Thursday, October 28, 2010

Effin' Lawyers/Judges - Today's Sign of the Apocalypse

What the fuck is wrong with people?  Seriously.  I've preached about personal responsibility a lot on this blog  - I'm a firm believer in it - but there are limits: like saying a 4 year old can be sued for negligence for running into an old lady while riding a bike with training wheels. 

"Citing cases dating back as far as 1928, a judge has ruled that a young girl accused of running down an elderly woman while racing a bicycle with training wheels on a Manhattan sidewalk two years ago can be sued for negligence. 

The ruling by the judge, Justice Paul Wooten of State Supreme Court in Manhattan, did not find that the girl was liable, but merely permitted a lawsuit brought against her, another boy and their parents to move forward." 

Look - sue the parents - fine - THEY are responsible for the actions of their four year old.  But a four year old girl?   This one is too friggin' crazy not to keep reading:

"The suit that Justice Wooten allowed to proceed claims that in April 2009, Juliet Breitman and Jacob Kohn, who were both 4, were racing their bicycles, under the supervision of their mothers, Dana Breitman and Rachel Kohn, on the sidewalk of a building on East 52nd Street. At some point in the race, they struck an 87-year-old woman named Claire Menagh, who was walking in front of the building and, according to the complaint, was “seriously and severely injured,” suffering a hip fracture that required surgery. She died three weeks later."

Ok - it sucks that this old lady got hurt and died.  And no, I'm not going to argue that she should have been responsible enough to get out of the way - she was on the sidewalk.   The article continues with a reasonably sensible 2 paragraphs:

"Her estate sued the children and their mothers, claiming they had acted negligently during the accident. In a response, Juliet’s lawyer, James P. Tyrie, argued that the girl was not “engaged in an adult activity” at the time of the accident — “She was riding her bicycle with training wheels under the supervision of her mother” — and was too young to be held liable for negligence. 

In legal papers, Mr. Tyrie added, “Courts have held that an infant under the age of 4 is conclusively presumed to be incapable of negligence.” (Rachel and Jacob Kohn did not seek to dismiss the case against them.)"

Right - a 4 year old can't be negligent... But wait - this girl was four AND THREE QUARTERS!
"But Justice Wooten declined to stretch that rule to children over 4. On Oct. 1, he rejected a motion to dismiss the case because of Juliet’s age, noting that she was three months shy of turning 5 when Ms. Menagh was struck, and thus old enough to be sued. 

Mr. Tyrie “correctly notes that infants under the age of 4 are conclusively presumed incapable of negligence,” Justice Wooten wrote in his decision, referring to the 1928 case. “Juliet Breitman, however, was over the age of 4 at the time of the subject incident. For infants above the age of 4, there is no bright-line rule.” 

Hey Justice Wooten - there's also no bright-line rule that says when kids learn morality, responsibility and right and wrong.  Holy cow - I am on BAJUNGI TILT.

It gets even crazier:

"“A parent’s presence alone does not give a reasonable child carte blanche to engage in risky behavior such as running across a street,” the judge wrote. He added that any “reasonably prudent child,” who presumably has been told to look both ways before crossing a street, should know that dashing out without looking is dangerous, with or without a parent there. The crucial factor is whether the parent encourages the risky behavior; if so, the child should not be held accountable."

Wait - so if I'm driving down the street, and a 5 year old runs out in front of me and I run him over - it's his fault for negligence, right?  He should know that he has to look both ways, right?  He has presumably been told that already, right?  (END SARCASM!)  What planet does this judge live on where 5 year olds don't "dash out into the street" because they know better?  Guess what - they DO dash out into the street even though they MAY know better because they are only 5 years old and they are just thinking about getting their ball back!

Isn't there a saying "Behind every bouncing ball is a running child?"  Note how it's not "Behind every bouncing ball is a running child under the age of 4, because children over the age of 4 are reasonably prudent and should know better."

Maybe I'm overreacting.  I don't have kids.  Why don't some of my readers out there tell me if their 4 3/4 year olds have a sense of morally righteous behavior and know never to engage in any activity that might cause harm to themselves or others.

This is not a guiltless crime, obviously, the parents are responsible for their children's actions.  Justice Wooten is living in his own world of crazy that's so out of touch with reality, it makes me weep for the future of our judicial system.

Edit:  in any case, this seems like the perfect time to revisit an old classic:  Punitive Damages!


ps - I really really hesitate to bring it up because I really don't want to get into a tangent in the comments, but one of the things that's bothering me most about this case is that so much of our recent financial crisis has resulted in people trying to absolve grown adults of their responsibilities (ie, in understanding documents that they sign which tell them how much they'll have to pay on their mortgage) - and now we're trying to assign responsibilities to FOUR YEAR OLDS?  Come on.


Transor Z said...

Everyday tort law is really just about whose insurance will cover, so rationales for finding liability can seem silly and arcane. Go to law school already. You know you want to.

Cetamua said...

"one of the things that's bothering me most about this case is that so much of our recent financial crisis has resulted in people trying to absolve grown adults of their responsibilities (ie, in understanding documents that they sign which tell them how much they'll have to pay on their mortgage)"

Prepare to be bothered even more than that.

From "The Monster: How a Gang of Predatory Lenders and Wall Street Bankers Fleeced America–and Spawned a Global Crisis" by Michael W. Hudson

"Glover learned that his colleague’s art work wasn’t a matter of saving a borrower the hassle of coming in to supply a missed signature. The guy was forging borrowers’ signatures on government-required disclosure forms, the ones that were supposed to help consumers understand how much cash they’d be getting out of the loan and how much they’d be paying in interest and fees. Ameriquest’s deals were so overpriced and loaded with nasty surprises that getting customers to sign often required an elaborate web of psychological ploys, outright lies, and falsified papers. “Every closing that we had really was a bait and switch,” a loan officer who worked for Ameriquest in Tampa, Florida, recalled. ” ‘Cause you could never get them to the table if you were honest.” At companywide gatherings, Ameriquest’s managers and sales reps loosened up with free alcohol and swapped tips for fooling borrowers and cooking up phony paperwork. What if a customer insisted he wanted a fixed-rate loan, but you could make more money by selling him an adjustable-rate one? No problem. Many Ameriquest salespeople learned to position a few fixed-rate loan documents at the top of the stack of paperwork to be signed by the borrower. They buried the real documents—the ones indicating the loan had an adjustable rate that would rocket upward in two or three years—near the bottom of the pile. Then, after the borrower had flipped from signature line to signature line, scribbling his consent across the entire stack, and gone home, it was easy enough to peel the fixed-rate documents off the top and throw them in the trash.

