NYT Correction: 4 year old bikers did not kill 87 year old woman after all.

[pnwmom]

So the story that claimed an 87 year old died of injuries sustained in a training wheeled hit by 4 year olds has already been shown to be wrong. She died three months (not three weeks) later of "unrelated causes."

(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?_r=1&src=me&ref=general

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.

[depakid]

1. And this changes the legal situation how?

:shrug:

The Times got the story mixed up, the judge and the lawyers did not.

[pnwmom]

2. It would change the amount of any damages that could possibly

be awarded based on a case that went forward because of this judge's ill-considered opinion that a normal four year old would understand that bumping into an elderly person could result in a serious injury. If the children haven't spent much time around very frail older people -- which is common in our society -- they are most likely not to have known how much more frail an 87 year old would be.

I am not disputing that the judge is well acquainted with NY "bright line" law. I am saying he knows very little about 4 year olds, but his opinion of their capacity was at the basis of his decision.

"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.'”

[depakid]

5. It doesn't change one single thing

The facts in the complaint stand and the woman's frailty is utterly and completely irrelevant under the law. No amount of wishful thinking, rationalization or counterfactuals changes that.

[pnwmom]

6. It absolutely does. If the injury included DEATH, potential damages would be higher.

If the plaintiffs are able to win the case.

Neither of us knows what the claim says, but the article yesterday said that the woman had suffered a hip fracture that caused her death 3 weeks later. The NY Times has apparently now seen evidence that that was wrong.

[depakid]

8. It's the same complaint on file and the same points of law!

That the NY Times messed up their story changes nothing.

[Hekate]

10. You seem to really want those preschoolers sent to prison for a time-out, don't you?

Help me out here.

[Hassin Bin Sober]

13. Prison? It's a civil claim of personal injury. Not a criminal case.

As pointed out in the other thread, by two DU attorneys, the inclusion of the children in the claim is most likely necessary to make a claim on the parent's/landlord's home-owner's/renter's policy.

[Hekate]

15. TY for your input. The poster to whom I was speaking seemed very concerned that the tots be blamed

... regardless. That's what I was calling him out on, although it is always possible I misunderstood his repeated posts.

Hekate

[Hassin Bin Sober]

16. No one is saying the children were, in fact, negligent.

This attempt at motion to dismiss was most likely an attempt by the insurance company to shield itself from paying on a claim by breaking the chain from child to parent to policy pay-out.

It was a denial of motion to dismiss based on established New York case law that a child over 4 years old is not AUTOMATICALLY immune from a negligence claim. There was NO finding of fact regarding the merits of the case itself OR the required proof at trial of the child's mental capacity and/or "un-reasonableness" of her actions.

There's a long thread in LBN where the OP insists on trying the facts of the case not yet presented. No facts have been presented. For all we know, the elderly lady may, in fact, be found 100 percent at fault.

[depakid]

18. Read the posts by Texas Observer, jberryhill and I on the LBN thread

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=102x4592436#4592975

Bottom line is that if the people in New York don't like the statutes or case law interpreting their statutes, then the legislature can change them.

That said, we suspect this is method for recovering on an insurance policy (or perhaps the defendant's got deep pockets) and there may also be a need to establish underlying, primary negligence in order to state a derivative claim against the parents.

In addition, we don't know how much the family may have been out of pocket (in addition to the defendant's pain and suffering).

Word to the wise: A $100 renters' policy can spare you a whole lot of grief.

[pnwmom]

17. Many of the threads yesterday centered on the idea that this woman's death

had been caused by the children. This apparently was not the case.

True, this doesn't change the legal documents that have been filed. As I said yesterday, we don't KNOW what the facts are -- and already they are in dispute.

But it does cast the case in a different light.

[Hassin Bin Sober]

19. It doesn't cast anything in a different light because the failed motion to ...

.... dismiss was never about anything OTHER than a motion to dismiss based on case law or, in this case, lack of case law to support the motion to dismiss.

The legal documents never mentioned any facts of the case or any requested damages. Not to mention wrongful death.

