PastPaperHero | Negligence

Learning Outcomes

This article explains how negligence rules apply when the actor is a child, either as defendant or plaintiff, including:

Identifying the general child standard of care and articulating how age, intelligence, education, and experience modify what counts as “reasonable” conduct for child defendants on MBE-style fact patterns.
Distinguishing when the ordinary child standard applies from situations in which the adult activity doctrine requires courts to hold a child to the objective adult reasonable-person standard, especially in cases involving motor vehicles, boats, or other licensed, hazardous activities.
Evaluating a child plaintiff’s conduct for contributory or comparative negligence, with close attention to capacity, risk appreciation, and how those issues interact with different fault regimes tested on the exam.
Applying the child standard when children are injured as trespassers or invitees, and integrating it with attractive nuisance analysis and land possessor duties commonly featured in MBE questions.
Separating a child’s negligence from potential parental liability, and spotting when negligent supervision or negligent entrustment theories provide independent bases for recovery in addition to, or instead of, the child’s own liability.
Systematically approaching MBE multiple-choice questions involving minors by first identifying the applicable standard of care, then testing for adult-activity exceptions, defenses, and overlapping doctrines.

MBE Syllabus

For the MBE, you are required to understand how the general principles of negligence apply specifically to children, with a focus on the following syllabus points:

The general standard of care applicable to children.
How age, intelligence, education, 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.
How child status interacts with land possessor duties (e.g., attractive nuisance) and parental liability for negligent supervision.

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.

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.
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.
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 law adjusts that standard to take account of the child’s developmental stage.

This adjustment is central on the MBE. Children appear frequently in negligence questions, both as defendants who injure others (e.g., a child bicyclist) and as plaintiffs who are injured while playing, trespassing, or using dangerous instrumentalities. The examiner expects careful identification of the applicable standard of care and precise reasoning about the child’s capacity to perceive and avoid risks.

Two core ideas frame the analysis:

Most of the time, children are judged by a subjective child standard that looks to children of like age, intelligence, education, and experience.
In a small but important set of situations, a child is treated like an adult under the adult activity doctrine, and the usual adult objective standard of care applies.

In addition, when the injured party is a child, defenses such as contributory negligence, comparative negligence, and assumption of risk must be evaluated using the child’s standard, not the adult standard, unless the child was engaged in an adult activity.

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

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. Many courts also expressly include education as part of this inquiry.

This subjective test recognizes that children lack the maturity, judgment, and life experience of adults and do not have the same ability to foresee and avoid risks.

Factors Considered: Age, Intelligence, Education, Experience

Age: This is the starting point. The younger the child, the less care is expected. A 16-year-old is expected to exercise more care than an 8-year-old in the same situation.
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; a child with cognitive limitations may be compared to a similarly limited child.
Education: Courts may consider the child’s level of schooling and what an average child with that education would understand about the risk.
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 standard is therefore a hybrid: objective (what a reasonable child with those characteristics would do), but tied to the particular child’s attributes.

Exam Tip: Do not treat a 17-year-old exactly like an adult unless the question clearly involves an adult activity (such as driving). For ordinary teenage activities—sports, riding a bicycle, roughhousing—the child standard still applies.

Minimum Age and the “Tender Years” Doctrine

There is a minimum age below which it is not meaningful to say that a child can conform conduct to a standard of care. Modern courts often avoid rigid cutoffs, but some patterns are consistent.

Key Term: Tender Years Doctrine
A traditional rule under which very young children—often below age 7—are deemed legally incapable of negligence. Modern courts may not fix a precise age but generally treat children under about 4–5 as incapable of negligence.

Key points:

Very young children (roughly under 4–5): Most courts treat these children as incapable of negligence as a matter of law. On the MBE, if a 3-year-old’s conduct is at issue, the safer conclusion is that the child cannot be negligent.
Children in the “tender years” (often under 7): Some jurisdictions apply a firm presumption of incapacity up to a certain age (e.g., 7). Others assess capacity case by case, asking whether this child had sufficient maturity and experience to be capable of negligence.
Older children (around 7–14): Courts are more likely to find capacity for negligence, but still apply the child standard and consider the specific child’s attributes.
Teenagers (14–17): Capacity is generally assumed; the child standard is applied, but the level of expected care is close to that of an adult in many child activities.

On the MBE, where a very young child injures someone, the likely analysis is:

The child is not negligent because of incapacity; and
Liability, if any, must come from another actor, such as a parent, school, or land possessor.

Physical Characteristics and Disabilities

Although the child standard already adjusts for youth, physical characteristics are still relevant. A child with a physical disability (for example, a blind child) is compared to a reasonably prudent child of like age and disability. This parallels the adult rule that physical, but not mental, limitations are taken into account.