There ought a be a freaking limit to the concept of due diligence. There is just so much an ordinary customer can do in a criminogenic environment (Prof. William Black's expression) like the one we live in right now.

The faster we all acknowledge that, the less time we'll spend trying to conceptualize the economy as a moral play between social forces and personal responsibility.

It's more complex than that, as Daniel Ariely's work amply demonstrate.

But What do I Know? said...

"The law is an ass." -- Samuel Johnson

Taylor said...

From a parent of two boys -
You were right. If you sit them down and have their attention, they could tell you what's right and wrong. But put a four year old on a bicycle racing their friend, and all they know is to peddle, just as you said about their ball going into the street. All they know is to go get it. I don't know what the age is where they can be playing and also be able to "look both ways" all at the same time - mine certainly haven't made it that far.

@ But what do I know - wasn't that quote originally from the Beadle in Oliver Twist?

Kid Dynamite said...

Yes Cetamua - the Ameriquest signature fraud is certainly not what I'm talking about in terms of personal responsibility or due diligence... It's blatantly illegal activity and should be prosecuted.

Onlooker said...

I'm with you KD, this is mad; and maddening.

I'm astounded to find out that the law holds children above the tender age of 4 responsible, and thus liable, for something like this. I really don't understand it in the context of the age of majority, etc.

But given this, what's the point?!!

So you find a 5 yr old liable for accidentally running down an old lady, or causing an accident by running after their ball in the street; what are you going to do, sue them for all they're worth?

It will always come back to the responsibility and liability of the parent/guardian anyway, right? What am I missing about holding kids responsible and subject to this kind of liability? Somebody help me out here.

Transor Z, what say you?

Steve said...

Besides TransorZ's point about how this is really an insurance play, there is also the fact that this was probably a motion to dismiss, or a motion for summary judgment.

The rules for these pre-trial motions are strict - generally, in a motion to dismiss, the moving party argues "I admit everything you say, and even so, you don't have a legal basis for this claim." In a a motion of summary judgment, the moving party argues that there are no facts to be decided (the role of a trial), just matters of law, and in that case, the judge construes the facts against the motioning party, and if under THAT scenario the motioning party wins as a matter of law, then the case is dismissed.

As the article made clear to point out, this was a pre-trial motion that simply says "sorry, you don't have a basis for kicking this out of court before a trial on the facts."

Sorry, KD, this is how uncertain law gets clarified.

How else do you think the bright rule was made? "Courts have held that an infant under the age of 4 is conclusively presumed to be incapable of negligence." ? That was a court verdict, AT TRIAL (or appellate opinion post-trial).

Kid Dynamite said...

Steve - I have not doubt this justice acted within the letter of the law. It shows how asinine our process is. Hey, after all, if it was cut and dry, we wouldn't need justices - we could have robo-rulers do it! Minimum wage workers that just looked up the answer in the case law.

A judge is supposed to use JUDGMENT.

Onlooker said...

"Hey, after all, if it was cut and dry, we wouldn't need justices - we could have robo-rulers do it! Minimum wage workers that just looked up the answer in the case law."

Yes, the law is a complicated thing. Somewhat OT, but this is why I find it humorous when people try to play lawyer and read the constitution, thinking that it can be taken purely at face value.

But you have to know how it has been interpreted through the ages in our courts to really understand what the constitution means to us in the here and now.

Case law puts lots of nuance into things. There's a reason we have lawyers and they spend years learning the law and studying cases.

Don't get me wrong, it's important to know the constitution's basic tenets that are the basis for our govt/laws, but you can't just take them purely at face value, to say the least. Some parts more than others, of course. 2nd amendment anybody? :-)

Matthew said...

Garnish her wages.

Kid Dynamite said...

Onlooker - but is it me, or do judges (at least in this case) not JUDGE anything? all they do is look up past potentially relevant case law. To me, the entire point of a judge is to exercise thought, logic, common sense, and of course case law experience. It's NOT to try to avoid taking any sort of view or using any sort of brainpower.

Wouldn't it be pretty easy to make the case that the judge's reference to a 1928 case (that's more than EIGHTY years old!) is outdated and quite likely not relevant - that the amount we've learned about child psychology, development and awareness in the past 80 years renders it outdated and moot?

Judges need to sack up and give sensible opinions - not merely interpret other monkey's opinions.

In Kid Dynamite's Sensible World, i want this judge to say "hey, Fucktards - a 4 year old cannot be negligent."

In reality, I THINK that what he's saying in this motion is "I can't say that, it's up to another judge to interview this specific 4 year old and hear more details to find out if this specific 4 year old is advanced and definitely knew the difference here."

weak-sauce, Judge. Weak... Man up.

Our tax dollars at work.

Transor Z said...

I don't vouch for the accuracy of this but this is from a law firm web site purporting to give an overview of parental liability statutes across the country:

You'll note two things: (1) nearly every state has absolute parental liability for their kids' torts, and (2) there are very low caps (usually under $10k) on parental liability.

So then you look to the parents' homeowners policy to see what it covers.

I found some law journal articles on this, not sure how many of you have access to them:

Richard G. Kent, Parental Liability for the Torts of Children, 50 Conn. B.J. 452 (1976)


April Oliver, Tender Torts: Garratt v. Dailey Revisited, 23 Child. Legal Rts. J. 31 (2003-2004)

The Oliver article quotes Prosser (aka American Tort God) as saying tort law "[is] more concerned with the compensation of the injured party than with the moral guilt of the wrongdoer."

