4-Year-Old Can Be Sued, Judge Rules in Bike Case

[alp227]

Source: The New York Times

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.

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.

Read more: http://www.nytimes.com/2010/10/29/nyregion/29young.html

[DCKit]

1. This is bullshit.

There's a reason they call them "accidents".

It's a horrible thing to have caused, but a trial could really screw these kids up.

[msongs]

5. there is no such thing as "an accident", everything has a cause, in this case parent neglect nt

[pnwmom]

17. Not everything has a purposeful cause. That's why we have the word "accident."

[joeglow3]

27. Every drunk driver has tried to use that argument. nt

[pnwmom]

45. We're talking about normal 4 year olds here, not drunk drivers.

And not even parents.

The issue is whether children too young to understand the concept of death can be held responsible for killing this woman.

Children fall and push each other all the time, with no one getting hurt. How would a 4 year old understand that an 87 year old was so much more fragile, unless he or she had personal experience with one?

[COLGATE4]

71. The negligence alleged is for the Mother failing to properly

supervise the child, not for the child's actions (or failure to act)(

[jberryhill]

85. If it is not established that the child was negligent, then there was no negligent supervision

It's really not that difficult a concept.

If I want to sue you for inadequately supervising someone who was negligent, then I first have to establish the primary negligence of the person you were supervising.

THEN I can get to the issue of your supervision.

[HuckleB]

108. That doesn't seem to be the issue.

If that were the issue, then why would children under the age of four be incapable of negligence?

From the article:

"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.)

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."

[jberryhill]

119. If you want to conduct a full law review of holdings from the courts of NY on that issue, feel free

However, the basic question is balancing at what age is it my responsibility to be careful around kids vs. the kids' responsibility to be careful around me.

However, what drives these things is the context of who has what insurance and when does it apply.

Normally, nobody goes around suing small children, but if it makes a difference to whose insurance ends up paying out, then you are not even seeing a court battle among the individuals involved, but you are seeing a contest between two insurance companies which have subrogated the claims of all of the people involved.

I was a juror a while back in a case like that. Auto accident victim suing car insurance company to pay claims for injury that car insurer denied were the result of an auto accident. Everyone else on the jury wanted to know, "Hey, she works at hospital X, and they have good health insurance, so she should have been covered anyway." It took a whole lot of lip-biting for me not to explain to them that the victim wasn't the interested party in the suit, but her health insurer was the one running the show, in order to get the money from the auto insurer. I was really peeved at the judge for not disqualifying an attorney from being on the jury, because I know there are things which are intentionally not told to juries, and why.

[HuckleB]

126. You have ignored what I posted, and gone off in other directions.

Those other directions are interesting, and would lead to great discussion, but...

While you seem like an intelligent individual. Still, even intelligent people should respond to the actual content of the posts to which they are responding. At least, that seems like a good way to go.

[HuckleB]

107. Exactly. -eom-

[TexasObserver]

65. An accident usually results from someone's negligence.

Any time a pedestrian is run over by someone on a bike or in a car, it's almost always due to the negligence of one or more persons.

The notion that declaring something an accident means there is no actionable negligence is simply wrong.

If you rear end the car in front of you because your two year is crying and you briefly turn your head to reassure him, you're negligent. It's an accident, and it's even understandable, but you're still negligent. You failed to keep a proper look out. You drove irresponsibly, and you were negligent.

This case will be about the negligence of the child and the negligence of her mother. Both can be negligent, and probably were. The age of the child does not alter the nature of her negligence. When she rides a bicycle, she's held to the standard of one riding a bicycle.

There's nothing particularly unusual about this case, only that a four year old being sued is unusual. There's probably a good reason they sued the girl. Might be a predicate for an insurance claim. Might be to help win a case against the parents.

Civil cases are about recompensing the injured party. Too many who overreact to such lawsuits fail to understand that simple fact. Instead, they automatically think in terms of defending the tortfeasor who has caused the injury.

[pnwmom]

93. The four year old, if anything, should be held to the standard

of one riding a bicycle WITH TRAINING WHEELS.

They are incapable of meeting any reasonable person standard, and so shouldn't be held responsible.

"The reasonable person will weigh all of the following factors before acting:
the foreseeable risk of harm his actions create versus the utility of his actions;
the extent of the risk so created;
the likelihood such risk will actually cause harm to others;
any alternatives of lesser risk, and the costs of those alternatives."

http://en.wikipedia.org/wiki/Negligence

A 2 year old on a tricycle could bump an elderly person with balance issues and cause her death. Should the 2 year old be held personally responsible? By your reasoning, yes.

[TexasObserver]

97. The court has overruled your argument.

From the New York Times:

-------------------------------------------
Mr. Tyrie (attorney for the girl) “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.”

The New York Law Journal reported the decision on Thursday.

Mr. Tyrie had also argued that Juliet should not be held liable because her mother was present; Justice Wooten disagreed.

“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 issue is whether a four year old can be judged in that particular jurisdiction for negligence in a civil case. The court has ruled such a case is appropriate under the law of that jurisdiction. Your personal feelings don't enter into the picture at all. Your attempt to use a general legal principle to override a specific court ruling of a court of competent jurisdiction is misguided.

Instead of imagining you're defending a child, face the reality you're defending her insurance company. You do realize that's who is driving the defense, don't you?

A person was badly injured, and that accident had causes. This case will sort out who is responsible. This ruling says the child can be sued, not that the case against her will prevail.

[pnwmom]

98. The court ruled there was no bright line rule for over 4's.

That is NOT the same as saying that 4 year olds ARE capable. It just means that that the precedents applied to children under 4 and the law for under 5's hasn't been established.

I can't imagine any REASONABLE court ruling that a child under 5 should be held civilly responsible for whatever happened that day. But time will tell.

P.S.

How many 4 year olds have insurance companies and carry liability insurance?

[TexasObserver]

100. The court denied the child's attorney's motion to dismiss.

The motion to dismiss argued what you argued. The court found the law of the jurisdiction is not in agreement with you.

Her attorney is an insurance defense lawyer. Parents carry insurance and there is likely a duty under such policy for their insurer to defend them or any family member for a negligence claim. Such defense takes the form of the insurer hiring one of their regular insurance defense attorneys.

http://www.wilsonelser.com/Lawyers/detail.aspx?attorney=560

[pnwmom]

103. The motion to dismiss didn't argue what I argued.

The argument should have gone to the reasoning ability of under 5's -- instead of trying to claim that the law that applied to under 4's already applied to over 4's.

[TexasObserver]

121. I suggest you spend more time gaining knowledge on this topic.

Your opinions are not the law, and they never will be. If people want an opinion that matters, they get it from someone with knowledge.

I've already explained to you that this judge ruled that this jurisdiction allows suits against children over 4 years of age. You don't have like it or understand it. You can FEEL that it's wrong all you want, and that means absolutely nothing except you're not happy about it.

[pnwmom]

128. Have you acquainted yourself with the NY Times correction of this article?

Now it turns out that the woman's cause of death was UNRELATED to the injury she sustained in her fall. And she died three months, not three weeks later.

Yes, the judge allowed this suit to go forward, because there was no "bright line" precedent to direct him. So he relied on his opinion that said, in so many words, a 4 year old should have known better. I don't think you'll find many pediatricians or child psychiatrists or child psychologists -- that is, people who actually know something about children -- who would agree. He made a stupid decision but, since he's the judge, it will stand -- for now.

By the way, these are some of his words.

"He concluded that there was no evidence of Juliet’s “lack of intelligence or maturity” or anything to “indicate that another child of similar age and capacity under the circumstances could not have reasonably appreciated the danger of riding a bicycle into an elderly woman.”

Children under 5, who have been suffering bumps and falls their whole lives, can hardly be expected to understand that an elderly person is much more frail. If they aren't frequently around the elderly, they might not have learned that. But that would be the parent's fault, not the child's.

[Hassin Bin Sober]

130. "So he relied on his opinion that said, in so many words, a 4 year old should have known better"

Wrong. Wrong. Wrong.

He made NO such claim. "In so many words" or not.

He's merely saying the 4 year old is not AUTOMATICALLY immune from a claim.

There is a world of difference!


And it's NOT his "opinion". It's PRECEDENT!

[pnwmom]

131. Here is what he said, according to the article at the OP.

He concluded that there was no evidence of Juliet’s “lack of intelligence or maturity” or anything to “indicate that another child of similar age and capacity under the circumstances could not have reasonably appreciated the danger of riding a bicycle into an elderly woman.”

[Hassin Bin Sober]

134. Saying there is "no evidence of Juliet’s lack of intelligence or maturity” DOES NOT ...

... I repeat DOES NOT mean he thinks the child "should have known better"

It means there was no evidence OR precedence presented by the defendant and/or accepted by the court that would preclude the child from an as yet to be heard negligence claim. It means he refused to expand immunity to an over 4 year old child. It means he refused to go against precedent. It means he refused to be an "activist" judge.

This is denial of a motion to dismiss based on a specific doctrine presented in a civil trial. It is NOT a finding of fact!

[TexasObserver]

133. That's completely immaterial.

Whether the bike accident helped bring on the death of the elderly woman is an ultimate fact issue. A statement in the New York Times is not dispositive and has no effect at all on the matter proceeding in court. It's not even admissible as evidence at trial. Only the jury will decide whether the death of the elderly woman was hastened, brought on, or made more likely by the accident.

