By J. DeVoy
“What I want, what I want, is just your children.”
– Marilyn Manson; New York’s personal injury bar
Much has been made of the New York Supreme Court’s recent decision to allow a negligence suit to proceed against four-year-old Juliet “Juliette” Breitman. Unlike most outlets, we have the court’s non-final disposition for you to read. As a prefatory note, the New York Supreme Court is the state’s lowest court, and this decision may yet be amended by the New York Supreme Court Appellate Division – the state’s intermediate appellate court – or its highest court, the New York Court of Appeals.
In New York, infants under age four are conclusively presumed incapable of negligence. Because the defendant was four years old, there is no bright line rule and the court had to determine the child’s duty of care based on what can be expected given his or her age, experience, intelligence, and degree of development and capacity.
Interestingly, parental supervision is not a distinguishing factor between cases where infants older than four have been found liable and those where they have not. While parental supervision has been present in prior cases where infants have not been found liable for their conduct, the Brietman court held that “A parent’s presence alone does not give a reasonable child carte blanche to engage in risky behavior.” The court observes an exemption for children’s liability when parents have taken an “active role in encouraging” the child’s conduct.
More than one inference as to the child’s ability to owe a duty to others could be drawn based on the facts of the Brietman case as they stood before the court. Because of that, a legal conclusion could not be drawn as to the child’s immunity, and dismissal was improper.
What most reporting has glossed over in favor of attention-grabbing headlines for the non-legal general public is that this is not the end of the case. While the young Ms. Brietman could be held liable, she has not yet been adjudged liable by any court or jury. The law in New York, and many other states, imposes specific requirements for the tort of negligence:
-Cause in Fact
-Proximate (Legal) Cause
The final three elements in this case seem less important given the controversy surrounding the young girl’s potential liability. Breitman’s contact with the decedent caused her fall and likely her subsequent death, which constitute damages. At the heart of the case, since Juliet Breitman can stand trial, are the questions of whether she had a duty to third parties and whether her conduct breached that duty.
Based on the court’s decision, it seems like the scope of Breitman’s duty, and whether she breached it, will depend on the facts of this case. More discovery will be required to determine the extent of her parents’ involvement and direction in her bike-riding escapades. Her experience riding her bike will also be relevant, along with the broad scope of her moral and social development, such as determining whether she appreciates the wrongfulness of colliding with a stranger.
In this case, Juliet Breitman may pay a steep price for having conscientious parents who raised her to appreciate others, avoid causing harm and, put simply, “pay attention and be careful.” Absentee parents and a lack of moral compass may save Juliet from liability, as she lacks the capacity to have a duty to others, let alone breach it.
If this case eventually reaches a court or jury disposition, the result will be very interesting. This is an unlikely outcome, as it is in most cases, but it will offer some definition to the duties infants owe to others. Already, the Supreme Court of New York has offered a revealing view into the liability of small children, and potentially opened the door to using them as defendants — finally making them useful, especially if their parents have generous homeowner or rental insurance.