The Volokh Conspiracy
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The Utah Supreme Court last week issued another detailed and interesting tort law decision, in Nielsen ex rel. C.N. v. Bell ex rel. B.B.. First, the facts:
Ms. Nielsen was babysitting a boy who was four years and nine months old. The boy threw a toy rubber dolphin at her, striking her in the eye. Ms. Nielsen had previously received a cornea transplant, and, tragically, the impact caused her to lose all vision in that eye.
Nielsen then sued the boy for negligence, and the parents for negligently supervising the child. The negligent supervision claim was quickly thrown out, because Nielsen had no evidence that the parents were negligent. (Indeed, I assume that reasonable parents would think that engaging a babysitter was the reasonable precaution to take with a 4-year-old.)
But the claim based on the child's own supposed negligence remained. You might ask, what's the point of suing a 4-year-old, given that parents in Utah are apparently not liable for their children's torts? (That's the general rule in most, perhaps all, states, though some states allow liability up to a relatively small amount in some or all cases.) I assume that the plaintiff expected to recover from the defendant family's homeowner's insurance carrier (a line in the dissent hints at this); presumably the policy covered all negligent acts by all family members, not just by the adults.
In any case, the Utah Supreme Court held that children under the age of 5 cannot be legally adjudged negligent, though past age 5, the matter was to be left for the jury. There turns out to be some disagreement among courts on the matter:
State courts have adopted a variety of approaches when determining whether young children may be held liable for negligence. Some states reject fixed age limits, resolving the issue of a child's capacity to be negligent as a matter of law only where "reasonable minds could not differ on the matter." But "the overwhelming majority of jurisdictions support the idea of some minimum cutoff age." … Courts in these states have adopted different cutoff ages for liability, variously holding that children under seven, six, five, or four may not be negligent as a matter of law.
These cases, the court pointed out, usually involve child plaintiffs. A child is injured and sues the injurer. The injurer responds that the child was also negligent and the injurer should thus either not be liable at all or should have its obligations reduced proportionally to the child's negligence. "These … cases are relevant to this case because the capacity for negligence of a child defendant and a child plaintiff is measured by the same standard."
The Utah court concluded that its precedents support an age 5 cutoff, which is also the line proposed by the Restatement (Third) of Torts, an influential summary of the law prepared by a committee of professors and lawyers:
A number of policy considerations support the restatement rule. Children under the age of five have a limited capacity to appreciate how their actions can cause harm to themselves or others and have an inadequate internal ability to control impulses that may lead to injuries. Absent an adequate ability to foresee consequences or control their behavior, "the possibility is slight that the conduct of a child under five is either deserving of moral criticism or is capable of being deterred by the application of tort rules." Moreover, assessing a young child's capacity for negligence by placing the child on the witness stand to answer questions about her individual understanding of cause and effect, foreseeability, and capacity for impulse control is problematic to say the least. This is especially true where the trial examination would likely occur years after the incident when the child has matured, making it difficult for the child to reclaim her earlier state of mind. Finally, the restatement rule recognizes that there is an age below which it is unseemly to subject a child to the judicial process or to adjudicate a child's liability for negligence.
Of course, categorical rules are, by their nature, imperfect. Children develop at different rates, and some four year olds are undoubtedly more mature than some five year olds. Despite the inherent drawbacks of age-based rulemaking, however, we must engage in this line-drawing process to some extent. Legislatures have done so by setting the age at which individuals can work, drive, marry, vote, serve in the military, smoke, and drink alcohol, as well as establishing the age of consent. Courts also make hard, age-based rules. The Supreme Court has determined that the Constitution prohibits the execution of an "adolescent" who commits murder just days before his eighteenth birthday, but permits the death penalty for an "adult" who commits the same crime just days after turning eighteen. … This court has also created age-based rules as part of the common law—finding that parent's waiver of a minor's prospective claim for negligence is unenforceable, for example. … And although statutes now establish the age of majority, determining the age when individuals assume independent legal rights, such as the capacity to contract, was a common law function. …
In each of these instances the advantages of uniformity, consistency, and efficiency justify a bright-line rule, despite its imperfections. Determining the appropriate age at which each of these rules should be applied on an individualized, case-by-case basis—e.g., conducting a review process to determine when every person is mature enough to vote or consent to sexual relations—would be so inefficient and create such uncertainty as to be unworkable. Rejecting definitive age-based rulemaking also unduly impairs policy making concerning the appropriate ages for certain activities.
We conclude that the instances where it would be appropriate to hold a child under the age of five liable for negligence would be rare enough that the social costs of conducting an individualized inquiry are not justified. Litigants are entitled to some amount of certainty and consistency. And this court has the duty to consider the propriety of subjecting children of tender years to tort liability, or, when they are plaintiffs, denying them recovery for the negligence of others.
We therefore adopt the restatement rule that children under the age of five may not be held liable for negligence. The question of whether a child five or over is capable of negligence is reserved for the fact-finder, unless a court determines that no reasonable jury could disagree on the issue. Such a rule conforms with our precedents and promotes important public policies.
Associate Chief Justice Thomas Lee, however, dissented:
I accept the need for a categorical age cutoff at some point. And I have no doubt that many children under the age of five are incapable of negligence in some activities. But I respectfully dissent from the court's adoption of a categorical cutoff at age five because I disagree with the conclusion that "the instances where it would be appropriate to hold a child under the age of five liable for negligence" are "rare enough that the social costs of conducting an individualized inquiry" into a child defendant's mental capacity for negligence "are not justified."