You seem to think there's a place you go and get the facts you want that will end this case. It doesn't work like that. At this stage of the case, the material facts are in dispute regarding causation and damages. They are not resolved by someone telling the newspaper their version and the newspaper stating it as if it is fact.

If this case proceeds, both sides will have medical experts who will offer their opinions on causal connection. The jury will hear them and decide who they want to believe. THEN we will have facts that control the case, and not before.

As much as you may consider yourself an expert on when a child should be held negligent under the law, it's not your decision. It's a societal decision which is stated in the laws pertaining to such. This is simply another law you don't like, for reasons that are yours.

[Honeycombe8]

150. It doesn't have to be "purposeful." But every accident has a cause, even negligence...

Negligence is not purposeful.

Except for "acts of God," as stated in ins. policies (hurricanes, tornados, etc.), every so-called accident has a cause. It can be intentional, or it can be as a result of carelessness, negligence, or recklessness. But there is a cause.

If you accidentally run off the road at night, with no one else around, there is still a cause. You were not paying attention, your car was defective in its response or acceleration, the road was malformed, or whatever. But because people don't just run off the road at night, there had to be a cause. The cause did not have to be intentional; it often isn't.

[ProudDad]

42. ...

:wtf:

[Duchess]

6. I'd think killing a person would screw them up more than a lawsuit

It's just a civil suit. It's not like they are facing jail time. I don't know how a trial would really screw them up.

[pnwmom]

55. Suppose the children had assets.

For example, college funds. Should the plaintiffs be able to go after them? Should a 4 year old be held responsible for an accidental death? If so, should a 4 year old be held criminally responsible for a murder? There have been cases of very young children who hurt siblings -- and killed them. We've never sent them to prison for that, though -- on the grounds that they're too young to understand the consequences of their actions.

Aren't these children also too young to have understood the consequences of their actions? Isn't that why children rely on their parents?

Let the plaintiffs sue the parents, if they think they have a case. But leave the kids alone.

[COLGATE4]

72. See my reply 71

[struggle4progress]

13. "ruling .. permitted a lawsuit .. against her, another boy and their parents"

Y'know, it could be entirely foreseeable by a person of ordinary prudence that a couple of kids, racing their bikes down a NYC sidewalk, might strike and injure someone

[pnwmom]

19. Foreseeable by the PARENTS, not by the 4 yr. olds. That's why the lawsuit

should only be against the parents.

[struggle4progress]

24. There are probably legal reasons the suit is styled the way it is

I'd guess most of the facts will be stipulated and the matter will finally be settled without trial

[pnwmom]

25. My guess is they found out that the children have college funds

or other trusts funded by their grandparents.

But these funds shouldn't be raided to pay for the actions or inactions of the parents.

[struggle4progress]

30. Or maybe her survivors thought that, after a lifetime of supporting her husband's

prolabor legal work and doing lots of volunteer and charity work herself, she deserved better than to be knocked down and fatally injured by a couple of kids whose vacant-eyed yuppie parents sort of shrugged and said, Shit happens!

If we're just going to speculate, we can come up with all manner of stories

[pnwmom]

39. Still, how does that justify going after under 5's who don't even

yet grasp the concept of death?

[struggle4progress]

50. I'm not a lawyer; I haven't read any of the filings; and I don't know the actual facts in the case

I can imagine, without difficulty, various legal theories according to which suing the parents and children together might make complete sense, but I know nothing in particular about the laws in New York, and I have no opinion whatsoever regarding what final disposition would be proper in this case

I don't see much point to your noisy outrage. Our legal system is a mechanism for resolving disputes; it evolves according to certain rules. An elderly woman apparently being fatally injured nevertheless strikes me as a more material consideration than the hypothetical harm suffered by a preschooler in having her name appear on some court papers as a result of legal convenience, given the current state of the law as it has evolved to the present day. I expect the professionals involved in this suit can do a better job of sorting out the facts and issues than a group of drive-by internet junkies who really know nothing about the actual facts or the current law governing the use of those facts.

[pnwmom]

52. Are you conflating my posts with someone else's? I said nothing

about harm from merely having a child's name appear in court papers. I think the issue is that the children may have assets that the plaintiffs are trying to go after. And that the children are too young to be held responsible for whatever did or did not happen.

This lawsuit is just one more sign of an overly litigious society. When we allow the suing 4 year olds for negligence, we've really crossed the line.

[treestar]

106. I remember a torts professor saying kids are liable for their torts

It's only civil liability. Of course in general, the deep pocket is not a kid.

A four year old kid can sue, too, if they get injured (with a guardian ad litem - also will be provided here for the kid's defense).

So it's not quite fair that they couldn't be sued too just because (like corporations - they can sue but can also be sued).

However, this is just so a case can go forward. It is likely the judge/jury will find a "reasonable four year old" cannot be negligent - and the parents are the ones who negligently supervised.

It is an unusual case, and hard cases can occur, but normally a four year old on a bike does not kill someone. What an unfortunate and unusual set of circumstances.

[jberryhill]

84. Because they might not be able to go after the parent without the primary claim /nt

[HuckleB]

112. So if the kid on the bike had been three years and 11 months, they couldn't have sued?

From the article:

"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.)

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.'

Something doesn't fit here.

[JVS]

148. +1

[jberryhill]

82. Please read this....

The way that tort law works, if you have supervisory authority over someone who was negligent, you sometimes have to establish the underlying negligence by the primary actor BEFORE you can hold another party responsible on a secondary theory of negligent supervision.

That's just a procedural feature of how the law sometimes shakes out, depending on the state in question.

They might be able to sue the parent unless they establish a claim against the child as a necessary party.

[Duchess]

2. Sounds about right.

They basically killed the lady. I can see letting the lawsuit go forward. I think a civil suit if fine in this case but obviously not a criminal suit.

[FedUpWithIt All]

64. I disagree. They caused what would typically be a nonfatal accident.

It appears from the report that the victim did not survive the surgery which was required due to her advanced age.

[ingac70]

67. Breaking a hip is more often times than not...

a death sentence for those over 80.

[FedUpWithIt All]

76. I have known an elderly woman who broke her hip when another walked very near her

and she lost their balance shifting to the side. Not exactly responsible negligence on the part of the other walker nor is it considered that the other walker "nearly killed" anyone. It is an unfortunate accident which is more unfortunate due to the advanced age of the victim.

[jberryhill]

86. Google "Eggshell plaintiff"

You take your plaintiff as you find him/her.

If your negligence results in injury of another person, it does not matter if that person was unusually susceptible to injury, nor that subsequent events in the chain of legal causation caused further injury.

Example, I push you into the road. Along comes a drunk driver who fails to notice you and runs you over.

Whether the drunk driver could have avoided running you over does not relieve me of my liability for the fact that I pushed you into the road and you were hit by a car which could have avoided you.

That chain can go all the way through to malpractice on the part of the emergency room. You would not have been in that emergency room but for my precedent act of exposing you to the risk of injury.

[FedUpWithIt All]

111. Pushing someone into the road is malicious.

I shared a comparable scenario myself. Walking person walks too closely to an eldery person. Elderly person feels it is a little too close for her comfort and tries to twist some space between the two but loses her balance and breaks hip. Your suggesting that this would be a legitimate lawsuit? There is very little difference here from the event in the OP.

Besides, my comment you responded to was replying to the idea that the kids "killed" the woman. They did not.

[jberryhill]

118. The point is not about the initial action

Once you have committed either a negligent or intentional tort, you can then be held liable for a long chain of consequences resulting from the plaintiff's unusual susceptibility to injury and subsequent actions of others in response to what happened, including medical malpractice.

If you want to discuss moral principles, that's fine. Tort law and moral principles are two different things.

But it's the same reason why people misunderstand completely what actually happened in the "woman spilled coffee at McDonald's and got a huge judgment" myth.

These entire species of "news story" consists of carefully airbrushed circumstances which are then pimped to the press by insurance companies for a reason.

[depakid]

145. But see: Palsgraf!

:D

http://en.wikipedia.org/wiki/Palsgraf_v._Long_Island_Railroad_Co.

http://legal-dictionary.thefreedictionary.com/Palsgraf+v.+Long+Island+Railroad+Company

[msanthrope]

117. I'm reliving the first day of torts--or "Why You Should Not

Harm the Jehovah's That Knock On Your Door."

[stray cat]

3. If two cars are racing and kill a pedestrian it is an accident but it is negligent homicide

And ground for a lawsuit. I suspect it is the parents who will pay for this lawsuit

[Art_from_Ark]

14. It wasn't two cars that were racing

it was two 4-year-olds on little bicycles with training wheels.

[caseymoz]

33. But the parents are being sued separately.

They are suing the kids. Also, a race between two cars on a street is recklessly negligent by definition. In other words, it's really clear-cut.

Problem here comes down to: the defense argued the case wrong.

[Angry Dragon]

4. The older womans' family is probably suing the parents

[Duchess]

7. Makes more sense to sue the kids...

if you are looking to get money out of it. They have a life time worth of paycheck to garnish.

[Hassin Bin Sober]

8. How old does one have to be to file BK - a frightening thought.

[unblock]

12. i don't think personal injury liabilities are normally discharge in a bankruptcy

but it does raise an interesting question, does the 4 year old actually have any wealth to go after? or is this just a transparent way of getting at the parents' wealth?

the parents probably are free to hide all their wealth in advance of an adverse court decision.
it would be improper to hide and of the 4 year old's wealth, but the parents? off the hook, probably.