What I always try to explain to clients is that you need to take correspondence from opposing counsel with a giant grain of salt. In a lawyer's mind, accusations are automatically broken down into their technical component parts. You have to be sensitive to how the client will perceive accusations, but as a technical matter they're just labels with no emotional content. They're terms of art, and in the context of tort law there is only one question: "Who pays?"

As with everything in life, you have to understand the angles to be able to see what's really going on. And the press ALWAYS, ALWAYS gets legal decisions wrong.

Nemo said...

Onlooker - but is it me, or do judges (at least in this case) not JUDGE anything?

Yes, that is correct. This was not a lawsuit; it was "a motion to dismiss the case because of Juliet’s age".

If the judge allowed this motion, he would be ruling that no child of that age could possibly be liable regardless of the details of the case. Even if the mother was shouting "slow down!" and the kid was yelling back "f*ck you, Mom!" and speeding up...

...or indeed any hypothetical situation whatsoever involving a child of 4.75 years.

This ruling is not about whether the kid is liable. This ruling is about where the "bright line" gets drawn for how old you have to be to be capable of liability in principle. Apparently, existing precedent puts that bright line at 4 years. Where would you put it, exactly?

Kid Dynamite said...

TZ - NH: unlimited liability!! Aiyahhh!!!

I want to get back to Steve's point: "how do you think the bright-line rule was made? "Courts have held that an infant under the age of 4 is conclusively presumed to be incapable of negligence." ? That was a court verdict, AT TRIAL (or appellate opinion post-trial)."

Steve - I didn't respond to that very well: if there is a extensive record of case law establishing that at age 4 kids are incapable of negligence but at 4 1/2 they are definitely capable, then I would agree with you - let this case proceed and let the parties involved evaluate this specific child..

But I am FAIRLY CERTAIN that no such extensive record of case law exists . According to the NYT, this judge cited ONE case. One. absurd. So ONE ruling becomes the basis for this absurd ruling, and next time they look there will be TWO rulings, because of the insane process of relying on any and all prior decisions instead of common sense.

in any case, this is as good a time as any to revisit an old favorite:

Kid Dynamite said...

Yes Nemo - exactly, and that's what a lawyer friend emailed me as well..

note, by the way, that above in the comment to Steve I incorrectly deduced that there was only one prior case referenced - my mistake - there were cases dating back to 1928, not ONE case from 1928. my bad

so, Nemo, what would I do? I'd use common sense. I, the judge, would ask "this is a little child - what evidence is there that she was negligent?"

but i guess the point is that I would do that because i'm not a lawyer and I don't understand how the system works - that there is a place and a time for that, and that this is NOT the place and time for that. It should be. It's going to waste everyone's time and money instead.

That question (what evidence is there) is of course exactly the question that will be asked at the eventual trial.

Would it matter if the mom was yelling "slow down" ?? What if the mom was yelling "slow down" and the kid didn't say anything? What if the kid DID yell "Fuck you mom!" I'm still not sure that has anything to do with negligence. The only way it'd be clear cut for me is if the 4 year old was yelling "fuck you mom, I've been practicing in the backyard with Bobby, and I'm pretty sure that if I hit an old lady at this speed, i can kill her!"

so anyway, the system sucks.

where would I draw the bright line? I don't think it has ANYTHING to do with past case law - i think that's key. I think it has to do with what we know about child development.

At what age do we feel comfortable letting our children ride their bike in the street without training wheels unsupervised? That's a better starting point than "4 years old"... (and I think the answer is a lot higher than 4 years old)

At what age do we feel comfortable leaving our kids home alone without a baby sitter? At what age do we feel comfortable letting our kids near dangerous things like knives and guns? These are the lines for understanding and negligence.

Four isn't even close.

Nemo said...

I'd use common sense. I, the judge, would ask "this is a little child - what evidence is there that she was negligent?"

Which is exactly what will happen during the actual lawsuit.

The judge's decision is not about this one case. It is never about just one case. It is about one case plus any precedents from the past plus the precedent you are setting for all cases into the future, forever.

This is especially true when we are talking about an attempt to dismiss a lawsuit out of hand without even listening to what happened. Of course sometimes you want to dismiss a lawsuit without even listening to what happened; for example, if someone is suing an infant, that is all you need to know. This judge was being asked to rule on where that "I don't need to hear anything except the child's age" line gets drawn.

Based on historical precedent, he says four years.

The point of all this precedent is to try to have some consistency in how the law is applied. Leaving it up to each Right Honorable Kid Dynamite to make it up case-by-case would result in justice being arbitrarily tied to the whims of individual judges. (Of course that happens to some extent anyway because judges are human. But the goal of the system is to minimize it.)

Kid Dynamite said...

Nemo -

why have Honorable Judges involved in this step of the process at all, then? Why not have BAC's robosigners simply type in the case word search "bright line for child negligence" into the database, pull up the results, and cut down on the pork - rubber stamping the approval of the motion and allowing the case to proceed to an actual intelligent person who will listen to the facts and promptly reject it?

csissoko said...

As Nemo has been explaining to you, your issue seems to be not with judges, but whether or not we should have a jury system at all. If we have a jury system then judges need to make decisions about what goes to a jury and you shouldn't expect to agree with all those decisions. (If the judge is really that flaky, you can trust the jury to correct him, so it doesn't really matter.) It seems to me that you'd prefer to live in continental Europe where judges do make these sorts of decisions.

Secondly, you write "Wait - so if I'm driving down the street, and a 5 year old runs out in front of me and I run him over - it's his fault for negligence, right? He should know that he has to look both ways, right? He has presumably been told that already, right?"

I think it is precisely because you agree with the judge that this behavior constitutes contributory negligence either on the part of the child or the parent, that you don't expect to lose your license and a big chunk of money for getting into such an accident. If there were no negligence on the child's side, our penalties for drivers who hit children would be much greater.

Dynamite-in-law, Esq. said...

@Transor Z

Actually, parents are generally NOT liable for their child's negligence. If you take a look at the "additional details" column on that multistate chart, you'll see that most states limit parental liability to acts that are "intentional," "willful or malicious," "criminal," or something similar.

csissoko said...