[Hassin Bin Sober]

9. It never was a wrongful death action. It was a mis-print by the NYT.

Here is the text of the denial of motion to dismiss. The case always has been injury NOT wrongful death:


SUPREME COURT OF NEW YORK, NEW YORK COUNTY

2010 NY Slip Op 32892U; 2010 N.Y. Misc. LEXIS 5039

October 1, 2010, Decided
October 15, 2010, Filed

NOTICE: THIS OPINION IS UNCORRECTED AND WILL NOT BE PUBLISHED IN THE PRINTED OFFICIAL REPORTS.
In this action for personal injury, plaintiff alleges that the infant defendants, who were racing bicycles on a sidewalk while under the supervision of their parent defendants, struck the plaintiff with their bicycles, causing severe injuries to the elderly plaintiff Claire Menagh. The infant defendant Juliet Breitman, sued herein as Juliette Breitman, seeks in this pre-answer motion to dismiss plaintiff’s complaint, as against her only, based upon documentary evidence and upon failure to state a cause of action, pursuant to CPLR § 3211(a)(1) & (7). Defendant-movant has attached her birth certificate as an exhibit to her motion papers. The sole issue before the Court is whether an infant aged four years, nine months, is non sui juris, incapable of negligence as a matter of law, under the facts presented.

CPLR 3211(a) Motion to Dismiss Standards

CPLR 3211(a) provides:
(a) Motion to dismiss cause of action. A party may move for judgment dismissing one or more causes of action asserted against him on the ground that:
1. A defense is founded on documentary evidence; . . .

7. the pleading fails to state a cause of action<.>

Pursuant to CPLR 3211(a)(1), in order to “prevail on a motion to dismiss based on documentary evidence, the documents relied upon must definitively dispose of plaintiff’s claim” (Bronxville Knolls v Webster Town Ctr. Pshp., 221 AD2d 248, 634 N.Y.S.2d 62 (1st Dept. 1995); Juliano v McEntee, 150 AD2d 524, 541 N.Y.S.2d 232 <2d Dept 1989>; Demas v 325 W. End Ave. Corp., 127 AD2d 476, 511 N.Y.S.2d 621 <1st Dept 1986>). A CPLR 3211(a)(1) “motion may be appropriately granted only where the documentary evidence utterly refutes plaintiffs factual allegations, conclusively establishing a defense as a matter of law” (Goshen v Mut. Life Ins. Co., 98 NY2d 314, 326-27, 774 N.E.2d 1190, 746 N.Y.S.2d 858 <2002>).

Upon a 3211(a)(7) motion to dismiss for failure to state a cause of action, the “question for us is whether the requisite allegations of any valid cause of action cognizable by the state courts ‘can be fairly gathered from all the averments” (Foley v D’Agostino, 21 AD2d 60, 65, 248 N.Y.S.2d 121 <1st Dept. 1964>, quoting Condon v Associated Hosp. Serv., 287 NY 411, 414, 40 N.E.2d 230 <1942>). In order to defeat a pre-answer motion to dismiss pursuant to CPLR 3211, the opposing party need only assert facts of an evidentiary nature which fit within any cognizable legal theory. (Bonnie & Co. Fashions, Inc. v. Bankers Trust Co., 262 A.D.2d 188, 693 N.Y.S.2d 19 <1st Dept. 1999>.)

When determining a CPLR 3211(a) motion, “we liberally construe the complaint and accept as true the facts alleged in the complaint and any submissions in opposition to the dismissal motion” (511 W. 232nd Owners Corp. v. Jennifer Realty Co., 98 NY2d 144, 151-152, 773 N.E.2d 496, 746 N.Y.S.2d 131 <2002>; Leon v Martinez, 84 NY2d 83, 87, 638 N.E.2d 511, 614 N.Y.S.2d 972, <1994>; Sokoloff v Harriman Estates Dev. Corp., 96 NY2d 409, 754 N.E.2d 184, 729 N.Y.S.2d 425, <2001>; Wieder v Skala, 80 NY2d 628, 609 N.E.2d 105, 593 N.Y.S.2d 752, <1992>). “We also accord plaintiffs the benefit of every possible favorable inference” (511 W. 232nd Owners Corp., 98 NY2d at 152; Sokoloff v Harriman Estates Dev. Corp, 96 NY2d at 414).

Non Sui Juris

Defendant-movant correctly notes that infants under the age of four are conclusively presumed incapable of negligence (Verni v Johnson, 295 NY 436, 438, 68 N.E.2d 431 <1946>). Defendant-movant Juliet Breitman, however, was over the age of four at the time of the subject incident.