[Hassin Bin Sober]

20. I thought only drunk driving injury claims were exempt from BK. (besides others like IRS etc.)

Hiding wealth is hard to do once you get sued. Or even prior to filing.

The parents are definitely the people on the hook. Including the kids is more than likely procedural. I guess I need to read the article. :)

[TexasObserver]

94. Fraud and intentional tort judgments may not be dischargeable in bankruptcy.

Upon motion of the creditor, the court may rule such obligations non dischargeable.

[Hassin Bin Sober]

102. So a negligence tort could be discharged?

My understanding is intentional torts would be more like criminal acts (assault etc.).

Just curious. I know these kids aren't going to be in a BK court. The plaintiff estate is after the parent's insurance for what is probably a huge stack of medical bills. I can only imagine what the bills look like for a high-risk hip surgery and intensive care stay.

The bills may be enough to wipe out the elderly lady's estate which I guess, according to some DUers, the family should just eat it under the "so sad, too bad" legal doctrine established here at DU.

[TexasObserver]

125. If you really want to know, read these two public sources.

From the US Bankruptcy Code

Sec. 523. - Exceptions to discharge
(a) A discharge under section 727, 1141, 1228 (a), 1228 (b), or 1328 (b) of this title does not discharge an individual debtor from any debt—

(1) for a tax or a customs duty—
(A) of the kind and for the periods specified in section 507 (a)(2) or 507 (a)(8) of this title, whether or not a claim for such tax was filed or allowed;
(B) with respect to which a return, if required—
(i) was not filed; or
(ii) was filed after the date on which such return was last due, under applicable law or under any extension, and after two years before the date of the filing of the petition; or
(C) with respect to which the debtor made a fraudulent return or willfully attempted in any manner to evade or defeat such tax;

(2) for money, property, services, or an extension, renewal, or refinancing of credit, to the extent obtained by—
(A) false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor’s or an insider’s financial condition;
(B) use of a statement in writing—
(i) that is materially false;
(ii) respecting the debtor’s or an insider’s financial condition;
(iii) on which the creditor to whom the debtor is liable for such money, property, services, or credit reasonably relied; and
(iv) that the debtor caused to be made or published with intent to deceive; or
(C) for purposes of subparagraph (A) of this paragraph, consumer debts owed to a single creditor and aggregating more than $1,000 for “luxury goods or services” incurred by an individual debtor on or within 60 days before the order for relief under this title, or cash advances aggregating more than $1,000 that are extensions of consumer credit under an open end credit plan obtained by an individual debtor on or within 60 days before the order for relief under this title, are presumed to be nondischargeable; “luxury goods or services” do not include goods or services reasonably acquired for the support or maintenance of the debtor or a dependent of the debtor; an extension of consumer credit under an open end credit plan is to be defined for purposes of this subparagraph as it is defined in the Consumer Credit Protection Act;

(3) neither listed nor scheduled under section 521 (1) of this title, with the name, if known to the debtor, of the creditor to whom such debt is owed, in time to permit—
(A) if such debt is not of a kind specified in paragraph (2), (4), or (6) of this subsection, timely filing of a proof of claim, unless such creditor had notice or actual knowledge of the case in time for such timely filing; or
(B) if such debt is of a kind specified in paragraph (2), (4), or (6) of this subsection, timely filing of a proof of claim and timely request for a determination of dischargeability of such debt under one of such paragraphs, unless such creditor had notice or actual knowledge of the case in time for such timely filing and request;

(4) for fraud or defalcation while acting in a fiduciary capacity, embezzlement, or larceny;

(5) to a spouse, former spouse, or child of the debtor, for alimony to, maintenance for, or support of such spouse or child, in connection with a separation agreement, divorce decree or other order of a court of record, determination made in accordance with State or territorial law by a governmental unit, or property settlement agreement, but not to the extent that—
(A) such debt is assigned to another entity, voluntarily, by operation of law, or otherwise (other than debts assigned pursuant to section 408(a)(3) of the Social Security Act, or any such debt which has been assigned to the Federal Government or to a State or any political subdivision of such State); or
(B) such debt includes a liability designated as alimony, maintenance, or support, unless such liability is actually in the nature of alimony, maintenance, or support;

(6) for willful and malicious injury by the debtor to another entity or to the property of another entity;

(7) to the extent such debt is for a fine, penalty, or forfeiture payable to and for the benefit of a governmental unit, and is not compensation for actual pecuniary loss, other than a tax penalty—
(A) relating to a tax of a kind not specified in paragraph (1) of this subsection; or
(B) imposed with respect to a transaction or event that occurred before three years before the date of the filing of the petition;

(8) for an educational benefit overpayment or loan made, insured or guaranteed by a governmental unit, or made under any program funded in whole or in part by a governmental unit or nonprofit institution, or for an obligation to repay funds received as an educational benefit, scholarship or stipend, unless excepting such debt from discharge under this paragraph will impose an undue hardship on the debtor and the debtor’s dependents;

(9) for death or personal injury caused by the debtor’s operation of a motor vehicle if such operation was unlawful because the debtor was intoxicated from using alcohol, a drug, or another substance;

(10) that was or could have been listed or scheduled by the debtor in a prior case concerning the debtor under this title or under the Bankruptcy Act in which the debtor waived discharge, or was denied a discharge under section 727 (a)(2), (3), (4), (5), (6), or (7) of this title, or under section 14c(1), (2), (3), (4), (6), or (7) of such Act;

(11) provided in any final judgment, unreviewable order, or consent order or decree entered in any court of the United States or of any State, issued by a Federal depository institutions regulatory agency, or contained in any settlement agreement entered into by the debtor, arising from any act of fraud or defalcation while acting in a fiduciary capacity committed with respect to any depository institution or insured credit union;

(12) for malicious or reckless failure to fulfill any commitment by the debtor to a Federal depository institutions regulatory agency to maintain the capital of an insured depository institution, except that this paragraph shall not extend any such commitment which would otherwise be terminated due to any act of such agency;

(13) for any payment of an order of restitution issued under title 18, United States Code;

(14) incurred to pay a tax to the United States that would be nondischargeable pursuant to paragraph (1);

(15) not of the kind described in paragraph (5) that is incurred by the debtor in the course of a divorce or separation or in connection with a separation agreement, divorce decree or other order of a court of record, a determination made in accordance with State or territorial law by a governmental unit unless—
(A) the debtor does not have the ability to pay such debt from income or property of the debtor not reasonably necessary to be expended for the maintenance or support of the debtor or a dependent of the debtor and, if the debtor is engaged in a business, for the payment of expenditures necessary for the continuation, preservation, and operation of such business; or
(B) discharging such debt would result in a benefit to the debtor that outweighs the detrimental consequences to a spouse, former spouse, or child of the debtor;

(16) for a fee or assessment that becomes due and payable after the order for relief to a membership association with respect to the debtor’s interest in a dwelling unit that has condominium ownership or in a share of a cooperative housing corporation, but only if such fee or assessment is payable for a period during which—
(A) the debtor physically occupied a dwelling unit in the condominium or cooperative project; or
(B) the debtor rented the dwelling unit to a tenant and received payments from the tenant for such period,
but nothing in this paragraph shall except from discharge the debt of a debtor for a membership association fee or assessment for a period arising before entry of the order for relief in a pending or subsequent bankruptcy case;

(17) for a fee imposed by a court for the filing of a case, motion, complaint, or appeal, or for other costs and expenses assessed with respect to such filing, regardless of an assertion of poverty by the debtor under section 1915 (b) or (f) of title 28, or the debtor’s status as a prisoner, as defined in section 1915 (h) of title 28;

(18) owed under State law to a State or municipality that is—
(A) in the nature of support, and
(B) enforceable under part D of title IV of the Social Security Act (42 U.S.C. 601 et seq.); or

(19) that—
(A) is for—
(i) the violation of any of the Federal securities laws (as that term is defined in section 3(a)(47) of the Securities Exchange Act of 1934), any of the State securities laws, or any regulation or order issued under such Federal or State securities laws; or
(ii) common law fraud, deceit, or manipulation in connection with the purchase or sale of any security; and
(B) results from—
(i) any judgment, order, consent order, or decree entered in any Federal or State judicial or administrative proceeding;
(ii) any settlement agreement entered into by the debtor; or
(iii) any court or administrative order for any damages, fine, penalty, citation, restitutionary payment, disgorgement payment, attorney fee, cost, or other payment owed by the debtor.
(b) Notwithstanding subsection (a) of this section, a debt that was excepted from discharge under subsection (a)(1), (a)(3), or (a)(8) of this section, under section 17a(1), 17a(3), or 17a(5) of the Bankruptcy Act, under section 439A <1> of the Higher Education Act of 1965, or under section 733(g) <1> of the Public Health Service Act in a prior case concerning the debtor under this title, or under the Bankruptcy Act, is dischargeable in a case under this title unless, by the terms of subsection (a) of this section, such debt is not dischargeable in the case under this title.
(c)
(1) Except as provided in subsection (a)(3)(B) of this section, the debtor shall be discharged from a debt of a kind specified in paragraph (2), (4), (6), or (15) of subsection (a) of this section, unless, on request of the creditor to whom such debt is owed, and after notice and a hearing, the court determines such debt to be excepted from discharge under paragraph (2), (4), (6), or (15), as the case may be, of subsection (a) of this section.
(2) Paragraph (1) shall not apply in the case of a Federal depository institutions regulatory agency seeking, in its capacity as conservator, receiver, or liquidating agent for an insured depository institution, to recover a debt described in subsection (a)(2), (a)(4), (a)(6), or (a)(11) owed to such institution by an institution-affiliated party unless the receiver, conservator, or liquidating agent was appointed in time to reasonably comply, or for a Federal depository institutions regulatory agency acting in its corporate capacity as a successor to such receiver, conservator, or liquidating agent to reasonably comply, with subsection (a)(3)(B) as a creditor of such institution-affiliated party with respect to such debt.
(d) If a creditor requests a determination of dischargeability of a consumer debt under subsection (a)(2) of this section, and such debt is discharged, the court shall grant judgment in favor of the debtor for the costs of, and a reasonable attorney’s fee for, the proceeding if the court finds that the position of the creditor was not substantially justified, except that the court shall not award such costs and fees if special circumstances would make the award unjust.
(e) Any institution-affiliated party of a <2> insured depository institution shall be considered to be acting in a fiduciary capacity with respect to the purposes of subsection (a)(4) or (11).