Dyn-Esq.'s comment probably demystifies the whole issue. If the parent's can't be held liable, then holding the child liable -- for an accident that let's remember resulted in a death -- is highly likely to result in the parents paying whatever judgment is reached. Letting a jury mull over what is "just" in this situation is not unreasonable.

Also, keep in mind that negligence is a civil action, so there's no issue of a "record" that will follow the child for life.

Dynamite-in-law, Esq. said...

I've been going back and forth over email with KD this morning, and I covered a lot of the same ground as other commenters here, so I figured I might as well move my thoughts into the comments:

11:19 PM: I think this case sounds worse than it really is.

NY law has a bright line rule that kids under 4 can't be found negligent.
This does NOT mean that everyone over 4 is treated exactly the same -- negligence in children is judged according to the standard of a reasonable child of similar age, intelligence, and experience -- essentially a sliding scale until you're a teenager. So, when the case goes forward, the question will basically be, should a 4 year old at a similar developmental level to this girl be expected to behave more responsibly than she did?

It's also important to keep in mind the procedural posture of the case -- the judge was ruling on a motion to dismiss. When you make a motion to dismiss, you're basically saying, even if everything the plaintiff alleges is true, there is still no legal liability. So, the judge isn't allowed to determine the actual facts of what happened at this point -- he has to accept the allegations in the complaint as true for the purposes of the motion.

So, the plaintiff's complaint says: this kid was riding her bike negligently and as a result this old lady got hurt. The defendants say: she's too young to be found negligent, dismiss the claim. The judge says: no, the bright line under NY law is 4, she was over 4, so the claim survives.

Of course, you can argue whether 4 is the right cut off point. I think a number of states use 7 as the cut off point, but some states actually have no bright line cut off at all. For extremely young kids, it really makes no difference -- no one is ever going to be found negligent according to the standard of behavior of a reasonable 2 year old. For the older kids, the question is, suppose you have, for example, a five year old who is acting incredibly recklessly even for a five year old -- should they be completely immune from liability? I'm not sure that's an obvious question.

-Dynamite-in-law, Esq.

P.S. Another related point -- in most states parents aren't vicariously liable for their children's negligence (although they typically are liable for intentional or malicious acts). They can be liable for negligent supervision (which is probably what the claims against the parents in the NYTimes story are for), but that only applies if they were, or should have been, actually supervising the child at the time. So, suppose a kid is at school or at a friend's house and carelessly hurts somebody -- you can't go after the parents because there's no vicarious liability and no supervisory negligence. There's a huge amount of variation between states on these rules though.

Dynamite-in-law, Esq. said...

10:24 AM: Here's how it's going to work in practice:

First, in some cases the claim will be thrown out on a motion to dismiss. That will happen when the behavior alleged in the complaint just can't amount to negligence given the age of the child. The younger the kid is, the easier it will be to get the claim dismissed. It didn't happen in the NYTimes case, because apparently the judge thought that the girl's behavior as alleged in the complaint (and we haven't seen the complaint, so we don't really know the specifics of what it claimed) might have been negligent even by the standards of a 4 year old.

Next, if the claim survives a motion to dismiss, it might get thrown out on summary judgment. On summary judgment, the parties can submit affidavits and other evidence about the actual specific facts of the case. If there's a dispute between the parties about specific facts, and those facts are key to whether there's liability (e.g., the plaintiff says the kid was racing her bike along the sidewalk, popping wheelies, and weaving in and out of pedestrian traffic, while the defendant says she was slowly wobbling along held up by her training wheels), then the claim survives summary judgment -- the judge isn't allowed to decide who's right and who's wrong at this point. But if the parties agree on the facts (or if one side's version of the facts isn't rebutted by the other), but just disagree on the legal significance (i.e., does it amount to negligence), then the judge can decide the legal issue, and will dismiss the claim if the facts don't arise to negligence.

Finally, if the case survives summary judgment, it will go to trial. But, realistically, no one's going to be questioning the kid. First of all, by the time you get to trial it's probably at least a year later -- maybe 2 or 3 years -- and you're not going to ask a 5 year old to recount the details of something that happened a year ago when she was 4. The people you're going to be examining are the parents and whatever other witnesses to the accident were around. If the stakes are high enough you might have things like experts in child development testifying about the level of competence, awareness, etc. of a typical child of that age. Then the judge (or jury) will decide based on the trial testimony what exactly happened factually, and given the age of the child, whether that was negligence.

Realistically though, 99 out of 100 times the parties (or their insurers) are going to settle the case long before it goes to trial.

-Dynamite-in-law, Esq.

Dynamite-in-law, Esq. said...

11:14 AM: I'm not necessarily defending every piece of it -- I'm just describing how the system works.

But there's two separate parts here -- the procedural rules (motion to dismiss, summary judgment, etc.) and the substantive legal standards (child negligence, parental liability, etc.).

As far as the procedural rules go, it may not sound like it from the description I gave, but they're actually designed with judicial efficiency in mind. They make more sense if you realize that they're trying to serve (at least) three distinct goals: (1) dismiss loser claims as early in the process as possible, but (2) give litigants a full opportunity to submit evidence to the court, and (3) let a jury, not a judge, make most factual determinations.

The substantive standards on the other hand are a lot tougher.

Here's a question for you: what do you think the right rules should be? Bright line age cutoffs? What age? Sliding scales? Based on what factors? Parental vicarious liability? Is it strict liability or a negligence standard? If it's negligence, what standard are you applying to the children? If it's strict liability, how do you define causation? Should we take the courts out of it and use no fault insurance (e.g. no fault auto insurance, or workers' comp)? How do you deal with the difficult causation issues (no fault in well defined areas of activity like driving or working is absolutely trivial by comparison). Should it be decided in the first instance by expert commissions rather than the courts? If so, what standard do they apply?

There are tradeoffs involved in every one of these choices, and every one will either have edge cases where somebody gets screwed or will impose costs in perverse ways.

So the question is, what do you think we should replace the current system with, and how sure are you that it would be better than what we've got?

