, namedropping too but it's not often I have a chance to tell that throwing the xylophone out of Roald Dahl's window story and this seemed like as good a time as any because it is about legal liability and the age of a child, me, who did something stupid, badly thought out and hurt somebody.

if you actually had killed someone by throwing your xylophone out of a window, what redress do you think the victim (or his/her estate) should have?

It's a very good question. Over the years I've worried about that elderly woman, wondered if the harm I inadvertently and unintentionally caused her created much suffering in her life.

It makes sense to me that there is a legal timeframe for culpability for human actions. At what age should a child be legally culpable and how is the punishment to be meted when the child has no money to offer as recompense for harm done?

I don't have any of those answers but it's something, imo, worth thinking about.
posted by nickyskye at 5:39 PM on October 29, 2010

Oh wait, she died of unrelated causes 3 months later? What the hell is this case about again?
posted by Uther Bentrazor at 7:09 PM on October 29, 2010

a negligence analysis is basically whether there was a duty of care owed, whether there was a breach of that duty of care, and whether that breach was the factual and proximate (i.e., legally responsible) cause of the plaintiff's injury. The first question basically amounts to: does a reasonable four year old know that when you race a bicycle carelessly there is a risk that you will strike another person?

This conflates foreseeability and negligence. When you say "carelessly," you're begging the question of whether the bike-racing was negligent, considering the child's age.

As an analogy: if you are driving and get into an accident, the negligence analysis does not turn on whether you know that when you drive carelessly there is a risk that you will cause an accident; it turns on whether what you were doing was careless driving.

So the question you want to ask in this case, for a negligence analysis, is whether a reasonable 4-year-old would race her bike under these circumstances.
posted by palliser at 8:31 PM on October 29, 2010

I was a little sloppy there, yeah. Good correction.
posted by jedicus at 8:54 PM on October 29, 2010

Thanks!

In the harsh light of morning, I realize it seems like I was just being pedantic, but I think for 4-year-olds, the distinction could be important, in the sense that they often could identify a risk, in terms of their intellectual capacity, but could not apply that knowledge to present decision-making, in terms of their capacity for prudent self-denial. So a reasonable 4-year-old might both know, on some level, that a bike race could result in a collision, yet still do it.

And that's where I think the instinct comes that it's absurd to apply a negligence standard to a 4-year-old at all: you sort of conjure up the idea of a "reasonable person" when applying it normally, and then when you try to conjure up the "reasonable 4-year-old," you're not sure if it exists, or if you're really supposed to be thinking of one of those preternaturally self-possessed little kids who kind of creep you out.
posted by palliser at 6:38 AM on October 30, 2010