Can a child be found negligent and thus contributorily negligent?

Posted Tuesday, November 01, 2016 by Ed Harper

Can a child be found negligent and thus contributorily negligent?

Can a child be found negligent and thus contributorily negligent? Yes, if they are less than 6 years old.

Washington Pattern Instruction 11.03 states the following: “A child under the age of six years is incapable of contributory negligent. Therefore, there is no issue of contributory negligence on the part of Plaintiff.” WPI 11.03.The idea of negligence is that a person who is allegedly negligent must have some ability to reason. In other words, to understand the nature of their actions, and then do something or fail to do something, which a jury could consider as negligence. A child under six does not have this ability.

“Fault includes acts or omissions, including misuse of a product, that are in any measure negligent or reckless toward the person or property of the actor or others, or that subject a person to strict tort liability or liability on a product liability claim. The terms also include breach of warranty, unreasonable assumption of risk, and unreasonable failure to avoid an injury or to mitigate damages. Legal requirements of causal relation apply both to fault as the basis for liability and to contributory fault.” Price v Kitsap County, 70 Wn. App. 748, 756 (1993).

In Price v. Kitsap County, a four year old child activated an emergency stop device on a Kitsap Transit bus, causing the bus to come to a sudden stop and Carl Price was injured. The issue in regards to the youngster centered around whether a four year old child can be contributorily negligent (partially responsible) for the harm inflicted on Mr. Price.

In the lower courts, when discussing combined the percentage of liability of the young boy and the County combining together equaling 100%, with 80% being the responsibility of the four year old. The Supreme Court however held the youngster could not be capable of understanding the nature of his actions, and thus could not be found negligent. “Washington courts recognize a conclusive presumption that a child under the age of six is incapable of negligence…Furthermore a child under six is incapable of being contributorily negligence…It is undisputed that the boy, Bradley Lancaster, was under five years old on March 4, 1987.”

“Recovery will, however, be diminished in proportion to the percentage of negligence attributed to the party recovering…Under our statutory concept of ‘pure’ comparative negligence, recovery may range from the most miniscule amount to near total recovery.

“The flaw in Kitsap Transit’s argument is…A four year old…is incapable of negligence, thus incapable of fault.” * Price*, at 757.

Therefore, based on this instruction, Mr. Price could only hold the County responsible for their portion of negligence. The child and his parents could not be blamed.

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