This is another one of those things that makes you wonder WTF is going on out there in the world:
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 months later.
Her estate sued the children and their mothers, claiming they had acted negligently during the accident. In a response, Juliet’s lawyer, James P. Tyrie, argued that the girl was not “engaged in an adult activity” at the time of the accident — “She was riding her bicycle with training wheels under the supervision of her mother” — and was too young to be held liable for negligence.
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.
This is why the world hates lawyers.
El Cid
Finally.
A judge not willing to surrender to the pre-K lobby.
4tehlulz
The estate is worse than the lawyer.
Capri Sun-Bagger
Careful John, half your audience are
overtitled and overpaid technical specialistslawyers.Paul in KY
I would have thought the parents would be the ones liable in this situation, not the kid or kids.
Moses2317
I agree that this is an absolutely ridiculous decision. But keep in mind that no lawyer has a case without a client who is willing to bring the case, so it really isn’t fair to place all the blame on lawyers when ridiculous sounding claims are brought.
Winning Progressive
Capri Sun-Bagger
FYWP.
Violet
So if she had only been three years old instead of four, then she wouldn’t have been old enough to be sued? WTF?
jacy
If I could sue people for being idiots, I’d be rich.
Tim
Wow. How the hell is the mother not neglible and liable for allowing her child to ride a bike on a NYC sidewalk?
The old lady DIED for god’s sake.
The mother was in charge, the mother did a shitty job, and should be held accountable. I have no problem with this. If they have to sue the kid to get to the mom, fine with me.
Capri Sun-Bagger
Moses2317: Where’d you get your JD?
;-)
If you really want to steam with absolute contempt, read the comments section for that article. Apparently, since bicycle riding is not allowed on sidewalks where, admittedly, tragic accidents like this could happen, four year old girls should be riding either on streets or in the middle of the bike lanes at parks. Nothing bad will happen then!
Ryan
Sounds like the kids were negligent for not putting the old lady in a home. If being knocked into by a 4-year old results in your death, you aren’t long for this world.
Ed Marshall
@Tim:
Maybe there is something I don’t know about New York sidewalks (which is probable since I’ve only been there once), but seriously, it’s negligence to let your kid ride a bike there?
FlipYrWhig
If you were the family, wouldn’t you prefer to have a child found liable than a parent? After all, what assets does the child have that might be seized to compensate the victim’s damages?
Roger Moore
@Shorter Moses2317:
I’ve been saying essentially the same thing for quite a while. Another way I like to say it is “Behind every sleazy lawyer, there’s a sleazy client.”
bobbo
Activist judges!
Culture of Truth
but seriously, it’s negligence to let your kid ride a bike there?
Maybe, maybe not. It hasn’t been decided yet.
Capri Sun-Bagger
I will acknowledge that in some jurisdictions, a bicycle is considered a motor vehicle and is not permitted on sidewalks, but really? 4yrs11mos1week?
catclub
The best Mother’s day card:
“Thanks for the mammaries.”
MattR
@Ed Marshall: Generally speaking, it is illegal to ride a bike or rollerskate on the sidewalks of NYC if you are going faster than pedestrian traffic.
jacy
@Tim:
Seriously?
You could just as easily ask what was the woman’s family doing letting an 87-year-old walk around on a New York City sidewalk?
Maybe we should all live in big hamster exercise balls so nothing bad would ever, ever happen to anybody.
General Stuck
The entire world is having a nervous breakdown, and I suspect the unholy alliance of Sarah Palin and Twitter is to blame.
Martin
@Paul in KY: The kids have more earnings potential to garnish.
@Tim: Yes, I cannot fathom the depths of the parents irresponsibility for letting their looting toddlers ride a bike on a public sidewalk for which they have paid no taxes? Why that old lady has literally millions of times more right to be there!
Capri Sun-Bagger
OTOH, it sound like the kids got a good career as a courier ahead of her.
licensed to kill time
Pretty much a great title, John Cole!
Paul in KY
@Martin: Good point. Hadn’t thought of that.
eemom
ah, a little light lawyer bashing to vary the “we’re all fucked” posts.
As far as reasons to hate lawyers, this case is pretty lame — but go ahead, we’ll take one for the team.
crack
This is retarded. So if a 4 year old racing out of control knocked down a toddler and the toddler died you guys would be upset if the parent of the toddler sued? Christ, someone died here. Negligence implies lack of intent. Just because an unintended bad thing happens doesn’t mean the aggrieved party shouldn’t be able to be made whole.
eemom
@General Stuck:
lolz. And it appears Mr. Cole is leading the charge.
Legalize
I smell a new NY bar exam question!
Culture of Truth
After Halloween this girl is going loads of assets in the form of candy. The court will probably garnish at least one baby ruth and put it in escrow.
asiangrrlMN
Methinks this is more why the world hates judges. This is fucking ridiculous.
@crack: Yes, I would. It would be tragic and horrible, but it’s a fucking accident. No one is going to be made whole by dragging a lawsuit of a four-year old through court. It’s ridiculous.
Dennis SGMM
@Tim:
Those young tearabouts should be tried as adults and sentenced to life in an ass-pounding state prison.
I might be a little more sympathetic if it was the victim who brought suit. The victim’s estate is looking to convert a dead person into cash.
Culture of Truth
“Your honor, I request a two-hour recess for the defendant’s naptime.”
Adam Lang
@Ryan:
I assume you’re serious about that. But it’s seriously ignorant.
My grandmother, at age 70, was hit by a little kid on a bicycle. (Nobody witnessed it, and she didn’t remember it, but the police reconstructed it from tire tracks on her clothing.) She fell and slammed her face against a curb. Blinded in one eye, dozens of stitches, serious concussion, nerve damage. After she recovered (which took six months) she continued to live self-sufficiently for another 20 years. At the time, the doctor remarked that she was very lucky: he’d seen a similar accident cause brain death in a person half her age.
Big effects do not have to have big causes. I know of at least one person who was killed by a drunken bicyclist, in the town where I grew up. He swerved to avoid the bicyclist, lost control, and hit a tree at 50+ mph. I’m sure the same thing has happened with squirrels.
