Negligence - Children

Learning Outcomes

This article explains the special rules applicable when a child's conduct is evaluated under negligence principles, either as a defendant or as a plaintiff. After reading this article, you will understand the subjective standard of care applied to children, the exception for children engaging in adult activities, and how a child's own negligence (contributory or comparative) is assessed, enabling you to apply these rules to MBE fact patterns involving minors.

MBE Syllabus

For the MBE, you are required to understand how the general principles of negligence apply specifically to children. This involves knowing:

• The general standard of care applicable to children.
• How age, intelligence, and experience factor into the child standard of care.
• The exception holding children to an adult standard of care when engaged in adult activities.
• How the principles of contributory negligence or comparative fault apply when the injured plaintiff is a child.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. In a tort action for negligence, a child defendant is generally held to the standard of care of:
   1. A reasonably prudent adult under the circumstances.
   2. A child of like age, intelligence, and experience under the circumstances.
   3. A child of the same age, regardless of intelligence or experience.
   4. Strict liability, if the child's conduct caused harm.
2. A 12-year-old drives a speedboat on a public lake and negligently collides with another boat, injuring its occupants. In a suit by the injured occupants, the 12-year-old's conduct will be judged by the standard of care of:
   1. A reasonably prudent 12-year-old.
   2. A child of like age, intelligence, and experience.
   3. A reasonably prudent adult.
   4. No liability attaches as the child is under 14.
3. A child plaintiff's recovery in a negligence action may be reduced or barred if the child failed to exercise the degree of care expected of:
   1. A reasonably prudent adult under the circumstances.
   2. A child of like age, education, intelligence, and experience under the circumstances.
   3. Any child of the same age.
   4. Children are incapable of contributory or comparative negligence as a matter of law.

Introduction

Negligence requires proof of duty, breach, causation, and damages. The standard of care ordinarily applied is that of a reasonably prudent person acting under similar circumstances. However, when the actor is a child, the standard of care is modified to account for the child's age and developmental stage. This article examines the special standard of care applicable to child defendants and the rules governing the effect of a child plaintiff's own negligence.

The Child Standard of Care

Unlike adults, who are judged by an objective "reasonably prudent person" standard, children are generally held to a more subjective standard of care. The conduct of a child defendant is measured against what a reasonably prudent child of like age, intelligence, and experience would have done under the same circumstances.

Key Term: Standard of Care (Children)
The degree of care expected of a child is that of a reasonably prudent child of like age, intelligence, and experience acting under similar circumstances.

This subjective test recognizes that children lack the maturity, judgment, and life experience of adults.

• Age: A key factor. The younger the child, the less care is expected. Some jurisdictions follow the "tender years" doctrine, holding children under a certain age (often 7) incapable of negligence, while others assess capacity on a case-by-case basis, though very young children (e.g., under 4 or 5) are generally found incapable.
• Intelligence: The child's actual mental capacity is considered. A child with higher-than-average intelligence for their age may be held to a correspondingly higher standard.
• Experience: The child's relevant experience with the specific situation or activity is taken into account. A child familiar with riding bicycles might be expected to exercise more care than one riding for the first time.

The Adult Activity Exception

A major exception exists to the subjective child standard of care. When a child engages in an activity that is normally undertaken only by adults, and for which adult qualifications are required, the child will be held to the objective standard of care applicable to adults.

Key Term: Adult Activity Doctrine
An exception to the child standard of care; a child engaging in an activity typically pursued by adults and requiring adult qualifications (e.g., operating a motor vehicle) is held to an adult standard of care.

• Rationale: The rationale is that when a child undertakes an inherently dangerous activity normally reserved for adults, others have a right to expect the child to comply with the same safety standards as an adult performing that activity.
• Examples: Common examples include driving a car, operating a motorcycle, speedboat, snowmobile, or airplane. Activities like riding a bicycle or playing typical children's games generally do not fall under this exception.

Worked Example 1.1

Ten-year-old David, who has average intelligence for his age but little experience with firearms, is target shooting with an air rifle in his backyard under his father's supervision. A pellet ricochets and strikes a neighbor, Paula, who is gardening nearby. Paula sues David for negligence. What standard of care applies to David's conduct?

Answer: David's conduct will be measured against that of a reasonably prudent child of like age (10), intelligence (average), and experience (little with firearms) under the circumstances. Target shooting with an air rifle is not typically considered an "adult activity" requiring adult qualifications in the same way as driving a car. Therefore, the subjective child standard applies, not the adult standard.

Worked Example 1.2

Fifteen-year-old Chloe, who has a valid driver's permit, is driving her parents' car with her licensed mother beside her. Distracted by her phone, Chloe runs a red light and collides with another vehicle driven by Peter. Peter sues Chloe for negligence. What standard of care applies to Chloe?

Answer: Chloe will be held to the standard of care of a reasonably prudent adult driver under the circumstances. Driving a car is an activity normally undertaken only by adults and requires adult qualifications (a driver's license or permit). Therefore, the adult activity exception applies, and Chloe's age, intelligence, and specific driving experience (beyond basic competence) are irrelevant to the standard of care.

Children as Plaintiffs: Contributory/Comparative Negligence

When a child is injured and brings a negligence claim, the defendant may raise the defense of the child's own negligence (contributory negligence in common law jurisdictions, comparative fault in most modern jurisdictions).

The same subjective child standard of care applies when evaluating the negligence of a child plaintiff. The question is whether the child plaintiff failed to exercise the degree of care that a reasonably prudent child of like age, intelligence, and experience would have exercised for their own safety under the circumstances.

Key Term: Contributory/Comparative Negligence (Children)
A child plaintiff's conduct is judged by the subjective child standard (age, intelligence, experience) to determine if the child failed to exercise reasonable care for their own safety, potentially reducing or barring recovery.

• Capacity: As with child defendants, a very young child plaintiff may be deemed legally incapable of negligence.
• Risk Appreciation: The child's ability to appreciate the specific risk encountered is a critical part of the analysis.

Exam Warning

Do not automatically apply the adult reasonable person standard just because the child is a plaintiff. The subjective child standard (age, intelligence, experience) applies unless the child plaintiff was engaged in an adult activity at the time of injury. Remember to assess the child's capacity to perceive and appreciate the specific risk involved.

Key Point Checklist

This article has covered the following key knowledge points:

• The general standard of care for a child defendant in negligence is subjective: that of a reasonably prudent child of like age, intelligence, and experience under the circumstances.
• This standard considers the specific child's limitations and capacities.
• The "Adult Activity Doctrine" is an exception: children engaged in inherently dangerous activities normally reserved for adults (e.g., driving a car) are held to an objective, adult standard of care.
• A child plaintiff's own negligence (contributory or comparative) is also judged by the subjective child standard, considering age, intelligence, experience, and capacity to appreciate the risk.
• Very young children may be deemed incapable of negligence altogether.

Key Terms and Concepts

• Standard of Care (Children)
• Adult Activity Doctrine
• Contributory/Comparative Negligence (Children)