October 14th, 2015

About That Aunt Suing An 8-year-old…. (Updated x4)

Face of random kid that looks to be about 8

Face of random kid that looks to be about 8

It shot around the Internet yesterday, like so many other viral stories do, and all I could do was roll my eyes. It was the story of an exuberant 8-year-old boy in Connecticut leaping into the arms of his aunt upon seeing her, and her resulting injury, a broken arm.

The story was one that any adult could imagine. The woman testified:

All of a sudden he was there in the air, I had to catch him, and we tumbled onto the ground…I remember him shouting, ‘Auntie Jen I love you,’ and there he was flying at me.”

People were aghast. One only needs to read the comments of any article on the subject. How could you sue a beloved relative? And how could you sue a child?

But suing relatives (or close friends) happens all the time, particularly in auto collisions. Who, after all, are you most likely to be with at the time of a collision? A close friend or relative. Unless you drive a taxi, you don’t often have strangers in your car.

And it’s the same with your home, in that the most likely visitors inside are family and friends.

When I first saw the aunt-nephew story, my first thought was that homeowner’s insurance would cover the incident if there was liability, and that this was similar to suing a relative over a car crash. I tweeted as such:



This is, in fact, one of the reasons we have insurance. To cover us in case we slip up and someone is injured due to our negligence.

Certainly insurance companies would prefer that folks don’t sue. It would be a great business model, wouldn’t it, to keep collecting all those premiums and never pay anything out?

In a story later in the day yesterday, the jury came back with a defense verdict — one juror said the jury simply didn’t think the boy was negligent when measured against the reasonable conduct of a child his age. OK, I can live with that.

At some point we all grow up and become increasingly responsible, and that line of responsibility won’t only be gray for a child’s conduct, but ever-shifting depending on what happened. (see, for example, a 4-year-old sued in NY along with parent for negligent supervision.)

Would I have taken such a case? No. Because the jury did what I expect a jury would do. But eviscerate her on the Internet for it? No.  She took the advice of counsel. Bad judgment call perhaps, though the attorneys defend the decision to move forward (see update).

And the injured woman was interviewed and confirmed my thoughts: Suit was brought against the homeowners policy to cover the medical bills, but you don’t sue the insurance companies, you have to sue the individuals. From CNN, who interviewed the Aunt:

“This was meant to be a simple homeowners insurance case”

Also at the CNN story, the woman testified that she remains close with the family and recently took the boy (now 12) shopping for a Halloween costume.

As with so many other things on the Internet, many people will howl and yell first due to the way a headline is written, without bothering to think that the actual conduct isn’t particularly egregious. The case may have been a loser, but it was not worthy of spilling all the resulting venom.

Update: On her attorneys’ website is this message about the case and the desire to get the medical bills paid:

“From the start, this was a case was about one thing: getting medical bills paid by homeowner’s insurance. Our client was never looking for money from her nephew or his family. It was about the insurance industry and being forced to sue to get medical bills paid. She suffered a horrific injury. She had two surgeries and is potentially facing a third. Prior to the trial, the insurance company offered her one dollar. Unfortunately, due to Connecticut law, the homeowner’s insurance company could not be identified as the defendant.”

“Our client was very reluctant to pursue this case, but in the end she had no choice but to sue the minor defendant directly to get her bills paid. She didn’t want to do this anymore than anyone else would.” But her hand was forced by the insurance company. We are disappointed in the outcome, but we understand the verdict. Our client is being attacked on social media. Our client has been through enough.”

Updated x2: These are examples of what Twitter has to offer.  Remember, this is suit is essentially about whether homeowner’s insurance will pay the medicals. The first from Joshua Carrasquillo of Lowell Massachusetts:JoshuaCarrasquillo
And the second from Brady Ricci of Vail, CO and Los Angeles:BradyRicci

And this is from Jack Marshall, who says he actually teaches ethics and has a blog called Ethics Alarms (coded “no follow“):

What’s going on is that Aunt Jennifer is pure hellspawn, a mysteriously animated pile of human excrement that embodies the worst of humanity.

This is what happens when people elect to post stuff on the web based on an initial news report that was, shall we say, very selective on what it chose to report.