For infants above the age of four, there is no bright line rule, and “in considering the conduct of an infant in relation to other persons or their property, the infant should be held to a standard of care . . . by what is expected of a reasonably prudent child of that age, experience, intelligence and degree of development and capacity” (Gonzalez v Medina, 69 AD2d 14, 18, 417 N.Y.S.2d 953 <1st Dept. 1979>, citing Camardo v. New York State Rys. 247 N.Y. 111, 159 N.E. 879 <1928>; see also Steeves v City of Rochester, 293 NY 727, 731, 56 N.E.2d 735 <1944> <"The general rule is that 'a child is not guilty of contributory negligence if it has exercised the care which may reasonably be expected of a child of similar age and capacity.'">; Weidenfeld v Surface Transp. Corp. of N.Y., 269 AD 341, 345, 55 N.Y.S.2d 780 <1st Dept 1945>; McLoughlin v Bonpark Realty Corp., 260 AD 471, 23 N.Y.S.2d 156 <1st Dept. 1940>; Redmond v City of New York, 81 AD2d 908, 909, 439 N.Y.S.2d 200 <2d Dept. 1981>, affd 55 NY2d 796, 432 N.E.2d 136, 447 N.Y.S.2d 434 <1981>; Eagle v Janoff, 12 AD2d 638, 639, 208 N.Y.S.2d 579 <2d Dept. 1960>; Yun Jeong Koo v St. Bernard, 89 Misc 2d 775, 779, 392 N.Y.S.2d 815 <sup>).

If “conflicting inferences may be drawn, the question is one of fact; if only one inference can be drawn the question is one of law” (Camardo, 247 NY at 116 <1928>; accord Steeves, 293 NY at 731-32; see also Weidenfeld, 269 AD at 345; Republic Ins. Co. v Michel, 885 F Supp 426, 432-34 ; cf. Boyd v Trent, 297 AD2d 301, 746 N.Y.S.2d 191 <2d Dept. 2002> ).

This method of analysis has resulted in ostensibly conflicting case law, in which children less than a month apart in age are treated differently as to sui juris status. For example, a child aged four years, ten months who is hit by a car while crossing the street at his mother’s direction is non sui juris as a matter of law (Ehrlich v Marra, 32 A.D.2d 638, 300 N.Y.S.2d 81 <2d Dept. 1969>). On the other hand, an unsupervised child of the same age who is struck by a car will not be held non sui juris as a matter of law, absent evidence that the child is otherwise unable to comprehend the danger posed by an approaching vehicle (e.g. Camardo, 247 NY at 111, Yun Jeong Koo, 89 Misc 2d at 775).

According to defendant-movant, supervision is the distinguishing factor between these cases. The Court disagrees. A parent’s presence alone does not give a reasonable child carte blanche to engage in risky behavior such as running across a street. A reasonably prudent child, whom we may presume has been told repeatedly by the age of four to look both ways before crossing a street 1, knows that running across a street is dangerous even if there is a parent nearby. Despite this, if a parent or other trusted adult actively directs a four year old child to cross a street at a certain time, the only logical inference is that the child will reasonably believe it is safe to cross the street at that time. Because a child above the age of four will only be non sui juris if it is impossible under the circumstances to draw any other inference, parental supervision is unlikely to affect the sui juris status of a child above the age of four unless the parent has taken an active role in encouraging the child’s conduct (see Camardo, 247 NY at 111)

Defendant-movant’s reliance on Romanchuk v County of Westchester (40 A.D.2d 877, 337 N.Y.S.2d 926 <2d Dept. 1972>), to establish that a child days shy of the age of five can be held non sui juris as a matter of law, is therefore misplaced. In that case, the child was actively placed onto a sled and pushed down a slope by his father, whereupon the sled was allegedly struck by a vehicle. The Romanchuk child was declared not to be contributory negligent as a matter of law, not because of his age or because of a mere parental presence, but because the only logical inference was that the child reasonably believed that allowing his father to push him on a sled was a safe course of action.

Applying the Camardo conflicting inferences rule and reasonable child standard to the facts presented here, defendant-movant cannot be held non sui juris as a matter of law. The motion papers and pleadings, do not indicate that defendant-movant’s mother had any active role in the alleged incident, only that the mother was “supervising,” a term that is too vague to hold meaning here. There are no exhibits containing evidence as to the defendant-movant’s lack of intelligence or maturity, nor are there any other mitigating factors apparent in the record that would 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.