So yeah. Lots of things can kill you. Whoever you are.
Roger Moore
I’ll note that this doesn’t necessarily mean that the children were negligent. It appears that their lawyers can still argue that they’re too young to be considered negligent, but that argument isn’t considered automatically true as a matter of law. The plaintiffs lawyers will still have a chance to rebut it, but I’d guess they’ll have an uphill battle.
eemom
@crack:
oh yes — winning a bunch of money (assuming the kid’s family has it) is totally going to make the 87 year old lady’s survivors “whole” for her death.
Since everyone here is being ridiculous anyway, why WASN’T someone looking after her on the goddamn sidewalk, if she was that frail?
ETA: also too, note that the parents ARE also being sued.
KJbrooklyn
In NYC it is legal for children under the age of 14 to ride on the sidewalk. I have had cops tell me to let my 12 year old, who I was riding with (and who is a very competent rider) ride on the sidewalk when we were riding in a bike lane.
Culture of Truth
Yes, estates can sue. I hope the families of the workers sue BP and I for one won’t cry for the oil company.
Nerull
@Capri Sun-Bagger:
There is often an age exemption for laws like that.
scav
Only LLCs and entities like BP and Halliburton are able to kill without threat of repercussion. Seriously, forget baptism, go for incorporation days after birth.
MattR
Seems a bit crazy that this 4 year old can be sued. But I assume that a jury will have the common sense to realize that an almost 5 year old doesn’t have the capacity to be negligent. The mother on the other hand does seem like a reasonable target if it can be shown that she was aware of exactly what her child was doing and gave permission to do it.
I will note that the article is a pretty crappy example of journalism. The opening paragraph while technically true is pretty misleading and makes it seem as if the judge went back to find a case from 1928 to support his decision, rather than it being a case that the defense attorney cited as a reason to throw out the case (which the judge said did not apply to this case)
(EDIT: It would also have been nice to know if the woman’s death was even tangentially related to this accident.)
Pixie79
It seems that people think the old lady had it coming, being all old and walking down the street like that! She was 87 years old afterall, I mean she was just going to die anyways right?
This is stupid. To me that article isn’t about why the world hates lawyers but rather, why I hate parents who don’t look after their kids. The lady D-I-E-D…it may not be a big deal to you, but that was someone’s mom/grand-ma. Like crack said, if a stupid kid accidentally killed another stupid kid and the family sued, I don’t think John would have posted.
stuckinred
Ya’ll get in some dopey fucking arguments.
Martin
@crack:
I wonder where in our society we went wrong and determined that someone had to pay in response to every bad thing that happens?
We’re all going to die. Someone doesn’t need to cut a check for punitive damages for every single lost soul.
MikeJ
I wonder what the old lady’s hospital bills cost.
A friend of mine from Engerland was telling me that when a car hit him on his bike, he never once thought of suing the driver and thought the accident was just one of those unfortunate things that happen, even though my friend wasn’t at fault.
Of course he lived in a civilized country where he got seen right away and never received a bill for the hospital, the doctor, the xrays, the cast or the drugs.
I’d bet only way the family of the old lady in this case is going to avoid having *their* salaries garnished and their assets seized to pay the hospital is to go after the kids.
someguy
@Roger Moore:
Dosn’t explain bogus qui tam cases though.
August J. Pollak
So the kids were doing something that laws specifically said you shouldn’t do, and the result was they killed a person?
Yes, what I am very upset about here is the excessive scope of a damages suit. Really.
Talk about literally burying the lede.
Culture of Truth
I might be a little more sympathetic if it was the victim who brought suit.
So as long as you kill someone it’s all good?
VincentN
It should be pointed out that the judge is simply saying that it should be the jury who determines whether or not the child was being negligent and he can’t simply dismiss the case as a matter of law because apparently the existing rules only hold children under 4 to be incapable of negligence as a matter of law.
Yes, it sucks that the case will have to go all the way to trial (unless there’s a settlement by the insurance company or whatever) just so a jury will (probably) say it’s ridiculous to hold this child responsible but it seems unfair to blame the judge for not being activist.
Zifnab
Let’s be clear on something. If I was the caretaker of an 87-year old parent, and she got run over by ANYBODY – 4 year old or 104 year old – I’d be pissed enough to sue. Particularly when I got slapped with a six or seven figure medical bill.
Perhaps we’d all be less trigger happy on our lawsuits if we weren’t afraid one bad accident would lead to total bankruptcy.
That said, could the 4-year-old declare bankruptcy to escape civil damages? It’s not like she owns vast amounts of property the estate could seize. And her credit would be shot till she was 11, which is just about the age your parents have to start explaining that no you can’t have a credit card.
Amanda in the South Bay
Apparently the moral of the story is: if you have elderly parents/grandparents, do not under any circumstances put them in any assisted living home or anything of the sort. Keep them out in the world so they can get accidentally hurt, then call the lawyer$.
Ryan
@Pixie79:
The old lady died from falling down. She fell down because she was knocked into by a 30-lb kid. It could just as easily have been an escaped dog or a stiff wind. In other words, her life was obviously extremely fragile. She might have lived a longer, but probably less enjoyable life in a home somewhere; that was her choice.
kc
Gee, who would have thought BJ’s commenters would be so gung ho for tort reform.
Martin
@August J. Pollak:
Uh, no. They were doing something that they are specifically allowed to do by law. My city has the same ordinances – bikes are legal on sidewalks. In my city, bikes even ridden by adults are legal on sidewalks.
Zifnab
@MikeJ: This.
Nerull
@August J. Pollak:
The kids where doing something the law says people over 15 shouldn’t do. Bit of a difference.
Violet
The lesson to take from this is for parents to make sure their kids are on a leash or handcuffed or otherwise under control at all times so they can’t do something unexpected, like not look where they’re going on their kiddie bike and hit someone on the sidewalk.
I’m sure when the plaintiffs in the estate were four years old they never did anything sudden or unexpected that had the potential to put an older person in jeopardy. Kids that age are known for obeying their parents, sitting still, and never making a sudden or unanticipated move.