Influence of Intelligence and Experience

Intelligence and experience can raise or lower what counts as reasonable care:

A 12-year-old who has been skateboarding for years can be expected to understand and avoid obvious skateboarding risks.
A 10-year-old who has been repeatedly warned about the dangers of throwing rocks at cars may be judged more strictly than one who has never been told.

However, the law does not excuse extreme carelessness simply by labeling a child “immature.” There is still a baseline of care that even children are expected to use, adjusted by age and other factors.

Everyday Examples Under the Child Standard

Consider these situations involving non–adult activities:

A 9-year-old runs into the street after a ball. The question is whether a reasonably prudent 9-year-old, with that child’s intelligence and experience, would have done so.
A 13-year-old swings a baseball bat near others. The issues are whether a reasonably prudent child of that age and experience would have foreseen the risk of hitting someone and taken precautions (e.g., checking surroundings, moving to a safer area).

In both, the adult standard would be too demanding; the legal inquiry is calibrated to typical children of that age and attributes.

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), education, and experience (little with firearms) under the circumstances. Target shooting with an air rifle, particularly under parental supervision in a backyard, is not typically treated as an "adult activity" requiring adult qualifications in the same way as driving a car or operating a motorboat. Therefore, the subjective child standard applies, not the adult standard.

Worked Example 1.2

Four-year-old Lily is playing in a park and swings a plastic bat, accidentally striking another child. The injured child’s parents sue Lily for negligence. How should Lily’s conduct be evaluated?

Answer:
Lily is so young that most courts would regard her as incapable of negligence as a matter of law. Under the tender years approach, a 4-year-old is generally not expected to appreciate and conform to a legal standard of care. The negligence claim against Lily would likely fail. Attention would instead turn to possible negligence by supervising adults (such as parents or caregivers) or by the park if a dangerous condition contributed to the injury.

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 a potentially dangerous activity typically pursued only by adults and often requiring adult qualifications (such as licensing) 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 same level of care as from an adult. People on the highway, or on a public lake, cannot adjust their behavior based on the driver’s age; they are entitled to assume that anyone operating a car or motorboat is exercising ordinary adult care.

Common Adult Activities

Activities commonly treated as “adult” for this doctrine include:

Driving an automobile or truck on public roads.
Operating a motorcycle, motor scooter, or moped in traffic.
Operating a speedboat or motorboat on public waters.
Operating a snowmobile or similar motorized vehicle in public areas.
Flying an airplane.

By contrast, activities like riding a bicycle, skateboarding, skiing, or playing typical children’s games—even if dangerous in particular circumstances—are ordinarily not treated as adult activities because they are commonly done by children.

Courts generally require both:

A significant degree of danger; and
A type of activity normally undertaken only by adults, often with licensing or formal training.

Application to Both Defendants and Plaintiffs

The adult activity doctrine applies regardless of whether the child is the defendant or the plaintiff:

A 15-year-old defendant driving a car is held to the adult standard when sued by an injured third party.
A 16-year-old plaintiff driving a motorcycle who is injured by another driver is judged by the adult standard when assessing the plaintiff’s comparative negligence.

Exam Tip: Always ask two questions:

Was the actor a child?

If yes, was the child engaged in a motorized, licensed, or otherwise adult-only activity at the time of the alleged negligence?
If both are true, apply the adult standard.

Examples

A 14-year-old driving a family car on a public street is held to the adult standard.
A 13-year-old operating a powerful speedboat on a crowded lake is held to the adult standard.
A 15-year-old using a bicycle on a neighborhood street is still under the child standard; biking is not an adult-only activity.

Worked Example 1.3

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.

Worked Example 1.4

Thirteen-year-old Max rides his bicycle on a residential street, looks down to adjust his backpack, and swerves into a parked car, damaging it. The car owner sues Max for negligence. What standard applies?

Answer:
Max is engaged in an ordinary child activity—riding a bicycle on a neighborhood street. That is not an adult-only, licensed activity. Max’s conduct will therefore be judged by the child standard: what a reasonably prudent 13-year-old of similar intelligence, education, and experience with biking would have done. The adult activity doctrine does not apply.

Borderline Activities

Some activities fall on the border:

Off-road use of motorized vehicles (e.g., dirt bikes, ATVs) may be treated as adult activities if used in public areas or in a way that poses serious risk to others.
Hunting with real firearms sometimes triggers adult standards in some jurisdictions, particularly when done in organized settings akin to adult hunting.

On the MBE, questions invoking the adult activity doctrine will typically use clear examples like cars, boats, or motorized vehicles in public spaces. When in doubt, focus on whether the activity is dangerous and ordinarily reserved for adults.

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, education, 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 (considering age, education, intelligence, and experience) to determine if the child failed to exercise reasonable care for their own safety, which may reduce or bar recovery depending on the jurisdiction’s fault regime.