Furthermore, even if defendant-movant had alleged facts which, if true, might constrain the Court to a single inference, all facts must be viewed in a light most favorable to plaintiff (see supra; 511 W. 232nd Owners Corp., 98 NY2d at 152; Sokoloff v Harriman Estates Dev. Corp, 96 NY2d at 414). Merely introducing such allegations would therefore still be insufficient. Rather, defendant-movant had the burden of conclusively establishing such allegations.

Because defendant-movant has utterly failed to allege, let alone establish, facts constraining the Court to a single inference, defendant-movant’s sui juris status is a matter of fact for a jury, and this motion to dismiss must be denied.

ORDERED, that the motion to dismiss by defendant Juliet Breitman is denied; and it is further,

ORDERED that counsel are directed to appear for a preliminary conference in Room 320, 80 Centre Street, on December 8, 2010, at 11:00 A.M.; and it is further

ORDERED that the plaintiff shall serve a copy of this order with notice of entry upon all parties.

This constitutes the Decision and Order of the Court.

Dated: October 1, 2010

Enter:

/s/ Paul Wooten

PAUL WOOTEN J.S.C.</sup>

[Hassin Bin Sober]

20. He concluded that there was no evidence of Juliet’s 'lack of intelligence or maturity'

Because none was presented.

All that was presented was a copy of the kids birth certificate to show her age AND a request to dismiss based on non-applicable case law (under 4 years old).

There are some other issues that affect the age cut-off for liability that depends on whether the child was acting under adult supervision or not - again that was left for the jury to decide.

[SheilaT]

3. For what it's worth, when

an elderly person falls (for whatever reason) and breaks some bones, some fairly high percentage of them die within six months. Don't have the actual statistics, but it happened with my 82 year old mother. Fell, probably had a occult fracture (meaning it couldn't be found on x-rays) of the hip, was in and out of hospitals for the next three months and then died. Very common story, alas.

[pnwmom]

4. True, but since the article says she died of unrelated causes,

that would rule out complications of a hip fracture.

When it comes down to it, a significant fraction of all 87 year olds will die within 6 months -- of heart conditions, cancer, etc. All we know know is what the article says -- that the cause was unrelated. I assume the NY Times wouldn't have issued that correction without some evidence.

[petronius]

7. That would seem to be a somewhat substantial correction

Seems like an interesting case, I wonder where the preexisting assumption about 4 y.o. being the negligence cutoff came from. There must have been some earlier cases that drew that line. I'm also wondering what the judge really thinks of it - all he really did was make the technical ruling that there is nothing currently in the law that precludes suing a 4 y.o. Most of us would automatically conclude that was a ludicrous idea, but apparently the victim's estate's lawyer didn't...

[Hassin Bin Sober]

11. The pre-existing assumption comes from established case law:

There was no correction to the case as it has ALWAYS been an injury claim NOT a wrongful death claim. The NYT times screwed up in its reporting.

From the motion to dismiss denial. Johnathan Turley also discusses the case at the link:



http://jonathanturley.org/2010/10/29/tykes-on-bikes-new-york-court-finds-toddler-can-be-held-for-tort-damages/

Non Sui Juris

Defendant-movant correctly notes that infants under the age of four are conclusively presumed incapable of negligence (Verni v Johnson, 295 NY 436, 438, 68 N.E.2d 431 <1946>). Defendant-movant Juliet Breitman, however, was over the age of four at the time of the subject incident.

For infants above the age of four, there is no bright line rule, and “in considering the conduct of an infant in relation to other persons or their property, the infant should be held to a standard of care . . . by what is expected of a reasonably prudent child of that age, experience, intelligence and degree of development and capacity” (Gonzalez v Medina, 69 AD2d 14, 18, 417 N.Y.S.2d 953 <1st Dept. 1979>, citing Camardo v. New York State Rys. 247 N.Y. 111, 159 N.E. 879 <1928>; see also Steeves v City of Rochester, 293 NY 727, 731, 56 N.E.2d 735 <1944> <"The general rule is that 'a child is not guilty of contributory negligence if it has exercised the care which may reasonably be expected of a child of similar age and capacity.'">;

[petronius]

12. I got that, what I meant was: where did the preexisting case law come from?

Why four? I could look it up, but I'm lazy and that's not my research forte. I'll go read your link instead - thanks!

[Hassin Bin Sober]

14. Four is the standard in NY case law. Other states are higher. Illinois is 7

The child still has to be found negligent based on reasonable standards for a person his age and mental capacity. As Turley points out, not necessarily an easy hurdle to cross.