From the U.S. Supreme Court in Kawaauhau v. Geiger

OCTOBER TERM, 1997

Syllabus

KAWAAUHAU ET VIR v. GEIGER

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

No. 97-115. Argued January 21, 1998-Decided March 3,1998

When petitioner Kawaauhau sought treatment for her injured foot, respondent Dr. Geiger examined and hospitalized her to attend to the risk of infection. Although Geiger knew that intravenous penicillin would have been more effective, he prescribed oral penicillin, explaining in his testimony that he understood his patient wished to minimize treatment costs. Geiger then departed on a business trip, leaving Kawaauhau in the care of other physicians, who decided she should be transferred to an infectious disease specialist. When Geiger returned, he canceled the transfer and discontinued all antibiotics because he believed the infection had subsided. Kawaauhau's condition deteriorated, requiring amputation of her leg below the knee. Mter trial in the malpractice suit brought by Kawaauhau and her husband, the jury found Geiger liable and awarded the Kawaauhaus approximately $355,000 in damages. Geiger, who carried no malpractice insurance, moved to Missouri, where his wages were garnished by the Kawaauhaus. Geiger then petitioned for bankruptcy. The Kawaauhaus requested the Bankruptcy Court to hold the malpractice judgment nondischargeable under 11 U. S. C. § 523(a)(6), which provides that a "discharge ... does not discharge an individual debtor from any debt ... for willful and malicious injury ... to another." Concluding that Geiger's treatment fell far below the appropriate standard of care and therefore ranked as "willful and malicious," that court held the debt nondischargeable. The District Court affirmed, but the Eighth Circuit reversed, holding that § 523(a)(6)'s exemption from discharge is confined to debts for an intentional tort, so that a debt for malpractice remains dischargeable because it is based on negligent or reckless conduct.

Held: Because a debt arising from a medical malpractice judgment attributable to negligent or reckless conduct does not fall within the § 523(a)(6) exception, the debt is dischargeable in bankruptcy. Section 523(a)(6)'s words strongly support the Eighth Circuit's reading that only acts done with the actual intent to cause injury fall within the exception's scope. The section's word "willful" modifies the word "injury," indicating that nondischargeability takes a deliberate or intentional injury, not merely, as the Kawaauhaus urge, a deliberate or intentional act that leads to injury. Had Congress meant to exempt debts


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Syllabus

resulting from unintentionally inflicted injuries, it might have described instead "willful acts that cause injury" or selected an additional word or words, i. e., "reckless" or "negligent," to modify "injury." Moreover, § 523(a)(6)'s formulation triggers in the lawyer's mind the category "intentional torts," which generally require that the actor intend the consequences of an act, not simply the act itself. The Kawaauhaus' more encompassing interpretation could place within the excepted category a wide range of situations in which an act is intentional, but injury is unintended, i. e., neither desired nor in fact anticipated by the debtor. A construction so broad would be incompatible with the well-known guide that exceptions to discharge should be confined to those plainly expressed, and would render superfluous the exemptions from discharge set forth in §§ 523(a)(9) and 523(a)(12). The Kawaauhaus rely on Tinker v. Colwell, 193 U. S. 473, which held that a damages award for the tort of "criminal conversation" survived bankruptcy under the 1898 Bankruptcy Act's exception from discharge for judgments in civil actions for "'willful and malicious injuries.''' The Tinker opinion repeatedly recognized that at common law the tort in question ranked as trespass vi et armis, akin to a master's "'action of trespass and assault ... for the battery of his servant.''' Tinker placed criminal conversation solidly within the traditional intentional tort category, and this Court so confines its holding; that decision provides no warrant for departure from the current statutory instruction that, to be nondischargeable, the judgment debt must be "for willful and malicious injury." See, e. g., Davis v. Aetna Acceptance Co., 293 U. S. 328, 332. The Kawaauhaus' argument that, as a policy matter, malpractice judgments should be excepted from discharge, at least when the debtor acted recklessly or carried no malpractice insurance, should be addressed to Congress. Debts arising from reckless or negligently inflicted injuries do not fall within § 523(a)(6)'s compass. Pp. 60-64.

113 F.3d 848, affirmed.

GINSBURG, J., delivered the opinion for a unanimous Court.

Norman W Pressman argued the cause for petitioners.

With him on the briefs were Teresa A. Generous, Ronald

Laura K. Grandy argued the cause and filed a brief for respondent. *

*Gary Klein filed a brief for the National Association of Consumer Bankruptcy Attorneys as amicus curiae urging affirmance.


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59

JUSTICE GINSBURG delivered the opinion of the Court. Section 523(a)(6) of the Bankruptcy Code provides that a debt "for willful and malicious injury by the debtor to another" is not dischargeable. 11 U. S. C. § 523(a)(6). The question before us is whether a debt arising from a medical malpractice judgment, attributable to negligent or reckless conduct, falls within this statutory exception. We hold that it does not and that the debt is dischargeable.

I

In January 1983, petitioner Margaret Kawaauhau sought treatment from respondent Dr. Paul Geiger for a foot injury. Geiger examined Kawaauhau and admitted her to the hospital to attend to the risk of infection resulting from the injury. Although Geiger knew that intravenous penicillin would have been more effective, he prescribed oral penicillin, explaining in his testimony that he understood his patient wished to minimize the cost of her treatment.

Geiger then departed on a business trip, leaving Kawaauhau in the care of other physicians, who decided she should be transferred to an infectious disease specialist. When Geiger returned, he canceled the transfer and discontinued all antibiotics because he believed the infection had subsided. Kawaauhau's condition deteriorated over the next few days, requiring the amputation of her right leg below the knee.

Kawaauhau, joined by her husband Solomon, sued Geiger for malpractice. After a trial, the jury found Geiger liable and awarded the Kawaauhaus approximately $355,000 in damages.1 Geiger, who carried no malpractice insurance,2

1 The jury awarded Margaret Kawaauhau $203,040 in special damages and $99,000 in general damages. In re Geiger, 172 B. R. 916, 919 (Bkrtcy. Ct. ED Mo. 1994). In addition, the jury awarded Solomon Kawaauhau $18,000 in general damages for loss of consortium and $35,000 for emotional distress. Ibid.

2 Although the record is not clear on this point, it appears that Dr. Geiger was not required by state law to carry medical malpractice insurance. See Tr. of Oral Arg. 19.


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60

moved to Missouri, where his wages were garnished by the Kawaauhaus. Geiger then petitioned for bankruptcy. The Kawaauhaus requested the Bankruptcy Court to hold the malpractice judgment nondischargeable on the ground that it was a debt "for willful and malicious injury" excepted from discharge by 11 U. S. C. § 523(a)(6). The Bankruptcy Court concluded that Geiger's treatment fell far below the appropriate standard of care and therefore ranked as "willful and malicious." Accordingly, the Bankruptcy Court held the debt nondischargeable. In re Geiger, 172 B. R. 916, 922-923 (Bkrtcy. Ct. ED Mo. 1994). In an unpublished order, the District Court affirmed. App. to Pet. for Cert. A-18 to A-22.

A three-judge panel of the Court of Appeals for the Eighth Circuit reversed, 93 F.3d 443 (1996), and a divided en banc court adhered to the panel's position, 113 F.3d 848 (1997) (en banc). Section 523(a)(6)'s exemption from discharge, the en banc court held, is confined to debts "based on what the law has for generations called an intentional tort." Id., at 852. On this view, a debt for malpractice, because it is based on conduct that is negligent or reckless, rather than intentional, remains dischargeable.

The Eighth Circuit acknowledged that its interpretation of § 523(a)(6) diverged from previous holdings of the Sixth and Tenth Circuits. See id., at 853 (citing Perkins v. Scharffe, 817 F.2d 392, 394 (CA6), cert. denied, 484 U. S. 853 (1987), and In re Franklin, 726 F.2d 606, 610 (CAlO 1984)). We granted certiorari to resolve this conflict, 521 U. S. 1153 (1997), and now affirm the Eighth Circuit's judgment.

II

Section 523(a)(6) of the Bankruptcy Code provides:

"(a) A discharge under section 727, 1141, 1228(a), 1228(b), or 1328(b) of this title does not discharge an individual debtor from any debt-


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"(6) for willful and malicious injury by the debtor to

another entity or to the property of another entity."

