## Facts

- A 66-year-old pedestrian was walking along the edge of a rural roadway without a sidewalk when she was struck by a five-year-old riding a bicycle.
- The pedestrian fell and suffered a fractured hip.
- Conditions were daylight with a dry, clear roadway; the area was straight and flat, and no other traffic was present.
- The pedestrian sued the child for negligence and sued the child’s parents for negligent supervision and negligent failure to instruct the child on proper bicycle use.
- The complaint alleged generally that the parents knew or should have known the child’s youth would prevent him from considering pedestrians’ safety.
- The complaint did not allege prior similar incidents, specific dangerous propensities, or facts showing the parents had an opportunity to control the child at the time of the collision.

## Issues

1. Whether Illinois should abandon the doctrine that children under seven are conclusively presumed incapable of negligence.
2. Whether a complaint states a claim for negligent parental supervision or instruction without alleging specific facts showing parental notice of likely harmful conduct and an opportunity to control the child.

## Decision

- The appellate court affirmed dismissal of the negligence claim against the child because Illinois retains a conclusive presumption that children under seven are incapable of negligence.
- The appellate court affirmed dismissal of the claims against the parents because the complaint failed to plead facts showing the parents knew or should have known injury was a probable consequence of the child’s conduct and that they had an opportunity to control him.
- The circuit court’s judgment was affirmed.

## Legal Principles

- In Illinois, a child under seven is conclusively presumed incapable of negligence as a matter of law.
- Intermediate appellate courts will apply settled Illinois common law doctrines absent controlling change by the legislature or the Illinois Supreme Court.
- Parents are not vicariously liable for their children’s torts; parental liability requires proof of the parents’ own negligence.
- A negligent supervision or instruction claim requires pleaded facts showing (1) parental knowledge (actual or constructive) that the child’s conduct was likely to cause injury, and (2) a realistic opportunity for the parents to control the child to prevent the harm.
- General allegations that a child’s youth makes careless conduct foreseeable, without specific notice-related facts, are insufficient and would improperly approximate strict liability.

## Conclusion

The court held that a five-year-old cannot be sued for negligence under Illinois’ tender years doctrine and that claims against parents for negligent supervision or instruction must be supported by specific factual allegations of notice and an opportunity to control, not generalized assertions based solely on the child’s age.


Appelhans v. McFall, 325 Ill. App. 3d 232, 757 N.E.2d 987 (Ill. App. Ct. 2001)