-Dynamite-in-law, Esq.

Dynamite-in-law, Esq. said...

12:29 PM:

KD: a judge will have to evaluate this specific child.

DIL: No, a jury will have to evaluate this specific child. If you want to get rid of civil juries, then, yeah, you could make things more efficient. But, for better or for worse, we have jury trials, and that is explicitly in the constitution of (I believe) every single state, and the Bill of Rights for federal civil trials.

In our system, juries are supposed to make the factual determinations. In order for that to mean anything, you can't allow judges to make factual determinations that would decide the case. But juries are expensive, inconvenient, and time consuming, so we don't want to use them any more than we have to, so we only bring them in when everything is finalized and ready for trial. So then we have other procedures like motions to dismiss and summary judgment which let you get rid of a case before trial, but without having the judge make factual determinations.

Again, if you want to argue for getting rid of civil juries (and I'm not unsympathetic), then you would be able to streamline the process some. But short of that, procedures like motions to dismiss and summary judgment actually make the process more efficient. And even if you got rid of juries, you would still want motions to dismiss and summary judgment, because they let a judge get rid of cases before the factual record is fully developed. There has to be some sort of ordered procedure to the court process: when arguments/evidence need to be filed, when the court decides certain issues, etc. Otherwise, it would be completely unworkable.

KD: I think judges should JUDGE, Dynamite-in-law,Esq. that's it. There's nothing in the constitution about this crap - and past rulings, which may be incorrect in their own right, become the basis for future ruling, which spirals out of control.

DIL: Well, that's a different issue entirely. In some states, negligence age cut offs are statutory rules passed by the legislature. In NY, like probably most states, it's a common law rule, meaning it was made up by judges and is a rule only on the basis of precedent.

When judges are dealing with common law rules, they absolutely can -- and should -- depart from prior cases when they disagree with their reasoning. BUT there's also a hierarchy of courts. This decision was in the Supreme Court (which, despite its name, is NY's trial court -- the bottom of the ladder). Above the Supreme Court is the Appellate Division, and then the Court of Appeals (what would be called the Supreme Court in most states). If the only prior cases are from the Supreme Court, then the judge could basically ignore them and go his own way. But, if there is higher court precedent, he's bound by it. If the parties want to try to get it changed, they need to appeal and ask the higher court (whatever level the precedent is at) to change it. That's just the way a hierarchical system works -- without that you've got no uniformity in state law. I haven't searched the case law, but I would be very surprised if there wasn't higher court precedent on such a basic legal issue.

Dynamite-in-law, Esq. said...

12:29 PM, cont'd:

KD: It's one thing if it's been well established via hundreds of previously examined cases that a 4 year old cannot tell the difference, but a 4 1/2 year old can. but citing ONE 83 year old case doesn't make that point. it's ludicrous.

DIL: But that's not what happened here. Look at the first line of the NYTimes article: "Citing cases dating back as far as 1928 . . ." This isn't about a single 83-year-old case -- believe me, judges are extremely unimpressed if the only legal authority you can cite is more than a few decades old. It's about a rule that's been consistently followed by many other cases over the course of 83 years.

Even if there is no higher court precedent, all of the previous cases are at the Supreme Court level, and therefore the judge here isn't bound by them, uniformity and predictability are important. The burden should be on the judge to justify departing from a longstanding uniform rule. So the question goes back to you: What should the rule be? 5? 6? 7? 12? And why are you sure that's better than the current rule?

Again, I'm not saying 4 years old is definitely the best rule. I'm just saying it's a difficult question. People have a knee jerk reaction on the basis of a single bad-sounding case and think they know how to "fix" a system they really don't understand. I think I probably feel about the same way you do when somebody who's completely ignorant of how the financial sector works hears about the flash crash and then says "obviously we should outlaw high frequency trading."

By the way, how would you feel about the judge's ruling if the facts in the story had been worse? Suppose, for example, that these kids were playing a game where they tried to buzz their bikes as close to the pedestrians as possible without colliding. Or suppose shortly before they knocked over the old lady, they had collided with several other people on the sidewalk and had been angrily warned multiple times to be more careful. Would you be ranting about a terrible judge? Or would you be praising him for teaching these kids a lesson about personal responsibility?

-Dynamite-in-law, Esq.

Transor Z said...

@DIL at 12:47 pm:
Very good and important point. My comment overstated the scope of parental strict liability by not separating negligent supervision from intentional torts. Only a minority of states impose vicarious liability on parents for their kids' negligence -- although important to note that most do when it comes to the kids' motor vehicle negligence (again, the underlying insurance thing).

Kid Dynamite said...

csissoko: yes - my point is that the judge's role should be to prevent this case from ever reaching a jury, where there is a zero percent change that the jury will rule against the 4 year old. In reality, our entire system is set up to protect the victim in the 1/100th of 1 of the cases where they DO convict the 4 year old - because what i'm labeling "ZERO CHANCE" is actually non-zero.

as for running over a 5 year old in my car - i think you may have missed my sarcasm...

csissoko said...

KD: Are you claiming that every driver who hits and kills a 5 year old should be convicted of negligent manslaughter, because they didn't exercise their duty of care towards a human with a known propensity to run out in the street?

Kid Dynamite said...

no csissoko, i'm saying it's quite clear that the "he was 5 years old, he should have known better" line of reasoning fails miserably as defense for every driver who hits a 5 year old.

That doesn't mean that if you're driving the speed limit in a school zone and you hit a kid that you will or should be convicted of negligent homicide - but it does mean that if you think your defense is going to be "hey - that kid was 5 years old, and the bright line for age decision awareness is 4, so it's his fault" then you're going to be up shit's creek.

{obviously, your defense will be, "I was driving 20mph, carefully looking around, but this kid came out of nowhere and I couldn't stop"}

please, don't belabor this point, csissoko

csissoko said...

I'm not trying to belabor the point, but I don't understand how when you say "this kid came out of nowhere and I couldn't stop", you can claim that this does not imply some kind of negligence on the part of the child and/or his/her supervisor.