The Kawaauhaus urge that the malpractice award fits within this exception because Dr. Geiger intentionally rendered inadequate medical care to Margaret Kawaauhau that necessarily led to her injury. According to the Kawaauhaus, Geiger deliberately chose less effective treatment because he wanted to cut costs, all the while knowing that he was providing substandard care. Such conduct, the Kawaauhaus assert, meets the "willful and malicious" specification of § 523(a)(6).

We confront this pivotal question concerning the scope of the "willful and malicious injury" exception: Does § 523(a)(6)'s compass cover acts, done intentionally,3 that cause injury (as the Kawaauhaus urge), or only acts done with the actual intent to cause injury (as the Eighth Circuit ruled)? The words of the statute strongly support the Eighth Circuit's reading.

The word "willful" in (a)(6) modifies the word "injury," indicating that nondischargeability takes a deliberate or intentional injury, not merely a deliberate or intentional act that leads to injury. Had Congress meant to exempt debts resulting from unintentionally inflicted injuries, it might have described instead "willful acts that cause injury." Or, Congress might have selected an additional word or words, i. e., "reckless" or "negligent," to modify "injury." Moreover, as the Eighth Circuit observed, the (a)(6) formulation triggers in the lawyer's mind the category "intentional torts," as distinguished from negligent or reckless torts. Intentional torts generally require that the actor intend "the conse-

3 The word "willful" is defined in Black's Law Dictionary as "voluntary" or "intentional." Black's Law Dictionary 1434 (5th ed. 1979). Consistently, legislative reports note that the word "willful" in § 523(a)(6) means "deliberate or intentional." See S. Rep. No. 95-989, p. 79 (1978); H. R. Rep. No. 95-595, p. 365 (1977).


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62

quences of an act," not simply "the act itself." Restatement (Second) of Torts § 8A, Comment a, p. 15 (1964) (emphasis added).

The Kawaauhaus' more encompassing interpretation could place within the excepted category a wide range of situations in which an act is intentional, but injury is unintended, i. e., neither desired nor in fact anticipated by the debtor. Every traffic accident stemming from an initial intentional act-for example, intentionally rotating the wheel of an automobile to make a left-hand turn without first checking oncoming traffic-could fit the description. See 113 F. 3d, at 852. A "knowing breach of contract" could also qualify. See ibid. A construction so broad would be incompatible with the "well-known" guide that exceptions to discharge "should be confined to those plainly expressed." Gleason v. Thaw, 236 U. S. 558, 562 (1915).

Furthermore, "we are hesitant to adopt an interpretation of a congressional enactment which renders superfluous another portion of that same law." Mackey v. Lanier Collection Agency & Service, Inc., 486 U. S. 825, 837 (1988). Reading § 523(a)(6) as the Kawaauhaus urge would obviate the need for § 523(a)(9), which specifically exempts debts "for death or personal injury caused by the debtor's operation of a motor vehicle if such operation was unlawful because the debtor was intoxicated from using alcohol, a drug, or another substance." 11 U. S. C. § 523(a)(9); see also § 523(a)(12) (exempting debts for "malicious or reckless failure" to fulfill certain commitments owed to a federal depository institutions regulatory agency).4

The Kawaauhaus heavily rely on Tinker v. Colwell, 193 U. S. 473 (1904), which presented this question: Does an award of damages for "criminal conversation" survive bankruptcy under the 1898 Bankruptcy Act's exception from

4 Sections 523(a)(9) and (12) were added to the Bankruptcy Code in 1984 and 1990 respectively. See Pub. L. 98-353, 98 Stat. 364 (1984), and Pub. L. 101-647, 104 Stat. 4865 (1990).


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discharge for judgments in civil actions for" 'willful and malicious injuries to the person or property of another'''? Id., at 480. The Tinker Court held such an award a nondischargeable debt. The Kawaauhaus feature certain statements in the Tinker opinion, in particular: " act is willful ... in the sense that it is intentional and voluntary" even if performed "without any particular malice," id., at 485; an act that "necessarily causes injury and is done intentionally, may be said to be done willfully and maliciously, so as to come within the exception," id., at 487. See also id., at 486 (the statute exempts from discharge liability for "'a wrongful act, done intentionally, without just cause or excuse''') (quoting from definition of malice in Bromage v. Prosser, 4 Barn. & Cress. 247, 107 Eng. Rep. 1051 (K. B. 1825)).

The exposition in the Tinker opinion is less than crystalline. Counterbalancing the portions the Kawaauhaus emphasize, the Tinker Court repeatedly observed that the tort in question qualified in the common law as trespassory. Indeed, it ranked as "trespass vi et armis." 193 U. S., at 482, 483. Criminal conversation, the Court noted, was an action akin to a master's "action of trespass and assault ... for the battery of his servant," id., at 482. Tinker thus placed criminal conversation solidly within the traditional intentional tort category, and we so confine its holding. That decision, we clarify, provides no warrant for departure from the current statutory instruction that, to be nondischargeable, the judgment debt must be "for willful and malicious injury."

Subsequent decisions of this Court are in accord with our construction. In McIntyre v. Kavanaugh, 242 U. S. 138 (1916), a broker "deprive another of his property forever by deliberately disposing of it without semblance of authority." Id., at 141. The Court held that this act constituted an intentional injury to property of another, bringing it within the discharge exception. But in Davis v. Aetna Ac-


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64

ceptance Co., 293 U. S. 328 (1934), the Court explained that not every tort judgment for conversion is exempt from discharge. Negligent or reckless acts, the Court held, do not suffice to establish that a resulting injury is "wilful and malicious." See id., at 332.

Finally, the Kawaauhaus maintain that, as a policy matter, malpractice judgments should be excepted from discharge, at least when the debtor acted recklessly or carried no malpractice insurance. Congress, of course, may so decide. But unless and until Congress makes such a decision, we must follow the current direction § 523(a)(6) provides.

***

We hold that debts arising from recklessly or negligently inflicted injuries do not fall within the compass of § 523(a)(6). For the reasons stated, the judgment of the Court of Appeals for the Eighth Circuit is

Affirmed.
http://supreme.justia.com/us/523/57/case.html

[Hassin Bin Sober]

135. Oh fer cryin' out loud I just wanted some free legal opinion.

Just kiddin' :)

I did read it and do appreciate it and kinda get it and it kinda confirms my thoughts. I read through a lot of this stuff for shits and giggles when I held a friend's hand through her BK filing/experience with a BK attorney. I remember reading the items which couldn't be discharged - DUI, taxes and school loans stood out.


Anyway, I appreciate reading yours and Jberryhill's posts on this kind of stuff. Like the kid in Caddyshack, I've always had an interest in the law.


I sure could have used you on my moving violation post/rant I made a couple weeks ago.

I posted photos of the old fashioned "no left turn" signs with burned out bulbs, photos of the non-illuminated retro-reflective "no left" sign that was 100% obscured by a street banner, and relevant state and local statutes why signs either have to be retro-reflective or illuminated to be satisfactory regulatory signs (my citation was during nighttime driving - no left turn posted)......

And most of the replies I received were "stop whining and pay your ticket" or "I can see the signs YOU WILL LOSE!!" Totally disregarding the research I did and the fact the city is writing tickets by the hundreds (my best guess) based on obscure and/or broken signage.

I wasn't even looking for legal advice as I'm pretty sure I had it all worked out. As far as I can tell, a pretty solid case for dismissal. It was a more of a rant on a city writing tickets on illegal signage and smart-assed cops asking me why I didn't see the three signs. The thread devolved in to a "stop whining" and pay based on the "well I can see the sign, why can't you" DU legal doctrine. And of course the expert drivers who would NEVER fail to see a sign due to its lack of legally required illumination during nigh-time conditions because, on DU, everyone is an expert driver with cat like reflexes and eagle eyes.

[TexasObserver]

143. I wouldn't have looked it up unless you asked.

Hell, I haven't looked up anything in the bankruptcy code in over ten years.

I'm not a bankruptcy attorney, although I've tried adversary proceedings in bankruptcy court, but only in very large corporate bankruptcies. I would never go into bankruptcy court without a bankruptcy lawyer to second chair me. It's dangerous for anyone not very familiar with the Bankruptcy Code to litigate inside bankruptcy proceedings.

Here's a tidbit from bankruptcy practitioners:

What can a goose do, that a swan can do, that a duck can't do, but that a bankruptcy judge can make a bankruptcy debtor's attorney do?

Answer: Stick his bill up his ass!

In those huge bankruptcies, the attorneys for the debtor rack up huge fees, but they have to submit their bills to the court for approval, and the judge can and does refuse to allow payment of some items.

[depakid]

16. She might be covered by a renter's policy

[TexasObserver]

74. This looks like a ploy to up the ante to force an insurer to settle.

The family of the deceased wants policy limits, and by suing the kid, they're putting more pressure on the kid's parents to demand the insurance company settle within policy limits.

It looks and feels like a tactic to force settlement, rather than one calculated to up the total judgment that might be obtained. The parents are going to get hit for liability. Without seeing their insurance policy, we can't know what the back story is on this filing against the kid, but we can be certain it is better for the deceased's family to keep the kid as a party defendant.

This is the kind of ruling that often leads to a settlement, because the parents of the child will now be leaning on their own insurer to settle the case, to stop it now.

[customerserviceguy]

29. That's just crazy

For starters, if anything like you said were true, the parents would just have the kids' estates file bankruptcy, and it would be off their credit reports by the time they finished high school.

This is just some legalistic BS, the kids are only mentioned simply because it needs to be done under some crazy obscure court rule for filing. It's the parents they're after.