Nylund
@Tim:
The NYC law:
The children were under 12 and I bet their wheels were under 26 inches as well.
Do you really think 4 year olds on bikes with training wheels should be fighting for control of a lane with an NYC taxi driver? Letting little kids bike on the sidewalk seems very reasonable to me and the law agrees.
It was an accident and someone died. Its very sad, but accidents do happen.
August J. Pollak
No, this, by that I mean outrage-threads, is why I hate shitty, deceptive news articles.
MTiffany
It should hate negligent parents more. How crappy a parent do you have to be that you can’t get your kids to figure out they shouldn’t run into people with their bikes, training wheels or no?
Legalize
@Martin:
I know you’re making a point, but society doesn’t reward people for every bad thing that happens to them. Courts award people damages for injuries they sustained because of the culpable conduct of another. In this case the allegations are negligence. If the kid doesn’t have the capacity to (a) even have a standard of care applied to her, or (b) violate a standard of care rising to the level of negligence, the victim’s estate probably won’t get an award. If this were a case of an adult who killed a woman by accident, the estate would have a case for negligence and no one would blink an eye. It’s just the age of the kid that makes this case so odd.
I doubt punitives would be awarded in any event in this case.
cyntax
Wait, I get that the parents may have been negligent, but they aren’t trying to get the case against themselves dismissed, just the one against their kids:
And it really seems weird to be suing the children in addition to the parents.
Martin
@Zifnab:
She’s 87. She’s on Medicare. She might have some deductibles to cover, but she’s far from uninsured.
Mark S.
It would seem to me the case is against the mother. Is there some legal advantage to including the 4 year old in the suit?
And I don’t see the philosophical argument against letting an estate sue. Who else can bring a wrongful death suit?
kc
@Amanda in the South Bay:
Yeah, Amanda, I’m sure that’s exactly what the elderly lady’s relatives had in mind.
This is the shittiest thread I’ve ever seen on this site.
Culture of Truth
Gee, who would have thought BJ’s commenters would be so gung ho for tort reform.
Who’d have thought so many were eyewitnesses to the accident?
John Cole
Holy loads of post hoc ergo proptor hoc. Nowhere in the story does it say she died from injuries sustained from the accident. It just says she died three months after the accident.
I hate to break it to you, but people who are 87 routinely just DIE.
Pixie79
Yeah but she wasn’t knocked over by the wind, she was knocked down by a kid who shouldn’t have been riding the bike.
My g-pa slipped and hit his head and died. Maybe if he were younger, he would have lived. Just because a person is older or more frail doesn’t mean that it just doesn’t matter if a person causes their death, either intentionally or not. If a kid is riding a bike (and breaking the law in doing so) and the end result is someone’s death, it MATTERS. It’s not a difficult concept.
Southern Beale
Well it’s easy for us to judge but what’s that scene from The Shining where the kid on the tricycle barrels down the hallway after some hapless old sap? Is that The Shining? I mean, it’s possible this kid was a bad seed, a real Demon Spawn, Damien-in-the-making.
It always annoys me when people talk about that famous McDonald’s hot coffee case as an example of tort law run amok. Hell, that woman suffered severe burns.
…. now, on another topic: Today I saw a bumper sticker (at WHOLE FOODS, of all places!) that read: “Life, Liberty & The Pursuit of Anyone Who Gets In The Way.” Of course, there was also an NRA sticker in the corner of the window.
I just wanted to ask this person WHAT is so wrong with getting along with your neighbors? WHO is trying to take your life and liberty away from you? WHY do you feel the need to live in fear? That is the kind of shit that makes me nuts.
Southern Beale
Well it’s easy for us to judge but what’s that scene from The Shining where the kid on the tricycle barrels down the hallway after some hapless old sap? Is that The Shining? I mean, it’s possible this kid was a bad seed, a real Demon Spawn, Damien-in-the-making.
It always annoys me when people talk about that famous McDonald’s hot coffee case as an example of tort law run amok. Hell, that woman suffered severe burns.
…. now, on another topic: Today I saw a bumper sticker (at WHOLE FOODS, of all places!) that read: “Life, Liberty & The Pursuit of Anyone Who Gets In The Way.” Of course, there was also an NRA sticker in the corner of the window.
I just wanted to ask this person WHAT is so wrong with getting along with your neighbors? WHO is trying to take your life and liberty away from you? WHY do you feel the need to live in fear? That is the kind of shit that makes me nuts.
soonergrunt
@jacy:
HELL YEAH! That would be so freaking cool!
Dennis SGMM
@Culture of Truth:
If the suit was for the purpose of making the victim whole, or paying her medical bills and making her as comfortable as possible, okay. Looking forward, will the suit keep any other elderly people from being hit by children riding bicycles? Is it necessary to prevent this child in particular from mowing down any other senior citizens? Not so much.
MattR
@cyntax: That quote is noting that one of the two families (mother and son) is not trying to dismiss any of the charges including those against the child.
@Ryan:
Can anyone say this for certain?
Adding to my complaints about the article, it really doesn’t do much to describe the aftermath. I can see the elderly lady and her estate having different reactions depending on how the parents reacted to their children running her over. I had a friend who ended up suing after having his nose broken by a backswing on a mini-golf course largely because the other side was completely unrepentant and was not willing to help out at all with the out of pocket costs.
Zuzu's Petals
@Tim:
I agree. Someone died because of this accident.
I don’t see what the judge did except apply existing common law standards…or rather, refuse to change existing common law standards.
If the case goes to court, the court will ask if the child (or children) acted as a reasonable, prudent child of the same age would act. Presumably after being told by the “supervising” parent not to run into people.
Nerull
@Pixie79:
Again, they were not breaking the law.
MattR
@Nerull:
Are you breaking the law if you are running down a sidewalk? Are you acting negligently if you run over someone while doing it?
(EDIT: oops. just reread Pixie79’s comment you were replying to and realize that s/he made a specific reference to breaking the law. sorry)
soonergrunt
@Mark S.:
Many homeowner’s insurance policies include riders for negligence torts against minor children.