Kid Dynamite said...

csissoko - we all KNOW that kids don't have the responsibility to monitor their primal urge to chase each other, their ball, or other random things into the street. that's why we have super low speed limits in densely populated areas, and even lower ones in school zones - because if you're actually driving 20mph and paying attention, it's probably actually difficult to have a kid come out of nowhere.

stop - this point is a dead end. little kids are not and never will be liable when they run into the street! That doesn't mean that you the driver will be liable, but it does, POSITIVELY mean that you won't be able to sue the 5 year old for negligence for damaging your vehicle.

csissoko said...

KD: In my understanding at least, negligence and liability for negligence are distinct concepts. Perhaps this is why we are having difficulty understanding each other.

I'll stop belaboring the point now :)

Steve said...

KD wrote: "Would it matter if the mom was yelling "slow down" ?? What if the mom was yelling "slow down" and the kid didn't say anything? What if the kid DID yell "Fuck you mom!" I'm still not sure that has anything to do with negligence. The only way it'd be clear cut for me is if the 4 year old was yelling "fuck you mom, I've been practicing in the backyard with Bobby, and I'm pretty sure that if I hit an old lady at this speed, i can kill her!"

KD - finding those facts, which you seem to agree are important, is the entire point of the trial. Not pre-trial motions. Since there appear to be circumstances in which you MIGHT find that the child was negligent, then this case should go to trial. Simple as that.

You are asking the judge to hear testimony, lawyers to submit depositions and assertions of fact, and the judge to try the case, before the case goes trial!

Lord BK said...

"I really really hesitate to bring it up because I really don't want to get into a tangent in the comment"


Transor Z said...

@KD & csissoko: A lot of states have comparative negligence schemes in which a party's liability for negligence is offset to the extent (expressed as a %) to which the other party is also found negligent. Does that help?

BTW, the case law on child negligence continues to be controversial.

Let me send the question back to you, KD. An 87 year old accidentally gets knocked over by a four year-old being a four year-old. She breaks a hip and dies a month later. The kid's mother was there and didn't really do anything wrong. Say the kid had been pedaling along really nicely for 10 minutes before the accident so the mother, who was only a few feet away, hadn't been worried about the old lady.

Where should the money to pay for the old woman's pain and suffering and out-of-pocket medicals come from?

Kid Dynamite said...

yes steve - you're right - i'm asking the judge to get some more information. Kinda like "innocent until proven guilty" i guess. I want the standard to be: this is a little kid - do you have any evidence that makes this a special case?

Instead, the standard is, "this is a little kid, but she's 9 months older than the cutoff which has been established"


lord BK - actually, it wasn't a fail - no numbnuts brought up the point about how it's all the fault of the evil banks who tricked poor innocent borrowers - that's what I was afraid of.

Kid Dynamite said...

TZ - an interesting point that some NYT commenters made was that debate seems centered around WHO is at fault - the parents or the kid - while sometimes no one is at fault - accidents happen! It's a sad statement about our society that we're so hellbent on assigning blame, but I would also guess that most accidents, like this one, can probably be prevented.

In your most recent example, however, though, it sounds like the mother is wrong - sidewalks are not for peddling bikes on - and that's the mother's job to enforce, since the almost-5-year-old doesn't get that concept.

If this is a special "bikers and walkers share the road" sidewalk, and there's really no fault? well then, the old lady pays (medicare, probably!)

(note: it's still the parent's fault - in my logical world, at least - if they were upstairs in the apartment but sent their kid down to play around in the sidewalk unsupervised. What's really interesting is the case Dynamite-In-Law Esq brought up of if the kid is at a friend's house.. then the friend's parents are presumably bearing the responsibility of watching the children! that gets sticky!)

Dynamite-in-law, Esq. said...

KD, you seem to be going in two directions at once. First, you've said several times that of course the parents should be liable for their kid's acts. But, now you say:

"sometimes no one is at fault - accidents happen! It's a sad statement about our society that we're so hellbent on assigning blame"

But that's the whole idea behind NOT having vicarious parental liability for a child's negligence (it's the same rationale for the default tort standard being negligence rather than strict liability). If the parents did nothing wrong, then why should they be on the hook?

By the way, vicarious parental liability doesn't avoid determining whether the kid was at fault. To know whether the parent should be liable, you still need to distinguish between, for example, the kid carelessly veering into the old lady and the old lady carelessly stepping in front of the bike.

Dynamite-in-law, Esq. said...

More emails -

2:55 PM: I think we're starting to go around in circles here, but let's see where this goes.

The whole point of having a jury is that we DON'T want judges making factual determinations. That's the entire function they serve in the system. If you don't want civil juries at all, that's one thing. But if you have them, and still let the judge make important factual rulings first, then what's the point? The jury's just a sham.

About the judge "making determinations in each case." Again, you've got to remember, this was a motion to dismiss. The only thing the judge has to go on at this point is the complaint. There are no affidavits from witnesses swearing to what happened, no deposition transcripts, no courtroom examinations in front of the judge. Just allegations in a complaint. The claim gets thrown out only If the allegations are insufficient to state a valid legal claim. If you want the judge to already start hearing live testimony and making credibility determinations at this point, then you've just destroyed any efficiency gains from allowing motions to dismiss in the first place.

Suppose you're the judge (and imagine you get to make up all the rules as you go along). You get a complaint that says an X year old kid acted negligently and hurt somebody. What do you do?

You might say, bring in the witnesses and let's get to the bottom of things. Figure out the facts as best you can, find out how mature this kid is, etc. Then decide what's the right outcome. Okay, but now you've slowed the entire judicial system to a standstill (unless you're prepared to pay to dramatically increase the number of judges in the system). You've pushed the cost of defending the average lawsuit through the roof (because you've eliminated the possibility of getting a case thrown out before fact discovery). You've inconvenienced a lot of people who have to come to court to testify. (Not to mention, you've eliminated the jury,)

Okay, so instead you might say, as a first pass, I'll just look at the allegations in the complaint, and see if they are so insufficient that I can just throw it out. (That's what a motion to dismiss is about.) So now what do you do with the complaint about the X year old? You might have a bright line rule that says kids under Y can't be negligent. Then, if X < Y you can just throw it out. But then you have to decide what Y should be.