[pnwmom]

44. How do you know the children don't have college funds or other assets? n/t

[TexasObserver]

73. I can assure you no one is thinking about garnishing the kid's future pay check.

These actions are to force payment of some amount in settlement now.

This may be one way to put more pressure on the family's insurance company to settle. You can be assured that the main reason this tactic is being used is to get a settlement NOW. The last thing the attorney for the deceased's family wants is some chance to garnish the child's future pay checks.

This action might force the insurance company to hire separate attorneys for the parents and the child, doubling their litigation costs while doubling their exposure to paying.

This is all probably a ploy designed to get the family's insurer to pay policy limits.

[jberryhill]

89. We Have A Winner!

No more calls please.

And who, do you think, likes to make sure that these cases get widespread attention as "legal system out of control"?

You might as well complete the loop.

[TexasObserver]

92. Indeed, there is always a method to what may appear madness.

The insurance and civil defense industry have so thoroughly gamed the public through the past three decades of propaganda that we find advocates for the insurance company who don't even know they're defending the insurance company.

If there wasn't an insurance policy, there wouldn't be the pleading or the hearing on the appropriateness of suing the child. This case reeks of insurance company, and that's likely who is getting the case publicity and framing perception of this ruling.

[depakid]

136. "This case reeks of an insurance company"

Indeed it does, but given the location, there may well be straight up deep pockets involved.

Just sayin'

:-)

[TexasObserver]

141. Yes, it could be old fashioned deep pockets, too.

But I looked up the lawyer for the child, and he looks like a long time civil defense trial lawyer for insurance interests. He's definitely a guy on the big business/insurance defense side of the docket.

In most US jurisdictions, the duty of an insurer to defend an insured sued is much broader than the duty to cover the loss. The insurer can and often does offer a defense to the insurer, while issuing a Reservation of Rights letter, wherein the insurer says "we will provide your legal defense, but we reserve the right to contest coverage." That why the insurer can provide the insured with a defense, but still maintain there is no coverage for the loss, in the event the insured loses their case.

I think this recent ruling makes settlement in the near term much more likely. It's only a matter of time before we find out State Farm, or Allstate, or one of the other giants is providing a defense pursuant to a homeowner's or renter's policy. Then all the hand wringing over the child will go away.

[unkachuck]

9. this is nuts....

....a four year old child at play being sued for negligence is no more ridiculous than a four year old child voting or a four year old child entering into a contract or a four year old child having sex....

....what a litigious society we've become....

[Jackpine Radical]

11. I agree. To place expectations for foresight and judgment

on a 4 year-old, with a 4 year-old's very undeveloped brain and mind, is nuts.

The first thing that flashed into my mind was the medieval custom of trying and publicly executing livestock that had killed a person.

[dflprincess]

23. That's why they have parents to supply foresight and judgement

and perhaps realize that racing their little bicycles down East 52nd Street where there are other pedestrians might not be the brightest thing to do. Even if the parents weren't concerned about other people you would think there'd be some concern about the little angels shooting off the curb and into traffic (and if they had done that and been hit, some poor driver would be the one being sued instead).

I imagine it must be some oddity of the law that the parents are not the only ones being sued.

[pnwmom]

26. I bet they are after the children's college funds or other trusts

they might happen to have.

There isn't any oddity in NY law that would require a 4 year old to be included in a lawsuit.

[Hassin Bin Sober]

57. How do you know there isn't some oddity in NY law requiring the actual actor to be included?

Got any proof?

(I won't bother to ask you about the college fund nonsense)

[HuckleB]

116. If such an oddity existed, then, apparently, parents of kids under four are off the hook.

The precedent cited in the story indicates that kids under four can't be sued. I don't think that it's very likely that the parents of those kids are off the hook, thus I don't think it's very likely that kids had to be sued in order to sue these parents.

[Hassin Bin Sober]

122. It's quite possible such an oddity DOES exist.

It's quite possible children under 4 ARE immune and, as a consequence, so are their parents.


It's also quite possible the children are immune and the parents ARE STILL liable .... but ... the parents insurance policy is un-touchable because the children are immune. In other words, the parent's/landlord's policy likely covers negligent children and NOT negligent adults. Therefore, absent finding of negligence of the child, the parent's/landlord's policy is protected and the "deep pockets" removed from the scenario. That's not to say a judgment can't be slapped on the parents - it means collection may be an issue and not worth pursuing.


It's also quite possible, and this is my somewhat educated guess how this case is progressing, the children are required to be included in this action because that WILL allow the parent's/landlord's insurance policy to be dragged in to the mix. This is why the insurance company's atty. is trying to toss the case on the theory the children are immune.

The two attorneys, jberryhill and TexasObserver, in this thread seem to agree with the insurance argument. Neither one seem to be NY attys. so they are speaking in generalities. As am I. I'm not an attorney.

[HuckleB]

124. I wouldn't bet on that oddity.

[Jackpine Radical]

77. Yes, of course the parents/caregivers have responsibility,

and they obviously weren't executing it very well.

The spectre lying behind my comment is the trend in America to throw younger & younger kids into the adult crim justice system, to put kids on Sex Offender Registries, etc. We're sacrificing our kids on some bizarre kind of Puritan altar.

[Disorientedx3]

35. test of reasonable and prudent

The child would be held to, and have to fail, the standard of insight and behavior of any other reasonable and prudent 4 year old child to be found negligent. Not too many reasonable or prudent 4 year olds out there...

[pnwmom]

40. Four year olds don't even understand death. n/t

[Jim Lane]

110. It's disheartening that so many DUers use the themes of the RW attack on the civil justice system

For years, the right-wingers have been diligently spreading this idea of a "litigious society" that's overrun by "frivolous lawsuits" that win huge amounts of money. The scale of their success is seen by the number of DUers who are willing to join the chorus.

There was a time when progressives supported the jury system. All that happened here is that the judge ruled that the issue of the child's negligence should be decided by a jury.

Of course, under New York law, the child's age is taken into account. As Disorientedx3 said (in #35), the child defendants will be held to a standard of care that is appropriate to their age. In some circumstances where an adult might be held liable, any child would not be held liable. In other circumstances, it could be that a nine-year-old is liable but a four-year-old is not. It depends on the facts of each case, which is why we have juries.

If you say that a four-year-old should never be held liable, I ask: What about a five-year-old? a six-year-old? and so on. Are you calling for a bright-line rule stating that everyone who's too young to vote is also too young to be held negligent, no matter what the facts of the case? If that's not your position, where would you draw the line?

The judge ruled that, under New York law, a bright line is drawn at the child's fourth birthday. Before that, there's no negligence, regardless of the circumstances. After that, it's up to the jury, which will be instructed to bear in mind the child's age in reaching its decision.

I admit to a bias here. I make my living by representing people who are injured through others' negligence. Still, I would have hoped that even DUers who are not members of the plaintiffs' bar would have shown some appreciation for the nuances of the situation.

[uppityperson]

10. What an awful thing to have happen. Court ruling says "under 4" can't be negligent, kid was 4 3/4

hence could be seen as negligent. Wild.

[caseymoz]

32. The defense screwed up, that's what happen.

The judge agreed with the defense's argument but said it didn't have any bearing here, and he was absolutely right.

[MindPilot]

15. Then that 4-year-old better be able to vote, drive, and drink

own a firearm, enter into contracts and have consensual sex.

[pnwmom]

18. I have no problem with the lawsuit against the parents, but

suing the children should not have been allowed. Next we'll be requiring children to purchase liability insurance before allowing them on the playground.

[Odin2005]

21. This is complete BS!

[redirish28]

22. I've heard everything now please let me out of this INSANE cage of a country

[daleo]

28. It's like a Monty Python skit

Lawyers arguing over suing babies.

[caseymoz]

31. Sounds like the defense made a serious mistake arguing the case.

When your brief says that a child under four cannot be held negligent but the child in question is between four and five . . . well, it would have been negligence on the judge's part to side with the defense and dismiss the case on an immediately erroneous argument and the case could have been reinstated by another judge.

Now, if the defense had argued that a child under the age of five could not be held negligent, then they at least give the judge a chance to be correct if he rules in your favor.

I realize that sounds like a few pennies difference, but I think it made all the difference here.

[Hepburn]

34. Negligent supervision of the children by the adult in charge...

...the children are not negligent...but the adult is. There is, IMO, liability for the damages.

BTW: Years ago, a friend of mine with a VERY expensive motorcycle had is damaged by a child who was about the same age as those in the OP. I coached my pal on how to do the law suit. He won. The parents did not supervise the child ~~ and the court found for my pal on the theory of negligent supervision.

[caseymoz]

36. Yes, but they are suing the CHILDREN and parents, separately.

Apparently, they want the proceeds of two generations with this.

[struggle4progress]

53. Separately, or jointly and severally?

[caseymoz]

78. Reread the article to see. nt

[struggle4progress]

104. I( found nothing there to support your claim that parents and children are "separately" sued

[caseymoz]

113. Different lawyers for each? nt.

[struggle4progress]

115. Very common in suits with multiple defendants: one defendant's best defense

may not be the best defense for another defendant, so a single lawyer can't give all the best defense simultaneously

[starroute]

37. It sounds ridiculous to me

I grew up in New York. We would race our tricycles at high speed on the sidewalk when I was four -- including going round the corner and out of sight of our mothers. Older kids would ride their bikes along the pedestrian walks on Riverside Drive. For that matter, there were even roller skating areas built right into the pavement of those walks, and I'm sure that sometimes kids lost control and collided with the pedestrians.