Nerull
@MattR:
Is a 4 year old? Do they deserve to have their life ruined for doing so?
August J. Pollak
Sure. If assets are applied to the child (i.e. trust funds, etc.) then they don’t count as belonging to the parent. O.J. Simpson often avoided payments to the Goldmans after the civil suit verdict by having compensation made in payments to his children’s college funds, etc.
In other words, it would actually be perfectly reasonable to include a child as a defendant if you thought they might have assets now or in the future. It’s just unique because the child happens to be very young. And the only reason we’re getting Rachel-Ray’s-Scarf level outrage is because the story was written as if a lawsuit was filed directly against a 4-year old, insert talk-show-jokes about getting 30% of her lollipops, etc. here. I love how “oh and her parents as well” just made it to the third graf of the article.
People shouldn’t be angry at lawyers just because they don’t understand how the law works.
Legalize
@Nerull:
But the law in this case prescribes the standard of care in the negligence case – “don’t do X.” Typically, the kid’s alleged negligence would be imputed to the parents, which is why it’s silly for the kid to even be in the case.
The parents tried to get the kid dismissed because if the kid is dismissed, theoretically there can be no negligent act imputed to the parents
MattR
@Nerull: My point was that the legality of the action is not the sole determination for if it was negligent. (And please see my edit to the previous comment)
General Stuck
@John Cole:
I agree it was an accident, but the plaintiffs attorneys will argue the high rate of mortality for seniors who break hips.
I guess this is our daily libertarian thread, but I agree with stuckinred, dopey argument.
Angry Black Lady
@eemom: I’ll stand with you and take some of the hits.
Maybe you can represent me when I go on a stabbing spree on this flight. I can’t stand armrest hoggers!
Is 1 pm too early to drink? I mean, it’s 4 pm where I am headed!
stuckinred
@soonergrunt: Or at least WITH big hamsters with exercise balls!
Catsy
@Ed Marshall:
Seriously, WTF? It’s awful that this woman died, but it was a tragic accident, not negligence. Accidents happen.
The average child that young is fundamentally incapable of understanding consequences and cause-and-effect to the degree necessary in order to be negligent or not. It’s like accusing a five-year-old of breach of contract.
As for the parents, there is nothing inherently negligent about allowing kids to ride their bikes on a sidewalk, and it’s utterly unreasonable to expect them to have constant physical control over their children.
The fact that this case went forward at all borders on judicial malpractice. It is a classic example of applying the letter of the law without the burden of actually having to think too much about the facts of the case.
John Bird
The world hates lawyers because non-lawyers pursue lawsuits that might have merit but should be left alone, and people blame the advocate instead of the plaintiff?
I . . . I guess that’s more or less correct.
stuckinred
Stooo
pid
FlipYrWhig
@cyntax:
Is it? IANAL but it seems like without including the children too, the parents could just say, “Hey, it wasn’t my fault, it was my kids’ fault,” which is basically true, but then there would be no one to find liable who could actually pay.
Martin
@Legalize:
I’m not arguing that. I’m arguing the two commenters here that hinged their entire argument on ‘what’s wrong with you people, someone DIED!’ are effectively asserting that bad events deserve a day in court and some degree of renumeration. There’s no room in these arguments for an accident, which is all this is. Unless mom is going to be physically holding the kids handlebars every moment to ensure that they don’t swerve into an old lady, then we need to allow room for accidents. And how you hold a 4 year old responsible, who in all likelihood doesn’t know how to read, let alone understand their legal responsibilities as they apply to riding a bike on a sidewalk in NYC, is beyond me.
Understand that in NYC, the sidewalk isn’t some sacred place reserved for pedestrians. For the majority of people, it’s their front and back yard. It’s literally the only place to ride a bike, and kids are there riding their bikes all the time. It’s not like riding on the sidewalk in East Jesus, Kansas.
And we all know full well that culpable conduct of another can get stretched to all extremes to where you then get suits against the bike manufacturer for not having an old-lady bumper on it, and so on. If we want to play all of these events out in the courts, that’s fine, but isn’t there also a personal responsibility of individuals to not put forth completely asinine lawsuits? Sue the parents, sure. And that’s being done. Sue the 4 year-olds? Fuck – the whole mess should be thrown out of court just for violating the 28th Amendment – Thou shalt not be a douchebag at the expense of the taxpayers.
Culture of Truth
If the suit was for the purpose of making the victim whole
Not sure what you mean by whole – like if the kid had clipped the side mirror off her car, maybe her parents pay for a new one?
Her hip was broken and by some accounts she lost more than a mirror, she lost her life. Then there is pain and suffering.
Without arguing the merits of this particular case, its seems odd to talk about less sympathy for the suit because the victim is dead and not severely injured, and as far as incentives go, it seems perverse to support a legal policy which grants a clean slate as long as a person or corporation’s negligence is so great the other person died.
stuckinred
@John Bird: It’s like this shit with congress, everyone hates it except for THEIR rep.
MTiffany
@Legalize:
The rare salient point of the matter. The whole reason to sue the negligent actor is to prove a negligent act.
August J. Pollak
@Catsy:
Both you and I know absolutely none of the facts of this case. You know what a news article said about a lawsuit.
Ryan
@MattR:
Well maybe she died from inhalation.
v.v
Martin
@FlipYrWhig: That’d never go anywhere. It’s been established every way to sunday that parents and legal guardians are responsible until you are emancipated. There’s a reason why emancipation is a legal process – and this is it.
balconesfault`
@MattR:
OK – I want to see the 5 year old with training wheels moving faster than the average 28 year old guy training for the NYC marathon.
Gina
@VincentN: Yep. But it does make a flashy headline to get all hepped up on outrage adrenaline. Boring legal procedure, feh. Layer hate, WOOHOO!
/married to a gummint lawyer
MattR
@Martin:
It’s kinda funny. I was gonna make a comment about NYC sidewalks but with the exact opposite conclusion about how they are busy areas not meant for racing bikes.
@Ryan:
Maybe it was pancreatic cancer. There is no way to tell from the article.