But what if X > Y (or you don't want to have a bright line rule at all)? You could just hold everybody older than Y to the same adult standard, but that would be absurd -- no one wants that. Or you could have some sort of sliding scale where you judge negligence compared to what's reasonable to expect from kids at the same developmental level. That's what happened in this case.

Dynamite-in-law, Esq. said...

2:55 PM, cont'd: So which is your complaint about this case?

1) The judge should have made individual determinations about this particular kid. That's just not the way our system works, and wouldn't be workable without completely changing the entire system. Remember, a streamlined motion to dismiss (i.e. before any factual development/discovery) is GOOD for defendants because it gets rid of a lot of bad cases cheaply and quickly.

2) A 4 year old can categorically never be negligent. If that's your complaint, then you're just arguing for shifting the bright line rule. Fine, then what's the right age for a bright line? And how do you justify that new age? Keep in mind, changing a settled rule imposes real costs. I would guess that insurance companies who insure children's recreational facilities, for example, are aware of the child negligence rules and take it into account when writing policies.

3) A reasonable 4 year old couldn't be expected to have acted more responsibly than the girl in this case was alleged to have acted. That's the specific argument that the judge in this case rejected. This seems like a plausible complaint, but it really depends a lot on exactly what the kids were alleged to have done. Keep in mind, based on the NYTimes story we know very little about what was alleged beyond that two kids were racing their bikes on the sidewalk and they ran down an old lady. I'm not prepared to say (without at least seeing the complaint) that there's absolutely nothing that these kids might have done in the course of running down the old lady that would place them beyond what can be reasonably expected of a 4 year old. If you are, that may be a reasonable position, but it hardly seems like enough to place this judge "in his own world of crazy that's so out of touch with reality."

-Dynamite-in-law, Esq.

P.S. I disagree 100% that "you can't teach a 4 year old a lesson about personal responsibility." True, you can't expect anything remotely near the level of personal responsibility we demand from adults. But even a 2 year old knows there are some things she isn't supposed to do, understands some of the consequences of doing things she isn't supposed to (including getting hurt or hurting others), and feels sorry/guilty when she does something wrong. Now, a typical 2 year old's level of self-control, awareness, and knowledge is so low that I can't imagine ever describing one as "negligent." And maybe you could say the same thing about a typical 4 year old, but it's just wrong to say that personal responsibility is completely absent at that age. That sounds like what you hear from the parent who watches her son bullying the smaller kids and taking their toys away, and just shrugs and says "kids will be kids."

Dynamite-in-law, Esq. said...

3:07 PM: You've got to distinguish between two separate things: the parent/guardian's own negligence, and the parent's vicarious liability for the child's negligence.

The first always exists -- if you hand the kid a can of gasoline, and someone gets hurt, YOU are directly liable for negligence because your own actions were negligent. This is also the case with negligent supervision. If a kid hurts someone because you were poorly supervising him, or not supervising him at all when you reasonably should have been, then you are directly liable for your own negligence.

On the other hand, suppose your kid is out playing in the backyard, and ends up doing something that hurts another kid. You can't be directly liable, because you didn't do anything negligent -- there's nothing unreasonable about letting kids (over some age) play in the backyard without watching their every move. If the state has vicarious parental liability for a child's negligence, then you will be liable indirectly even if you were not personally negligent. But this is not typically the law in US states. Generally, there is no vicarious parental liability unless the kid does something intentionally malicious. If the kid is merely negligent, the parent is off the hook.

That's where holding the kid directly liable for his own negligence comes in.

-Dynamite-in-law, Esq.

Kid Dynamite said...

DIL @ 3:21pm - I thought I clarified within that comment that usually someone can be found to be at fault, and I would guess that this case is the same. And i'm pretty fucking positive that it's not the little girl.

Dynamite-in-law, Esq. said...

Prof. Volokh just posted about this case:

He quotes some of the judge's opinion and makes some of the same points that have been made in this comments thread. He suggests at the end that the bright line age should be raised to reduce litigation.

It seems like a very readable summary to me, but then again, I'm a lawyer.

Kid Dynamite said...

Thanks DIL Esq, for the link to that, which links to the actual judgment:

1) I LOVE how the girl is referred to as an INFANT in the judgment. I mean...surreal... that leads me to

2) the point you lawyers have been making in these comments: "The sole issue before the Court is whether an infant aged four years, nine months, is non suijuris, incapable of negligence as a matter of law, under the facts presented."

I am saying that once you classify her as an INFANT she's incapable of negligence.

So the first thing the court needs to do is stop referring to her as an infant...

as for the professor's comments:

this terrifies me (the second part - the first part is again what the lawyers in my comments have been saying):

"5. Recall that the court is just saying that whether the child was negligent is a matter for the jury — and the question is whether the 4-year-old is acting reasonably by the standard of a “reasonably prudent child of that age, experience, intelligence and degree of development and capacity.” I suspect that a jury would not find the girl liable under this standard; but I also suspect that the insurance company will settle, to avoid the cost and risk of litigation, though probably not for very much, given the likelihood that plaintiffs wouldn’t win at trial."

It's sick that the insurance company will settle for anything at all - a flaw in the system, obviously, as there's certainly a cost to defending the eventual trial. My step-mother used to work for an insurance company that had to deal with ABSURD cases non-stop - listening to her stories will make you hate our system.

I guess the way to combat it is for the insurance company to defend itself in court and countersue for punitive damages (cue Jerky Boys clip! - and yes, I know that wouldn't really be countersuing for punitive damages)

DIL esq: I also find the Prof's conclusion reasonable:

"But I’m inclined to say that the wiser move for a state legal system would be to set the absolute bar to liability for the child (setting aside the possibility of the parent’s being liable for negligent supervision) at a considerably higher age — maybe seven, or maybe even older. Otherwise, the result is more litigation with no real likelihood that we’ll have any sensible jury decisions in such litigation."

getyourselfconnected said...

Wow this one was a hot topic!