A city is multiple use. Kids play on the sidewalk or on the park paths. It's just how it is. Unless there were special factors in this incident that you can point to and say the mothers should have known better, I don't see what the charge is.

[Hassin Bin Sober]

59. Sure. You can do ALL those things you mention.

UNTIL you knock down an old lady, break her hip and kill her. THEN you and, most likely, your parents become liable.

Just because an action is otherwise legal to do, that doesn't mean you can do it in a way that causes injury to another person. It's not the law of the jungle.

[DinahMoeHum]

38. The judge is standing on a brick to kick a duck's ass.

How fucking big of him. Asshole should be kicked out next time he comes up for re-election.

[ProudDad]

41. Frontiers of Libertarianism...

in a mindless litigious shabby excuse for a country!

[pnwmom]

43. And we're all automatically accepting that the 4 year olds were racing

and hit this 87 year old hard enough to knock her over. Maybe that IS what happened. But that's only one side of the story -- the plaintiffs' side.

The sad fact is that for many 87 year olds, balance and falling are major issues. An elderly person with these problems could flinch at the sight of an oncoming bike and that flinching itself could cause her to lose her balance. A jury will need to decide this one. But the children themselves clearly are too young to be defendants, because they are much too young to understand the possible consequences of their actions.

Or at we so litigious now that even 4 year olds should carry liability insurance?

[depakid]

46. You take your plaintiff's as they are- healthy or frail

And yes, it's wise to have personal injury coverage through renters or homeowners policies.

[pnwmom]

48. And you take the plaintiff's claim as telling just one side of the story.

Something a lot of people here don't seem to understand.

[depakid]

56. Unless you have a situation of comparative negligence, the woman's frailty is irrelevant

Something people here don't seem to understand.

Age and some aspects of health could have bearing on damages, but not liability.

[pnwmom]

58. We don't even have enough facts to know

that the children actually bumped into the woman with their bikes, do we? All we have is a legal claim -- no facts yet, just claims.

But the woman's frailty IS relevant in this case because the case is about negligence. To be negligent, a child would have to understand the possible impact of his or her actions. But these children are too young to understand that a fall to an elderly person is much more dangerous than the falls the children experience every day.

[depakid]

62. :sigh: the judge ruled on a point of law on a motion to dismiss

and NO the woman's frailty is not an issue.

She does NOT by being frail surrender her right to walk down the sidewalk without being knocked over by kids racing their bikes.

What the kids know or don't know about the plaintiff is likewise irrelevant.

The plaintiff could look healthy (as some athletes do) and suffer from some congenital condition or sport related infirmity. Whether the defendant's actions are the proximate cause of the death or subsequent injury- that's all that matters.

[pnwmom]

91. :sigh: The four year olds are incapable of meeting the reasonable person

standard, which is needed to prove negligence.

"The reasonable person will weigh all of the following factors before acting:
the foreseeable risk of harm his actions create versus the utility of his actions;
the extent of the risk so created;
the likelihood such risk will actually cause harm to others;
any alternatives of lesser risk, and the costs of those alternatives."

http://en.wikipedia.org/wiki/Negligence

A four year old isn't capable of making such a calculation, so shouldn't be held responsible for his or her actions. And indirectly, the woman's frailty IS an issue, because it goes to the issue of "the likelihood such risk will actually cause harm to others." An adult would know that an 87 year old could die as a result of a fall. A four year old could not be expected to know that. A four year old doesn't even understand death.

You are right that the judge made a decision on the narrow point as to whether the children were under 4 or over 4; the defending lawyer apparently didn't present the correct issue before the court -- s/he should have made the claim that children under 5 aren't capable of acting as reasonable people. Which would be easy to prove.

And again, we don't even know that the plaintiffs claim is correct -- that the bicycles even touched the woman. She could have thrown up her hands as they approached and lost her balance. But the lawsuit that determines this claim should have been filed against the parents, not the children.

[Hassin Bin Sober]

99. You can't make up your own law for this argument.

Whether you like it or not, a 4.5 year old CAN be held to the reasonable person standard. It's ESTABLISHED law. The nuance you are missing is the child is held to a reasonable standard for a 4.5 YEAR OLD person. Not an adult.


I mention this at the risk of turning this in to an argument on the UNKNOWN facts of the case (which seems to be your desire):
One would, at the very least, assume the children were instructed by mommy(s) before they ventured in to the great outdoors, that it wasn't "nice" to run in to other people - that it might "hurt" someone. My neighbor is already instructing her 13 month old child that "hitting mommy hurts." It's not unreasonable to ask that 4 or 5 year old children not "Malachi-Crunch" little old ladies on the sidewalk. If that is what happened.

Again, we don't know anything about the facts of the case. You want to say "how do we even know they touched her"......How about this? How do we know the little bastards didn't just watch a re-run of The Omen and decided to try their hands at knocking old ladies over for fun? Ridiculous? Sure. About as ridiculous as you arguing facts of the case with ZERO knowledge.

This is for the court to decide.


Re her frailty: Again, you don't get to make up your OWN laws here. Google "eggshell skull" .... you find your victims as they are. It's WELL ESTABLISHED LAW.

Old frail people are still members of society and entitled to protection and recovery of injury when negligently injured.

My good friend is being sued right now for huge money because he "bumped" somebody with his car in a crosswalk downtown. He didn't CAUSE any injury to the plaintiff but it turns out the guy is recovering from double knee surgery and my friend's "bump" aggravated his injury and caused a "setback" to his recovery. By your "common sense" theories the guy should have locked himself away till healed and, absent that, anyone who negligently injures him gets to wash their hands under the "so sad too bad" or the "kids will be kids" legal doctrines some here seem to think exists.

[pnwmom]

101. By your logic a 4 year old who skips down a hall

and bumps into a man who recently had double-knee surgery should be held liable for causing a setback to his recovery.

Four year olds can't be held to adult standards because they lack the reasoning power of adults.

In NY, it is NOT established law that a 4.5 year old can be held to the standard. The established law in NY addresses children under 4 and says that they cannot be held to the standard. There is no "bright line" -- no established law -- on the issue of children under the age of 5.

[Hassin Bin Sober]

105. "can" means it "can" go to court. It doesn't mean "is absolutely"

And, yes, a 4 year old AND HER PARENTS (a point you fail to acknowledge for some reason) "CAN" be held liable IF found to be negligent - for a 4.5 year old. Also, the plaintiff will have to show actual damages.

Just having had surgery doesn't turn your body in to an ATM machine. You are reducing this discussion to the absurd. A bump AND injury is required to collect. If your mythical client wants to enter court with a straight face and claim injury from a 4 year old's bump, then, Have at it Haus, as the man says.

I think it's pretty fucking evident the lady in the OP received an injury. No?

In my friends case, the "bag of money floating around" was established the moment my friend's car made contact with the plaintiff's body. Pedestrian versus auto is, for all intents and purposes in this city, a free bag of money. All that was needed was some creative lawyering to establish "actual" damages for collecting.

A friend of mine who was hit on her bike started getting calls from lawyers the next day (the ambulance chasers must scan police reports). Without knowing about any injuries, if any, the lawyers were waiving $25k settlements under her nose to file.

[pnwmom]

114. It's evident the woman died. That's all we know.

We don't even know the children actually bumped into her. That's just a claim in a lawsuit at this point. The woman could have seen them, waved, and lost her own balance. With an 87 year old -- I am in contact with elderly people almost daily, since my m.i.l. is in a retirement residence nearby -- balance and falling are huge issues.

The issues of fact still have to be determined by the court. But, again, the children are too young to testify on their own behalf. We shouldn't hold them responsible for an event they couldn't either anticipate or reliably testify about now.

[Hassin Bin Sober]

123. And now you are arguing the facts of the case.

[pnwmom]

127. I am merely pointing out that there are two sides to the story

and we've only heard the plaintiff's side.

And now it turns out that the original article was wrong. The NY Times issued a correction today saying that the woman's cause of death was UNRELATED to the injury, and that she died 3 months, not three weeks, after the accident.

(Note: if the death had been related to the hip fracture, that would have been a related, not unrelated, cause.)

http://www.nytimes.com/2010/10/29/nyregion/29young.html...

This article has been revised to reflect the following correction:

Correction: October 30, 2010

An article in some editions on Friday about a lawsuit that claims an elderly woman was severely injured by two 4-year-olds racing their bicycles on a Manhattan sidewalk misstated the timing of the woman’s death. The woman, Claire Menagh, died of unrelated causes three months after she was struck, not three weeks.

[Hassin Bin Sober]

129. We haven't heard EITHER side! There hasn't been a trial. Jesus Christ.

The fact she died due to unrelated causes has WHAT to do with this discussion? Is there any doubt she fell and broke her hip? ABSOLUTELY NOT!

Besides explaining why there isn't a wrongful death claim.

[jberryhill]

90. Uh, this was on a motion to dismiss, not a trial result

You do not seem to understand that upon evaluating whether a claim can proceed to trial, the entire point is that the plaintiff's claim is taken as true.

When you file a motion to dismiss, you are saying, "This case can't go to trial even if everything in it is true."

That's what a ruling on a MOTION TO DISMISS is for, and it is what you don't understand.

At this procedural point, pre-trial, the Plaintiff's claim is SUPPOSED to be taken as hypothetically true. That's how the law works.