Roger Moore
@MattR:
I thought that was clear from the article. She was badly hurt in the accident- her hip was broken and she required surgery- and she died three months later. People that age are usually frail and have a hard time recovering from serious accidents. If they have a severe accident, die a relatively short while later, and no other cause of death is mentioned, it’s safe to conclude that the accident was the ultimate cause of death.
anthrosciguy
Interesting how many people are complaining about the lawyer who is trying to sue, and not complaining about the lawyer who is trying to get his clients off scot-free after they killed someone due to their reckless actions.
Martin
@August J. Pollak: Can you explain to us how a 4 year old is expected to reason through the various consequences of riding their bike on the sidewalk?
FlipYrWhig
@Martin: Are parents and guardians responsible for your–I hope I have this right–tortious acts? It feels like there are a couple of different flavors of “responsibility” here.
balconesfault`
@Southern Beale:
That might actually be the CEO’s car…
Culture of Truth
The most famous tort / personal injury suit of all is a suit against a child.
So yes kids can be sued. I’m skeptical about one against a 4 yr old….
And yes there is a rather substantial body of law built around “accidents.”
MattR
@Ryan:
Maybe it was pancreatic cancer. There is no way to tell from the article.
cyntax
@FlipYrWhig:
Maybe, but I would’ve thought that parents’ responsibility for their children means they can be sued without bringing suit against the children. Or maybe I just don’t know how this works.
Zuzu's Petals
@Zuzu’s Petals:
resonable, prudent = reasonably prudent
Sorry.
Dennis SGMM
@Culture of Truth:
By making the victim whole I meant that they should be on the hook to pay for whatever medical help or therapy or nursing that the victim needed to aid in her recovery.
I am not saying that once someone is deceased that the liability of those who caused death is or should be over. I am saying that there’s a fuck-ton of difference between the heirs and assigns of the victims of the BP oil rig disaster suing the adults who made the decisions who led up to that disaster and suing a four-year-old and her parents for an accident. Anyone who asserts that a parent should have control of their minor child at all times doesn’t have children.
FlipYrWhig
@cyntax: I definitely don’t know, which is why I’m asking.
Gina
@Angry Black Lady: For these sort of questions, I go with WWDDD (What Would Don Draper Do) as a guide.
John Bird
@stuckinred:
I’m just surprised that people still think attorneys are in a job market where they can pass up paid work for moral reasons. That hasn’t been the case since around 2005.
Xenos
@Mark S.:
If there is any ambiguity in the caselaw, it is very much to the disadvantage of plaintiff’s lawyer to fail to the include the child. The sort of people who hire lawyers to pursue cases like this are also the sort of people who like to sue their lawyers for malpractice.
MTiffany
@Catsy:
Which is why parents are generally held responsible for their children’s conduct.
Generally speaking minors are legally incapable of forming a contract, which is why they are called “minors”.
But it is entirely reasonable to expect that before a parent inflicts their spawn upon the world that they have taught the child that there they are not to hit people – be it with their own bodies or their bicycles.
TooManyJens
@Tim:
They are also suing the kids’ moms. The parents didn’t challenge that, but tried to get the kid off the suit because seriously, WTF.
Zuzu's Petals
@Ryan:
The kids were RACING their bikes. Hardly the same as a stiff wind.
Martin
@MattR:
They aren’t racing bikes. They’re 4 year olds on bikes with training wheels. Have you ever seen a pair of 4 year-olds doing that? Odds are they weigh all of 40 pounds each and that includes the bike. A medium sized dog is more dangerous in a ballistic sense, but nobody would sue the fucking dog. They’d sue the owner.
MattR
@Roger Moore: That might seem logical, but could you say that beyond a reasonable doubt. Especially when you consider that the initial version of the article said she died three weeks later, not three months. IMO, it is just as likely that the reporter thought she died three weeks later and just assumed it was all related. One would think if it was the direct result of the accident that the article would explicitly state that since it would be a very important part of the story.
@Martin: They don’t sue the dog because it is a dog, not because of the size and speed of the animal.
Gina
@Gina: Oy. That’s lawyer, not layer. Though…
John Bird
@August J. Pollak:
I’m assuming this is a ruling against summary judgment? It’s all I can gather from the stupid article.
And what that means, I presume, is that maybe not even the judge knows all the facts of the case at this point.
Culture of Truth
This case has some interesting paralells to Vosburg v. Putney, for example.
The Other Chuck
If the parents made their kids ride their bikes in the street, that wouldn’t be negligent?
The laws against bikes on the sidewalks pertain, usually quite specifically, to adult size bikes. I don’t know of a single place that makes kids ride their bikes in the street.
I can’t really get filled with rage. Only sadness at a society that’s so basically disconnected that they see each other with such basic hostility. I wish there was enough water on the earth to make the sea levels rise enough to drown us all the fuck out.
slag
See…now these are issues I can’t get exercised about. People do stupid things sometimes. Like letting their 4 year-olds run down old ladies. Like suing said 4 year-olds. It’s all bad. But none of it seems vicious. Just dumb. If I got upset at everything in life I thought was dumb, I’d be upset all of the time.
Torture, bombing, even shooting marine life in the face…those things are worthy of outrage.
This? This doesn’t even rate a healthy shrug of the shoulders.
Martin
@Xenos: Yeah, but the judge doesn’t need to play along in liability tag here.
Parrotlover77
@Tim and @crack – word.
every once in a while i see some article about some child doing something horrible (intentionally or not) and then a bunch of parents start sounding off about how nobody should be to blme.
look suing a child is weird, but if the law does not allow a claim to be made to the parent (which is the morally correct thing to do) then action against the child may be the only recourse.
and i cant believe anybody here is trodding out the conservative “granny shouldnt have been out there” argument. christ 4yos on bikes can be little speed demons. the woman DIED. how is there any dispute in this case?
this is not “oops sorry maam didnt mean to drip ice cream on you.” this is 20mph 60lb object hitting and killing an elderly woman.
geg6
@Martin:
The biggest problem with your argument is that you leave out something quite pertinent in the article:
Racing. Not just riding, but racing. And the mothers allowed them to do it. Personally, I probably wouldn’t sue a little kid, but I’d be suing the shit out those mothers, for sure.