This is not a question for disposition "as a matter of law" by reference to an aging body of caselaw. It is, at bottom, a question of social science. The relevant field of social science (cognitive psychology), moreover, is one that has seen significant advances in recent years. For that reason it seems perilous to defer too quickly to the armchair assessments of a child's analytical capacity made by judges in decades past.
I would take a fresh look at the age at which a child may properly be charged with negligence. I would do so based on a careful assessment of the state of our current understanding of the field of cognitive psychology. Recent advances in that field undercut the premises of the standard endorsed by the majority. Cognitive psychologists do not view all children aged five or older as fully capable of the kind of thinking necessary to charge them with negligence; nor do they see all children four or younger as categorically incapable of that kind of thinking. Instead they generally agree that children begin to develop cognitive skills like planning and impulse control at about age three, and continue developing those skills as they grow older. And although experts in this field have identified developmental and environmental factors that explain why different children develop at different rates, they also generally agree that most children acquire the ability to engage in planning and impulse control by the age of eight.
With this in mind, I would reject the age five cutoff adopted by this court and others. I would embrace instead a framework that would deem all children under the age of three incapable of negligence and also presume (subject to rebuttal by expert evidence) that those who are aged three to seven lack that capacity.
As noted below, I find nothing in the caselaw in this field that would sustain the cutoff endorsed by the court. The cases adopting a five-year (or seven-year) cutoff for negligence in other jurisdictions are based mostly on armchair assessments of cognitive psychology advanced by judges. To the extent the cases cite any literature from any relevant fields of expertise, moreover, the citations are to outdated science….
To merit attribution of fault, children must be able to foresee the consequences of their actions and avoid them by controlling their impulses. This involves the ability to plan—to "understand and anticipate the causal connection between actions and outcomes." In order to plan, children "must (1) have the ability to understand cause and effect relationships in the physical world; (2) believe that actions produce outcomes in the physical world; and (3) have the ability to exercise self-regulation." Young children vary widely in their capacity for this kind of thinking because they develop cognitive abilities at different rates. [Details omitted. -EV]
With the above in mind, I would adopt a tiered framework for assessing the negligence of children: (a) children under the age of three would be categorically immune from a finding of negligence; (b) children between the ages of three and seven would be subject to a presumption of incapacity for negligence—a presumption that could be rebutted by expert testimony establishing the individual child's capacity for the kind of executive functions (planning and inhibition) necessary to hold them responsible for the actions in question; and (c) children aged eight or older would be held to a standard of a reasonable child of like age, capacity, and experience under similar conditions. This framework seems to me to follow from the premises of cognitive psychology outlined above. …
Few young children are likely to engage in the kind of risky activity that will often result in significant harm to others. And when they do, many would-be claimants are likely to cut them some slack for one reason or another—in recognition, for example, of their minimal capacity for culpability, or their limited resources (absent insurance) for payment of damages. In the rare case when a young child is brought to bar, however, our law should reflect the current understanding of cognitive psychology. The framework that I propose would accomplish that objective….
The majority's decision is also short-sighted in a second respect: It ignores the effect of its decision in cases initiated by child plaintiffs. If young children are mentally or morally incapable of negligence, they will not only be immune from suit as defendants; they will also be deemed incapable of fault [for comparative negligence purposes] when they initiate suit as plaintiffs. That prospect raises the stakes for our decision today. I suspect that more children file suit as plaintiffs than are named in suits as defendants. If so, the predominant effect of today's decision will not be to restrict liability in suits involving children but to expand it. If no young plaintiff will ever have any fault attributed to him in a negligence suit, the defendant in such a suit will be left with full responsibility in every case no matter how minimal his degree of actual relative fault.
Consider a (presumably common) case involving a child pedestrian plaintiff and a somewhat older driver defendant. The driver defendant will be deemed 100 percent at fault in 100 percent of the cases—even if the defendant is barely negligent and the plaintiff is borderline reckless. So a driver who exceeds the speed limit by one mile per-hour will be 100 percent at fault even in a case filed by a plaintiff who recklessly darted into the roadway in full view of an oncoming car.
[Footnote: Swindell, 242 So.2d at 710 (concluding that a nearly five-year-old girl who darted into traffic could not be held contributorily negligent); Benallo, 427 P.2d at 325 (finding that six-year-old who darted across the street could not be held contributorily negligent); Baker v. Alt, 132 N.W.2d 614, 620 (Mich.1965) (holding that a six-year-old who rode his bike against traffic at an excessive speed could not be held contributorily negligent).] So long as the plaintiff is under the age of five, he can never have any fault attributed to him under the standard adopted today….
Very interesting, though it leaves unresolved the burning question: how can we figure out whether it's reasonable for a 4-year-old, or for that matter for a 5-year-old, to throw a rubber dolphin (presumably not very hard) at a babysitter's face?
For an earlier decision, with much less reasoning, in a very similar case, see this 2010 post. (Note that the 2010 post looks to the Restatement (Second) of Torts for a summary of the law; the Restatement (Third) of Torts, released in 2010, takes a different view, presumably one more consistent with recent precedents.)