Update x3: This site is getting quite a bit of traffic, most likely from many who never knew it existed. So let me answer a question some of you may have: Yes, I know what it’s like to be on the receiving end of lawsuits, and they weren’t nearly as benign as this run-of-the-mill kind: On Suing and Being Sued

Update x4: Why did this little suit get national attention? Because of the way the original author wrote it — designed for clickbait, not accuracy. See: The Media Hit Job on the Evil Aunt


October 29th, 2010

New York Judge Holds 4 Year Old Can Be Sued in Bike Accident

It’s all over the news right now: The story of a 4 year old child racing her bike with training wheels down a Manhattan sidewalk, who hits 87 year old Claire Menagh, who falls, breaks her hip, and dies three weeks later. The story was first reported in the New York Law Journal yesterday (sub required) and in today’s New York Times.

And the essence of the story is this: The mother who was watching her was sued, as was the child. And Justice Paul Wooten has ruled, while the suit is still in its beginning stage, that the case may proceed.

Since the story has now gone viral (it was at the top of Yahoo’s news page), I won’t bother giving a recap, but if you Google the news for “Claire Menagh” you’ll see what’s going on. (Same too with blogs.)

So I’ll cut to the chase: The lawsuit won’t be about taking away the kid’s future Tooth Fairy money or training wheels, it will be about the homeowners’ insurance policy and the extent to which it covers the mother who was watching the child and/or the child.

So this is the law on “negligent supervision” in New York that will, when all the lawyer-talking is done, be read to the jury and govern the ultimate outcome of the case (strictly from a legal perspective) from the perspective of parental negligence. This comes from the Pattern Jury Instructions for New York (PJI 2:261), and is the general language that would then get tailored to the facts of the particular case:

PJI 2:261 Vicarious Responsibility—Family Relationship—Liability of Parent for Tort of Child—Failure to Restrain

A parent is not responsible for the act of (his, her) child, but is responsible for (his, her) own failure to use reasonable care to restrain the child from so viciously conducting (himself, herself) as to (intentionally harm, create an unreasonable risk of harm to) others, provided the parent has knowledge of the child’s propensity toward such conduct. Reasonable care means that degree of care that a reasonably prudent parent would use under the same circumstances. Propensity toward vicious conduct means a habitual tendency to do an act that might endanger the person or property of others.

If you find that the infant defendant habitually assaulted and beat up others, that (defendant-parent) had knowledge of the propensity to do so, and that (defendant-parent) failed to use reasonable care to restrain the infant defendant, you will find that (defendant-parent) was negligent. If, however, you find that the infant defendant did not habitually assault others, or that though (he, she) did, (defendant-parent) did not have knowledge of that fact, or that(defendant-parent) did use such care as a reasonably prudent parent would under the circumstances to restrain the infant, you will find that (defendant-parent) was not negligent.

The comments in the PJI reference a similar case of a child riding on a sidewalk, back in 1937: Steinberg v. Cauchois. The jury found for the plaintiffs but the appellate court tossed the verdict on the particular facts of that case (“The parent is not liable, merely by reason of his or her relationship, for the torts of the child.”). The court then lists 5 categories of potential liability…and the 5th one seems to govern here (though #3 is also possible, depending on the “known propensities” of the child):

There are situations in which the parent may be held liable:

(1) Where the relationship of master and servant exists and the child is acting within the scope of his authority accorded by the parent;

(2) where a parent is negligent in intrusting to the child an instrument which, because of its nature, use, and purpose, is so dangerous as to constitute, in the hands of the child, an unreasonable risk to others;

(3) where a parent is negligent in intrusting to the child an instrumentality which, though not necessarily a dangerous thing of itself, is likely to be put to a dangerous use because of the known propensities of the child;

(4) where the parent’s negligence consists entirely of his failure reasonably to restrain the child from vicious conduct imperilling others, when the parent has knowledge of the child’s propensity toward such conduct; and

(5) where the parent participates in the child’s tortious act by consenting to it or by ratifying it later and accepting the fruits.

Does the underlying suit have merit? Only the facts will tell, and this case hasn’t even gone through discovery yet. If the parent was permitting her child to race down the sidewalk, then she may well be found to consenting to the conduct.

But this case clearly has raised some uncomfortable issues for many with respect to the concept of a 4-year old being sued. Regardless of where you stand on that, the underlying law that is set forth above is likely the crux of the legal matter regarding the parent being potentially vicariously liable for the conduct of the child.


Around the blogosphere we go for various opinions and rants:

The Negligent 4-Year-Old (Volokh @ Volokh)

4-Year-Old Speed RAcer Gets Sued (Mystel @ Above the Law)

4-Year-Old Not Too Young to Get Sued, Manhattan Judge Rules (Jones @ WSJ Law Blog)

About that four-year-old sued for negligence… (J.DeVoyThe Legal Satyricon)