Martin
@The Other Chuck:
I think in NYC that would be illegal, actually.
The Other Chuck
The complaint claims they were racing. Of course that would be the complaint. The claim could simply be bullshit. How fast can a four year old even race a bike?
balconesfault`
I think there should be restitution in the sum of $10K for every year that the accident removed from the woman’s actuarial predicted lifespan.
Which means that the plaintiffs owe the defendents about $70K.
Having raised kids who were once 5 and impulsive … and having an 87 year old mom who could easily end up in the same situation … my only conclusion is that the plaintiffs are major assholes, making sure that to the full extent possible the 4+ year old is scarred for life by knowing that her actions killed someone.
If the same happened to my mom, I’d be busy trying to help the 4 year old deal with the shock she must be feeling.
John Bird
@Culture of Truth:
Two girls, engaged in the usual boyish sports . . .
Looking over that decision again, I wonder if the judge would have come down the same way if a girl kicked another girl on the playground.
eric
I apologize for not reading all the comments, so if anyone said this, my bad.
but the plaintiff’s lawyer is AN IDIOT. Suing the daughter gets you nothing….the source of funds is the same (possibly a homeowners policy, maybe not), and you get to stand in front of the jury in opening argument asking them to find a 4 year old liable for the death. that will be really unattractive to the jury. moron
MTiffany
@Ryan:
Whether you’re long for this world or not, it is a crime to speed you along…
Gina
@MattR: When an elderly person gets such a traumatic injury, requiring hospitalization, that opens up all kinds of neat prospects for death – infection, blood clots, etc. It’s not totally unreasonable or reactionary to attribute her death to the hip break.
Here’s an article looking at all the fun ways hip fractures can totally fuck up what’s left of an elderly person’s life. http://nursing-homes.aplaceformom.com/articles/hip-fractures-in-the-elderly/
It’s more a legal procedural thing than a big statement on punishing the pre-K set. I’ve also had enough dealings with feral children (whose parents are standing by lamely) causing physical injuries to innocent bystanders that I applauded this, and hope that the attention might sway a few of these idiots to rein their progeny in a bit more.
balconesfault`
@Parrotlover77:
Seriously?
A 4 year old would have to be dropped out of a 3rd story window to hit 20 mph on a bike with training wheels.
General Stuck
It’s a terrible thing, the sight of two 4 year olds, wildly racing trikes down a sidewalk. The wind whipping their finely grained mops, the sound, the smell, that gasoline smell of burning rubber as the training wheels grind off chunks of cement. And the laughter, the laughter is the worst, hideous, menacing, and feigning innocence of small brains with large appetites for destruction.
Now I’m going to walk the dog, whilst the lawyers parse the living shit out of perfectly simple words.
Capri Sun-Bagger
Martin: I think you meant ‘remuneration’.
geg6
@Martin:
My sister just got a broken hip, three breaks in her shoulder, and a shattered hand from her dog pulling too hard on the leash. If two four-year-olds on bicycles (the training wheels are irrelevant), racing as fast as their little legs can go, would run into her, she’d be dead, too. And she’s not 87. The mothers should never allowed them to be racing the bikes. If the only way to get the mothers would be to sue the kid, you can bet your life, I’d advise my niece and BIL to sue the kid if this was my sister.
Martin
@Parrotlover77:
@geg6:
Do any of you people have kids? 4 year-olds are still in car seats – not boosters, full-tilt car seats. A 4 year old racing on a bike has less kinetic energy than I do walking to my mailbox. They couldn’t hit 20 miles per hour if you strapped rockets to their back, and the average weight of a 4 year old is 35 pounds. They move at a medium trot. Any parent who has ever taught their kid to ride without the training wheels knows you can easily keep up with them when they’re pedaling as if their life depended on it. These bikes have no gears, so they are extremely speed constrained.
Martin
@Parrotlover77:
@geg6:
Do any of you people have kids? 4 year-olds are still in car seats – not boosters, full-tilt car seats. A 4 year old racing on a bike has less kinetic energy than I do walking to my mailbox. They couldn’t hit 20 miles per hour if you strapped rockets to their back, and the average weight of a 4 year old is 35 pounds. They move at a medium trot. Any parent who has ever taught their kid to ride without the training wheels knows you can easily keep up with them when they’re pedaling as if their life depended on it. These bikes have no gears, so they are extremely speed constrained.
Culture of Truth
Dennis SGMM,
Anyone who asserts that a parent should have control of their minor child at all times doesn’t have children.
That’s fine, but that’s very different from what you said above.
Also, I’m confused. If you can’t contol a 4 year old, and the child isn’t responsible, then why would they be “on the hook to pay for whatever medical help or therapy or nursing” ?
MattR
@Gina:
I know all this. But before we accuse these 4 year olds of causing her death it would be nice to have actual confirmation, not just reasonable conjecture.
eemom
@stuckinred:
actually I am finding this thread increasingly hilarious. Who knew there were so many Socratic inquisitors on this blog?
Xenos
@Martin: Domesticated animals are an entirely different body of law. You are outside issues of negligence and instead are dealing with variations of strict liability depending how hazardous the animal is. Walking a JRT, for example, could be as ultrahazardous as a donkey loaded with dynamite. You would not believe the convoluted and messy stories that make up the case law for this subject.
The Moar You Know
Whatever. I really can’t be bothered to give a shit about anyone involved in this case; they are all to blame: the psycho Nazi judge, the sleazy lawyers, the irresponsible city, the negligent bike maker, the oblivious, stone cold deaf and now stone cold dead old lady, the estate of rich kids just looking for another
welfarecash handout so they can continue to live a life of leisure, those obnoxious screaming kids, and their drug-addicted, stoned, tranquilizer-gobbling, can’t-be-bothered-to-deal parents.Seems the best course of action is to load up every party to this case who’s not already dead onto a plane and then crash it into the middle of the ocean.
Adam Collyer
@Legalize:
Maybe, maybe not. For instance, maybe a 5-year old child is incapable of negligent behavior. But it could be negligent for a parent to ignore the behavior of a child that poses a risk to others. That’s still oversimplifying the issue, but it’s a start.
