claim against child in torts?

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37duncan

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claim against child in torts?

Postby 37duncan » Sat Dec 10, 2011 9:54 pm

child, lets say 5yrs old, commits intentional tort/negligence while under care of mother
only bring claim against mother for kid's misdeeds?
i don't remember covering any rule/cases that say can't bring claim against kid
I know that kid doesn't have $ so doesn't make sense to bring claim, right?
how should I deal with this in an exam?

Thanks in advance.

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jim

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Re: claim against child in torts?

Postby jim » Sat Dec 10, 2011 9:55 pm

Sue the kid too. He doesn't have money, but it's done for insurance reasons. (warning: 1L)

NonTradHealthLaw

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Re: claim against child in torts?

Postby NonTradHealthLaw » Sat Dec 10, 2011 10:00 pm

according to the rule of 7s, a 5-year old is legally incapable of negligence

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swilson215

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Re: claim against child in torts?

Postby swilson215 » Sat Dec 10, 2011 10:05 pm

NonTradHealthLaw wrote:according to the rule of 7s, a 5-year old is legally incapable of negligence


for negligence purposes, a child would still be liable, but wouldn't be held to the "reasonably prudent person" standard; rather he would be measured against a reasonably prudent child of like age, intelligence, and experience.

marmot8

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Re: claim against child in torts?

Postby marmot8 » Sat Dec 10, 2011 10:05 pm

1. For intentional torts, we learned that the majority says kids under 7 can't commit an IT as a matter of law.

2. For negligence, we learned the Rule of Sevens: <7-incapable of committing negligence, 7-14-presumed to be incapable of negligence, >14 capable of negligence.

3. Negligent supervision is hard to prove.

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AreJay711

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Re: claim against child in torts?

Postby AreJay711 » Sat Dec 10, 2011 10:07 pm

marmot8 wrote:1. For intentional torts, we learned that the majority says kids under 7 can't commit an IT as a matter of law.

2. For negligence, we learned the Rule of Sevens: <7-incapable of committing negligence, 7-14-presumed to be incapable of negligence, >14 capable of negligence.

3. Negligent supervision is hard to prove.


See we learned something different. This is just proof that it is all about what the prof. says.

NonTradHealthLaw

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Re: claim against child in torts?

Postby NonTradHealthLaw » Sat Dec 10, 2011 10:10 pm

I believe it's a jx split whether to apply reasonable child or rule of 7s

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swilson215

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Re: claim against child in torts?

Postby swilson215 » Sat Dec 10, 2011 10:19 pm

AreJay711 wrote:
See we learned something different. This is just proof that it is all about what the prof. says.


+1.

Renzo

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Re: claim against child in torts?

Postby Renzo » Sat Dec 10, 2011 10:21 pm

Jurisdictions vary. I can't remember for sure, but I think the NY rule is no torts whatsoever against children under seven, but you can sue the parents for negligent supervision.

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cinephile

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Re: claim against child in torts?

Postby cinephile » Sat Dec 10, 2011 10:22 pm

You could sue that child under the Massachusetts rule if the kid wasn't acting like a reasonably, prudent 5 year old of like understanding and experience.

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DocHawkeye

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Re: claim against child in torts?

Postby DocHawkeye » Sat Dec 10, 2011 10:38 pm

Garratt v. Dailey held that a five-year-old could be held liable for an intentional tort. Section 10 of the Restatement of Torts (Second, I think) states that a child under five years old is not capable of negligence. Otherwise children are capable of negligence if they fail to use the standard of care of a reasonable child of like age and intelligence.

shock259

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Re: claim against child in torts?

Postby shock259 » Sat Dec 10, 2011 11:29 pm

marmot8 wrote:1. For intentional torts, we learned that the majority says kids under 7 can't commit an IT as a matter of law.

2. For negligence, we learned the Rule of Sevens: <7-incapable of committing negligence, 7-14-presumed to be incapable of negligence, >14 capable of negligence.

3. Negligent supervision is hard to prove.


This is what we learned.

37duncan

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Re: claim against child in torts?

Postby 37duncan » Sat Dec 10, 2011 11:38 pm

this is really helpful
thanks everyone!




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