[pnwmom]

132. Even if the children bumped into the woman, and even if that caused her an injury

(we already know it didn't lead to her death -- a correction was issued today) the case shouldn't have been allowed to proceed. These four year olds should have been treated just the same as 3 year olds -- because neither age group is old enough to understand the dangers that were posed here.

[muriel_volestrangler]

109. So what if she did flinch? That would still be because of the negligence of the parents

The parents have to make sure their children don't endanger sidewalk users. That includes keeping them at low enough speeds that others can use the sidewalk as it is meant to (ie for walking, not playing at speed). The court can decide if the woman would have fallen if the children weren't there on their toys.

Liability insurance for some children might be an excellent idea. These children appear to be a liability - one the parents chose not to control.

[Withywindle]

47. I think suing the parents is totally legitimate and I support it.

But the kids, no. WTF? They don't even know what it means.


For those people saying the old lady's family were obviously only out for money...well, maybe, but why would you assume that? Are you assuming they didn't love her? That they weren't grieved by her death? That they didn't consider her sudden killing a huge, irreplaceable loss that deserves a harsh lesson paid to the people who could have prevented it?

I'm not saying this is the case either. I don't know either way. But I have a HUGE problem with the idea I see coming up in reactions to stories like this that imply that the younger relatives obviously are only motivated by money. Because, of course, no one could ever deeply love an ugly slow-moving old person who talks a lot about the old days, right? The only possible motivation for being enraged by her untimely death MUST be money.

[pnwmom]

49. What other reason do these people have for suing the children?

I don't blame them for suing the parents. But I can't see any reason for suing the innocent 4 year olds other than they must have had some assets the plaintiffs wanted. No one can seriously believe that a child under 5 could be at fault in this situation. Four year olds don't understand how frail an 87 year old can be, much less understand the concept of death.

Think about it. Small children get knocked into and fall frequently -- usually with no ill effects. How could they know that a sidewalk fall could kill an elderly person?

That's why, whatever happened, only the parents should be held responsible.

[Withywindle]

51. Do we know for a fact that the relatives were greedy?

we don't. I think suing the children is stupid (because, hello, four-year-olds have no money). We don't know what the actions of the parents were. we don't know what the class relationship between the family of the elderly lady and the family of the kids is (from the way rent control works in NYC and the way neighborhoods have changed over decades, I suspect a young family with kids that can afford to live in Midtown has a MUCH higher disposable income than an elderly lady who has probably had the same place for 50 years).

And, also, I don't know if the children were violating any laws (again, with the parents' negligence permitting it). I know in a lot of cities, riding bicycles on sidewalks is completely forbidden for anyone, in other places it's allowed for children under a certain age, etc. I don't know of any big city where anyone is allowed to do it with impunity--for just this reason, it's dangerous to pedestrians, especially the elderly and disabled, who can very likely be killed by even a 4-year-old under certain conditions. It's the job of parents to make sure their children are aware of this from day one.

Again, there's just a lot we don't know. I agree on that. I have my assumptions too - I just wanna make sure they all get questioned.

[pnwmom]

54. In that neighborhood, actually,

the children could have money -- in the form of college funds, accounts set up by the grandparents, etc.

We do agree that whatever happened, this is the responsibility of the parents. The same logic that would hold the children civilly responsible for the death of this woman could send another 4 year old to adult prison for murder.

[depakid]

60. Because it's malpractice NOT to state a cause of action or join a party

when it could lead to recovery for the client's injuries- unless the client specifically gives informed instructions not to pursue it.

[pnwmom]

95. But the question wasn't why the ATTORNEYS would do this.

It's why the plaintiffs would do this. They're doing it because they want the money, and they are willing to go after the 4 year olds for it.

[jberryhill]

96. Can I ask you a question?

If the parent's landlord's insurance policy covered negligent acts by children of tenants, but did not cover negligence by adult tenants, would that change your perception of the situation?

You seem not to understand what tort litigation is primarily about.

[Hassin Bin Sober]

144. *crickets*

[TexasObserver]

142. It's possible both sides are actually insurance companies.

It's common for insurance companies to be subrogated to the rights of their insured, and to "step into the shoes" of the insured for purposes of pursuing litigation. Here's how it works.

Suppose the elderly lady had insurance which covered her medical care which resulted from the accident. Let's say they paid out $150,000 for her resultant care. To the extent they make such payments, they likely own the right to stand in her shoes for purposes of seeking recompense of those dollars. They first make demand upon the insurer for the little girl's parents, and when that is turned down, they file suit in the lady's name, but they are the real party at interest. The elderly woman's health insurer could be pursuing this claim in her name, but for their benefit.

Or, suppose the real party at interest is the hospital. Imagine the hospital bill is huge, and her estate cannot pay. The estate makes a deal with the hospital whereby it assigns the rights of the estate to the hospital, and agrees to cooperate with the prosecution of the civil claim for damages against the child and her parents (and their insurer).

The result is a lawsuit in which the named parties are the little girl and the elderly lady, when in reality, it is a fight between two insurance companies over which side will pay the loss.

Insurance subrogation cases are common. Most of the time, no one except those involved in the suit know this about the case. It is typically forbidden to disclose to the jury such arrangements, because insurers want the jury thinking about the little girl or the elderly woman, not Allstate versus State Farm (names picked only for their high recognition and market penetration).

[Blasphemer]

61. Presumably the claimants are covering all their bases

If the parents are not found to be liable but the children are, then either the parents pay up on their children's behalves or the children have to pay up when they become adults. I think it's fair that the suit be allowed to move forward. The final verdict may well be that the children are not liable but the complaint should be heard.

[Hassin Bin Sober]

63. Bingo. It's quite possible including the children will allow ...

... a claim to be made on a home-owner's insurance policy held by the parents.

[jberryhill]

87. Shhh.... don't confuse the moral outrage with the reality of how this stuff works

I agree with you. The claim against the children may have a definite impact on whether or not the injury is covered by an appropriate insurance policy.

You win the prize here, but nobody in the thread will notice.

[ixion]

66. and people wonder why things are so screwed up

well, here's a good example.

[hatrack]

68. What are they going to do, put a lien on the Etch-A-Sketch & the training wheels?

:eyes:

[jberryhill]

88. Homeowner's/Renter's insurance

The fact is that the claim might not be covered if it is against the parents alone.

They may only be tenants, but then the question is what types of situations are covered by the landlord's insurance policy.

These things are not always as outrageous as they appear, but insurance companies want you to think so.

[Name removed]

69. Deleted message

Message removed by moderator. Click here to review the message board rules.

[Evasporque]

70. Hurry jump on the GOP Tort Reform Plank!!!!

Hurry while the faux outrage is burning!

[struggle4progress]

75. bingo

[RobinA]

79. Am I the Only One

here who thinks a 4-year-old is old enough to know not to run people down with a bike? Not that I'm advocating legal action, but people here seem to think a four year old wouldn't know better. I think they should. It's kinda basic.

[Name removed]

80. Deleted message

Message removed by moderator. Click here to review the message board rules.

[jberryhill]

81. It may simply be a procedural thing to establish a derivative claim against the parent

It may be that in order to establish secondary liability on the part of the supervising parent, that the plaintiff has to establish primary liability on the part of the child in order to maintain a claim against the parent.

Sometimes things shake out that way, depending on the way in which the state law deals with claims of this sort.

[Name removed]

83. Deleted message

Message removed by moderator. Click here to review the message board rules.

[missheidi]

120. Civil suits can show up on background checks,

so I wonder when these kids get old enough to get a job, if this will hinder it?

[dipsydoodle]

137. New York child sued for woman's death after bike crash

Source: BBC News

A New York child can be sued for crashing a bicycle into an elderly pedestrian and causing injuries that led to her death, a judge has ruled.

Juliet Breitman and another child were four years old when they raced their small bicycles on a Manhattan street and ran into Claire Menagh, 87.

Juliet's lawyer had argued Juliet was too young to be held negligent.

The judge disagreed, ruling Juliet's lawyer had presented no evidence she lacked intelligence or maturity.

Read more: http://www.bbc.co.uk/news/world-us-canada-11657376

[KingOfLostSouls]

138. while stupid, the defense lawyer fucked up it seems

I mean, all he had to do was present her what, preschool? class work.

LEGALLY, it seems the defense lawyer counted on people to be like, "OH ITS A CHILD" where as the law doesn't always work like that and needs evidence.

[Xipe Totec]

139. I think the guy on the bench lacks intelligence or maturity nt

[JVS]

140. I don't see anything wrong with the judge's decision.

[Skittles]

146. perhaps it should have just been

that the caretaker (in this case, the mother) could be sued - it sounds ridiculous to hold a four year old responsible

[activa8tr]

147. I SAY!!!! Life imprisonment for this young woman!!!! THESE PEOPLE need to be

off of our streets if they are going to be so dangerous at 4 years of age!!!! Just think how ugly this young woman would be if she were allowed to get as old as I am (64),..............by THEN she would have killed us ALL by her wreckless bike riding!!!

Put her in prison for life, better still, executer her!!!!!!!!!!!!

OH please, I am NOT going to post this............ OK here it is... just in case there are stupid people reading this post....

:sarcasm:

Only because I don't want to be banned for such a stupid statement.

[lightningandsnow]

149. Isn't knowing that she killed someone punishment enough?

If I was that young, and I accidentally killed someone, I don't think I'd ever get over it.

[Xenotime]

151. Good. Time to hole people accountable.

[JoeyTrib]

152. Sue a 4 year old but not BP for the fucking Gulf?

I don't get it.