I guess I’m not sure what there is in this situation to get riled up about. A woman was struck by a child on a bike, suffered injuries, and died 3 months later. Her estate is probably looking for compensation for her medical expenses, not “punitive damages” against the child. The article doesn’t say that the accident didn’t cause the woman’s death because we can’t say that as a legal certainty. Maybe it was a partial or full cause, maybe it wasn’t. Both sides will submit evidence, a judge or jury will decide the facts, and we’ll see what happens.
As far as the judge goes, I don’t know what people really wanted him to do. The law is made up of rules because it provides some consistency for standards of behavior. Traditionally, it appears as though children under 4 are incapable of negligence as a matter of law. For children over the age of 4, it becomes a jury question. Maybe a Balloon Juice commenter will be on the jury and can make a decision as to whether this child acted as a child of similar age and experience would have acted (assuming that’s the standard of care used). Then, it matters. But this is why we have a legal system – it’s a matter of settling disputes. An 87-year old woman died and it’s possibly someone’s fault, so we let the two sides have an opportunity to argue about it.
The Moar You Know
Whatever. I really can’t be bothered to give a shit about anyone involved in this case; they are all to blame: the psycho Nazi judge, the sleazy lawyers, the irresponsible city, the negligent bike maker, the oblivious, stone cold deaf and now stone cold dead old lady, the estate of rich kids just looking for another
welfarecashhandoutsettlement so they can continue to live a life of leisure, those obnoxious screaming kids, and their drug-addicted, stoned, tranquilizer-gobbling, can’t-be-bothered-to-deal parents.Seems the best course of action is to load up every party to this case who’s not already dead onto a plane and then crash it into the middle of the ocean.
JPL
You can’t race on training wheels. Elderly people who suffer from a hip injury tend to die withing twelve months. The woman died after three months which is not unusual.
IMO, the parents are responsible and for the family to sue the four year is plain evil.
John Bird
@General Stuck:
Cute, but, putting aside the “just shy of five” part of the ruling, are you really saying that parents can’t act negligently toward others by what they let their little kids do?
There are a lot of things that a 4-year-old could do on a bike with training wheels while his or her parents watch that would qualify as negligence.
This may be one of them, depending on how the case plays out, and that’s all the judge is saying.
Jonathan
@Martin:
Technically, in NYC, adult bike riders are not allowed on the sidewalks. However, children 12 and under may ride on the sidewalks though.
http://bikingrules.org/rules/rulesoftheroad#ac1976
Martin
@Capri Sun-Bagger: I mean all kinds of things that get lost in my sometimes random selection of words. Heh.
eric
@John Bird: the issue (and I am just guessing) may be whether the negligent supervision claim is not covered under an insurance policy, while the negligent act itself is…..suing the kid makes no sense otherwise
Emma
@Capri Sun-Bagger: She hit someone hard enough to knock her over, so yes, I’d say so.
Rock
@MTiffany:
They are young kids that lost control of their bikes. I wouldn’t assume the parents are crappy because this accident happened. It’s not like it takes uncommonly bad parenting to have a kid who accidentally hits someone with their bike. Nothing in article would cause me to assume the kids didn’t know they shouldn’t hit people.
You can argue the kids were too young to out riding, and the parents are negligent because of that. But even that doesn’t make them bad parents in my mind. What parent would think that their 4-year old on training wheels would be able to gravely injure someone? I don’t think the parents were lax for letting their kids ride on the sidewalk…the fact that it’s legal and common practice tells you something about the behavior. Given the info in the story, I don’t see the need for a punitive lawsuit. If the goal is to recoup hospital expenses, that would sound more reasonable to me. But including the children in the suit seems like a punitive measure to me.
I feel bad for both families. But given what’s in the article, it seems like an awful accident that happened during a pretty commonly accepted activity.
Emma
@John Bird: Yup.
Suffern Ace
Some people say that the old lady was frail and would have died soon anyway. Others say that the parents should have been more careful. Could the child be accountable? Maybe, maybe not. Facts in the case remain cloudy, poorly reported, since the only thing that was determined was whether or not the child could be named as a defendant.
Oh, all of these issues, and so few facts are available. If only we had some sort of institution where we could take disagreements about justice and determine what those facts were and come to some sort of decision about this matter.
John Bird
@eric:
But, but . . . clearly they are suing the child out of PURE EVIL. Lawyers are involved!
eric
@John Bird: Lawyers cant be evil cause we have no hearts. ;)
Zuzu's Petals
@John Bird:
It was a ruling (pdf) on a pre-answer motion to dismiss. The judge was only addressing a very narrow question: whether a child that age is, as a matter of law, incapable of negligence.
Martin
@geg6: You’re effectively arguing that children in NYC shouldn’t be allowed to ride bikes.
Seriously. I grew up there. If any time a kid runs into a person on the sidewalk on a bike there should be a lawsuit, then no parent in the city should ever take on the liability of letting their kid ride a bike.
As I said, the sidewalk in NYC isn’t a reserved place. For the vast majority of people there, it is the only outdoor public space that children have. In most of the city there are no yards you could argue children should be playing in. There are no bike lanes to restrict them to. There are parks, but the parks are surprisingly uncommon and are every bit as congested as the sidewalk, so the outcome is the same.
MattR
@Rock:
I have to disagree with this part. I think if you took a poll of Manhattan residents they would say that allowing your 4 year old to race his bike on the sidewalk is not acceptable. The acceptable behavior is to escort your 4 year old on his bike at a reasonable speed to a park where s/he can race to their heart’s content. It is just the sad reality of raising your children in Manhattan.
@Suffern Ace: Ha!!
@Martin: Again we have vastly different impressions of what is normal Manhattan behavior. I lived there for about 5 years but it was as an adult. And I did not see people racing bikes on the sidewalks. I saw parents taking taking their kids to parks to play.
