Firm Newsletter - March 2015

Photo by BobMcLeanLLC/iStock / Getty Images

Photo by BobMcLeanLLC/iStock / Getty Images

Degree of Care for a Child

All states accept the idea that a person’s child-hood is a relevant circumstance to consider when determining negligence. Still, states take different approaches on how to take childhood into account. Children are not as capable as adults at recognizing risks that their conduct may cause and they sometimes lack the ability to make an appropriate choice given many alternatives. Therefore, the law regarding the negligence of a child asks whether the child has made reasonable choices and engaged in reasonable behavior given the child’s limitations.

If the defendant in a lawsuit is a child, she is held to a standard of care based on her age. This is broken down into three separate age groups. A child under the age of five cannot be held to any degree of care because a child under five is incapable of negligence as a matter of law. At some age, a child is too young to be negligent as that term is used in law, and Texas has decided to set that age as under five. If a three-year-old runs into the street and is hit by a car, it does not mean that the driver is automatically liable. There is still a need to establish the driver was negligent or else the driver bears no liability. Nonetheless, a child under five cannot be held to any degree of care.

Between the ages of five and fourteen a child is held to a child’s standard of care. This is de-fined as what an ordinarily prudent child of the same age, experience, intelligence, and capacity would or would not have done under the same or similar circumstances. This is a question of fact for the jury to decide. However, evidence that a child is unusually intelligent or experienced for her age will not subject the child to an adult’s standard of care. The evidence used to determine this issue can come from those who know the child, such as her parents or teachers. Also relevant is evidence about the activity the child was involved in and her experience with that particular activity. One question might be what kind of instruction the child received from adults as to what precautions are needed for that activity.

A child over the age of fourteen will be held to an adult’s standard of care, unless it can be shown that the child lacks discretion or is under the handicap of some mental disability. Some states apply a child’s standard of care to children over fourteen, but in Texas there is a rebuttable presumption in favor of the child’s capacity to commit negligence if the child is at least fourteen years old.

There is one exception to the child’s standard of care, and that is when the child is acting as an adult. A child between the ages of five and fourteen is presumed to act as an adult when operating an automobile, truck, airplane, or boat, or when engaging in other activities that put the general public in danger. These are activities in which a minor can create danger to other members of the general public. When children choose to engage in dangerous activities characteristically engaged in by adults, no account is taken of their childhood. But not all “adult” activities require an adult standard of care to be imposed on a child. For example, although cooking is usually an adult activity, if a child injures someone by dropping a pan on them, the child standard of care would apply to determine any negligence.

Children are treated differently than adults in various areas of the law and tort law is no different. When a child is involved in a lawsuit involving negligence, the child’s age and activity the child was involved in will determine what degree of care will be used to judge the child’s conduct. Ultimately the jury will apply that standard to determine whether the child exercised the proper degree of care.

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