Capacity and Risk Appreciation

Two issues are central when assessing a child plaintiff’s negligence:

Capacity: As with child defendants, a very young child may be deemed legally incapable of negligence. If the child cannot understand the risk, there is no breach of duty to self.
Risk appreciation: Even for older children, the key question is whether a child of like age and attributes could appreciate the specific risk encountered and the need to act differently.

If a 6-year-old runs into the street after a ball, the analysis turns on whether a reasonably prudent 6-year-old would have perceived the danger of oncoming traffic and refrained. The same behavior by a 15-year-old would almost certainly be negligent.

Effect in Contributory vs. Comparative Negligence Jurisdictions

Pure contributory negligence (few jurisdictions): Any negligence by the plaintiff, including a child, is a complete bar to recovery. On the MBE, unless the facts specify contributory negligence, assume some form of comparative fault.
Comparative negligence (majority): A child plaintiff’s recovery will be reduced by the child’s percentage of fault, as judged under the child standard (unless engaged in an adult activity, in which case the adult standard applies).

Interaction with Assumption of Risk

Implied assumption of risk also depends heavily on the child’s capacity to understand the risk:

A 7-year-old who climbs on a partially fenced construction site may not lawfully be found to have assumed the risk if a child of that age would not understand the danger.
A 16-year-old who dives into shallow water despite clear warnings is more likely to have assumed the risk or to be comparatively negligent.

Worked Example 1.5

Nine-year-old Ben ignores his babysitter’s instruction not to climb a tall tree in the yard. While climbing, he falls and is injured. Ben sues the homeowner for maintaining an unsafe tree. The jurisdiction follows pure comparative negligence. How is Ben’s own conduct evaluated?

Answer:
Ben’s conduct is evaluated under the child standard: whether a reasonably prudent 9-year-old of similar intelligence, education, and experience would have climbed the tree after being warned not to. If the fact-finder concludes that such a child would have recognized the danger and heeded the warning, Ben may be found comparatively negligent, and his damages will be reduced proportionately. The adult reasonable person standard does not apply because Ben was not engaged in an adult activity.

Exam Warning

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

Children, Trespass, and the Attractive Nuisance Doctrine

Children frequently appear on the MBE as trespassers injured by artificial conditions on land—particularly in “attractive nuisance” scenarios. The land possessor’s duty and the child’s own negligence must both be analyzed.

Key Term: Attractive Nuisance Doctrine
A land possessor may be liable for injuries to child trespassers caused by an artificial condition if: (1) the possessor knows or should know children are likely to trespass; (2) the condition poses an unreasonable risk of death or serious harm; (3) because of their youth, the children do not discover or cannot appreciate the danger; (4) the utility of maintaining the condition is slight compared to the risk; and (5) the possessor fails to exercise reasonable care to eliminate the danger or protect children.

Key points for children:

The doctrine explicitly recognizes that children may not appreciate certain risks, even when adults would find them obvious.
The child’s inability to appreciate the danger is both:
- Part of the land possessor’s duty analysis; and
- Relevant to whether the child was negligent for entering or playing near the condition.

If the elements of attractive nuisance are satisfied, the land possessor may owe a duty of reasonable care to protect child trespassers, even though adult trespassers would receive little protection.

The child’s comparative negligence, if any, is still assessed under the child standard. A 5-year-old who wanders into a construction site is far less likely to be found negligent than a 15-year-old who ignores “Danger” signs and scaled fences.

Worked Example 1.6

Eleven-year-old Nora and her friends regularly cut across a neighbor’s property to reach a pond. The neighbor stores an old refrigerator, with the door intact, in an unfenced area visible from the path. Nora climbs inside the refrigerator to hide, the door swings shut, and she is injured before being found. Nora sues the landowner. The landowner asserts that Nora was negligent for trespassing and playing with the refrigerator.

Answer:
The landowner may be liable under the attractive nuisance doctrine. The refrigerator is an artificial condition posing a serious risk. The landowner knows or should know children frequently cross the land. Because of her youth, Nora may not appreciate the risk of suffocation once inside. The cost of removing the door or securing the refrigerator is slight compared to the risk. As to Nora's own negligence, her conduct is evaluated under the child standard: whether a reasonably prudent 11-year-old of like intelligence and experience would have entered the refrigerator. Even if the fact-finder assigns some comparative fault to Nora, her youth and inability to appreciate the specific risk will significantly limit that percentage.

Children, Parents, and Negligent Supervision

Children are liable for their own torts, subject to the capacity and standards discussed above. Parents, however, are generally not vicariously liable for the ordinary torts of their children solely by virtue of the parent–child relationship. Liability of parents usually rests on their own negligence.

Key Term: Negligent Supervision (Parents)
A parent may be directly liable for failing to exercise reasonable care in supervising a child or in entrusting the child with a dangerous instrumentality when the parent knows or should know of the child’s propensity to engage in harmful conduct, and that failure leads to foreseeable harm.