Attributing Fault – Standard of Care for a Child

Posted Monday, October 10, 2016 by Ed Harper

Attributing Fault - Standard of Care for a Child

“When referring to a child, ordinary care means the same care that a reasonable careful child of the same age, intelligence, maturity, training, and experience would exercise under the same or similar circumstances.” WPI 10.05.

Generally, a child under the age of six (6) cannot be negligent. The law has deemed children under this age to not have the required mental ability to make decisions that would be considered reasonable or unreasonable. It can be assumed they will not make reasonable decisions, and thus cannot be held responsible for their actions in a court of law. Additionally, if a child is between the ages of 17-18, and of normal capacity (ability to think) they may be treated as an adult in all cases. So this jury instruction basically is for children between the ages of 6 – 16.

The law allows them not to be considered a party where fault can be attributed to. In other words, you would have to assert some claim against their parents or guardian for their negligent actions to place the blame. Thus, if a child falls due to their running too fast on the playground and they run into another child or person, you cannot assert their carelessness as a factor in any attempt to ascertain 100% fault for the injury or harm they may have caused.

However, there are exceptions to this general rule. If a child engages in a dangerous activity normally conducted by adults, such as operating a vehicle (boat, car, motorcycle, motorbike, snowmobile to name a few) the child should be held to a reasonable adult standard of care.

An example can be found in Robinson v. Lindsay, 92 Wn.2d 410 (1979) Washington Supreme Court which expanded the ability to attribute fault to a youth who was barely a teenager, and was held to a reasonable adult standard of care. In Robinson, 13 year old Billy Anderson was driving a snowmobile, and had done so for more than two (2) years. His driving led to an injury (the loss of the use of a thumb) for Kelly Robinson. In the past, the court reasoned, a child’s conduct was compared to a hypothetical reasonable careful child of the same age, intelligence, maturity, training and experience. Now, in this 1979 case, the Supreme Court of Washington expanded the rule for children, to be held to a higher standard if a child engages in an inherently dangerous activity. Here, the snowmobile could have attained speeds up to 65 miles per hour and was thus a very powerful machine/vehicle. The court looks to the facts of each accident, and determines whether the jury should be instructed on an adult standard of care, or a standard of care for a child under WPI 10.05.

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