Nothing to add, it's all been covered but thanks for the read.

Kid Dynamite said...

oh - I have a great tangent topic for the lawyers out there, from a comment on Prof Volokh's post:

"Any child deemed “sui juris” ought to be entitled to choose his sex partner, at least."

i THINK that's related to the layman's objection (which I find quite sensible): "why can I die for my country but not drink in it?" (referring to 18 year old draft law, but 21 year old drinking law)

If we say that 18 year olds are responsible enough to go to war, then how can we possibly be logically consistent in saying that they are not responsible enough to drink alcohol?

If we say that children under the age of 14/16/18 whatever the law is in your state are incapable of making decisions about sexual activity, then aren't we saying they aren't mature enough to act responsibly? I know this isn't quite the same as negligence, but it has to be somehow related, no? have at it...

Dynamite-in-law, Esq. said...

KD asked me: one question for you - all these prior cases that are cited - what are they? they aren't jury trial results, right? they are similar cases of motion to dismiss? or different points in the judicial chain?

Me: There's really no way to tell what stage the case was at without looking at each case -- some are probably on motions to dismiss, while others may be appeals after jury trial.

On the other hand, you can tell what court the cases are from by the citation after the case name. Any citation in the format XX N.Y. XX is from the Court of Appeals (New York's highest court). XX A.D.2d XX is from the Appellate Division (the intermediate appellate court), and XX Misc. 2d XX is generally from the Supreme Court (the trial court).

So this confirms that both the bright line 4 year old rule and the sliding scale are from the Court of Appeals.

KD: isn't there something inherently strange in relying on prior rulings to establish new rulings - in that you assume the prior rulings were correct, and reinforce their decisions regardless of if they are really correct or not in hindsight?

that's a long winded way of saying that whomever came up with 4 years old as the cutoff made a mistake. it should be higher, and i don't think that's hard to prove. 4 is a random cutoff that got established at some point, and now gets reinforced and strengthened each time.

Me: It certainly is possible that a rule that gets established at one point in time will get repeated and carried forward without much thought by later courts. But I think it happens a lot less than you might think. Trial court judges tend not to put much weight in prior opinions by other trial courts -- they're usually pretty willing to go a different way despite the (non-binding) precedent. They're bound by higher court precedent though. Appeals courts tend to be similar -- they have to follow if they're bound by a higher court, but if the only precedent is at their own level, they're often pretty willing to rethink it (this depends a little more on the specific court -- some intermediate appeals courts have specific rules about how a prior precedent can be overruled).

The catch is, often there's no obviously "right" rule. There are different rules, with different pros and cons. And stability and predictability are important too. So, it basically puts the burden on the person arguing for overruling precedent to show why the new rule is clearly and definitively better. This makes some sense -- you don't want the basic rules of tort and contract to be changing left and right every time a judge thinks he has some better idea.

In this case, if the defendants wanted to establish a different rule, they would have to appeal up to the Court of Appeals, which would then be free to reconsider the current rules.

2 more quick points:

1. The disagreement with this case is not necessarily all about the precedents. You might just think the judge applied the precedents badly given the specific allegations in this case.

2. The courts aren't the only players in the game. Tort rules tend to be mostly judge-made common law, but if it wanted to the N.Y. legislature could pass a law tomorrow changing the age cut off to 7 or 10 or whatever. That would supersede any case law to the contrary.

-Dynamite-in-law, Esq.

Dynamite-in-law, Esq. said...

In law, "infant" is a term of art that refers to anyone under the age of majority. This judge just has a stuffy, old-fashioned style -- most lawyers would say "minor."

Anonymous said...

Kid, here's my wisdom. When riding my bike on a highway closed to cars for Sunday,I was sickened by the little kids who would just veer left or right without warning. Their parents may not have been teaching them about going straight, but sheesh, they're just kids. So I stopped riding on Sundays because the thought of crushing a child at 20mph closing speed is sickening. No family should have to pay so high a price if I cannot avoid hitting junior. The point is adults have to err on the side of caution.

I have another great story about how my 4 1/4 year old nephew stuck his hand up a woman's shorts, but I'll deny you the thrill. Guess what, if you're four you can't form the intent to feel up a woman's muffin if you're only trying to catch a butterfly at the time. The point is, when you relate the story to your sister later that day, make sure she's not a lacerating femi-nazi with no sense of humor who is going to be offended by your contextually justified use of the word 'pussy,' because she went to Yale, and 'no women she knows use that word,' which is just bullshit.

Mark said...

Kid, this is great stuff. DIL explains things so cogently that even a lawyer could understand it. I tend to agree with the point that the legislature should just pass an appropriate law citing the age of infancy (is that the right term?).

As for an 18 year old having to fight for his life in a shithole like Iraq and then coming home and not being able to drink - THAT IS GODDAMN INSANE and there is NO justification for that.

Kid Dynamite said...

Ladies and Gentlemen - we have a Quote Of The Day winner in this very comment section! Anon @ 11:30pm:

"I have another great story about how my 4 1/4 year old nephew stuck his hand up a woman's shorts, but I'll deny you the thrill. Guess what, if you're four you can't form the intent to feel up a woman's muffin if you're only trying to catch a butterfly at the time"

scharfy said...

Wow, I need to get a life - I read this whole thread.

One comment KD, and I tend to detect this concept in many of your posts. Apply common sense. At all times.

I wonder if that concept (which is damn laudable for most endeavors) applies to the legal realm.

Seems our system was designed primarily for excessive minutia, a slow moving, detailed oriented structure that grinds out decisions based on existing laws, not common sense.

This design has some pros and cons.

We are witnessing the cons, but I assure you the "common sense" approach to applying the law might have some downside as well. (i.e. activist judges)

Its the difference between being a trader and a lawyer. Lawyers deal in procedure, traders in observable reality. (broad generalization)

I think this case probably exemplifies our litigious society, but our robust legal system (which gives everyone their day in court) isn't perfect.

Common sense or procedural consistency? Sometimes the two are mutually exclusive...

Daniel said...

This just reinforces my hatred of old people. I just want them to get off the planet.