MTiffany
@Martin:
Okay, so how about I bring over a 35-lb dumbell to your house, hold it at eye-level above your foot, and then let go? The weight would barely be traveling 10 mph by the time it hit your foot. So how bad could it be?
eemom
@eric:
OR maybe the kid is the beneficiary of a large trust fund.
or she is a tiny genius who just displaced Zuckerberg as the world’s youngest billionaire.
Whatever it is, there HAS to be a reason for suing the kid. Plaintiffs’ lawyers may be slimy but they’re not stupid — at least not that stupid, cuz if they were they’d starve.
John Bird
@Zuzu’s Petals:
Thanks. The Times is just precious about this.
. . . yeah, obviously . . .
trollhattan
@kc:
fxd
Danke, I be here all veek. Tip you vaitress.
balconesfault
The parents clearly screwed up by not taking their 4 year olds to the doctors immediately to get some diagnoses of injuries suffered in the accident, so that they could be counter-suing the estate right now for the old lady stepping in front of them without looking.
Gina
@MattR: The judge in this case wasn’t ruling on the facts of whether or not it was the 4 year old who did kill the woman, just whether or not current NY law said that she could be named as a defendent in the suit. And, the law currently does, as this kid was almost 5.
So, he said that it could move to trial. At trial is where all the details come in. At this stage, it wouldn’t be unreasonable to take the accident and the subsequent death into consideration as far as moving it forward, given the commonly understood issues with mortality after such an injury.
Just Some Fuckhead
Meh, we should all be so lucky to be killed at the age of 87.
Zuzu's Petals
@Adam Collyer:
I notice the court document (linked @157) says it’s a personal injury suit, not a wrongful death suit.
MTiffany
@Rock:
Precisely the crappy kind that the world should hate more than lawyers. If you had a four year old would you hand them a loaded gun or a box of matches and then say “Go play.” ?
For there to be a negligent act, there must be a negligent actor, whether or not that actor is legally liable (or capable of appreciating the consequences of their actions). Includeing the child in the lawsuit is the only way to prove that the negligent act occured, and then recover from the responsible party — the parents. Since parents are responsible for their children’s acts.
eric
@eemom: i would not bet the trust would be accessible to a judgment.
Plus, the “should have known” component is gonna be real…hard. It has to be something with getting an insurance carrier to the table that is afraid of a wrongful death case, though the damages will be fairly low given her age, so i would not expect the sharpest of the sharp to bring the case. :)
Capri Sun-Bagger
Emma: If you would notice that I was referring to making a small child ride in NYC streets, which others have pointed out, could be considered negligent.
That being said, if you have or will have children, be sure to tell them to play in traffic.
Martin: True, but I think in this case you just meant ‘gettin’ paid’.
General Stuck
@John Bird: What I am saying, sometimes an accident is just an accident, and I neither care nor oppose the case going to trial. I do think listing the children as defendents is fairly pathetic, but the parents may or may not hold some liability depending on the facts. If the primary focus of the lawsuit is wrongful death, then I think that is a real stretch, but I’ve worked around lawyers enough to know they can make flowers out of angel dust in no time flat. There is a big pill to swallow here that the outcome was not in large part due to the advanced age of the victim, and I think she was a victim of a freak accident. And the amount of damage the parents should be liable for. should only be the amount of physical damage that can possibly occur from a 4 year old on a tricycle with training wheels. The age and frailty of the woman is not their fault, or shouldn’t be imo.
Martin
@MTiffany: Yeah, and if I shoot a 35 pound needle into your eyeball at 10 mph it will have considerably different effects. If you are going to get into a physics argument with a physicist, don’t go off and change the parameters of the model and expect not to get caught on it.
MattR
@Gina: But that is not my point. Comments like the one right after yours are what I am responding to.
@eric: What if she was not medicare eligible for some reason?
@Martin: Hmm, which is more similar to a 4 year old child running into you on a bike – having a 35 lb weight dropped on your foot at a speed near 10 mph or having a 35 lb needle shot at your eye at 10 mph?
eric
@Zuzu’s Petals: that makes no sense either….most of her medicals would not be recoverable (medicare paid), though maybe medicare has subrogation rights, but that does not help the estate, unless there are bills not paid, i guess; likely no lost wages…just makes no sense to me
Zuzu's Petals
@eric:
Yes, I was guessing insurance reasons too…because family members, ie kids, are generally covered. But for a homeowner’s policy to apply, wouldn’t the accident have had to occurred on the premises?
Martin
@Capri Sun-Bagger: Yes, that’s all I meant.
MTiffany
@Martin: As soon as that happens I’ll let you know.
geg6
@Martin:
Ummm, no I’m not at all arguing that kids can’t ride their bikes on the sidewalks. I’m saying they shouldn’t be racing on their bikes on the sidewalk, that the mothers there should have stopped them from even starting it, and that if suing the kids is the only way to get to the negligent parents, then I’d sue the little fuckers.
You really don’t have very good reading comprehension. I just told you the damage a tug on the leash my sister’s dog did to her. That is minor compared to what would happen if two children on bicycles would have run into her at full speed. And the idea that a 40 pound child, with the extra weight of the bicycle, barreling into someone, regardless of age, is so negligible that we should consider it no big deal is sick. Just sick.
And no, I don’t have kids. But my sisters do and I never saw them have an ounce of real trouble keeping their 4-year-olds under control. But then, it has been my experience that very few parents ever do anything to keep their demon seeds under control in any circumstances.
Gina
@Gina: @MattR: Gotcha. Multi-tasking and trying to manage my own semi-feral offspring as we get ready to head out for the evening :-)
Rock
@balconesfault`: I want to thank you for posting a comment that makes me think my reaction to the story isn’t confined to just me.
eric
@Zuzu’s Petals: here is the thing…i was in court the other day and there was a LONG argument by the insurance carrier about exclusions under the policy involving a golf cart crash. I cannot remember the precise parameters, but it did involve whether the direct negligence claim and the negligent supervision claim where both covered by the policy, but it also involved (i think) a “motor vehicle” exclusion of some sort. After the first 30 minutes i stopped paying attention, so i cant say for certain,
Zuzu's Petals
@eric:
I can think of one pretty large expense that is not covered by Medicare or most health insurance policies: custodial care. And if a person is laid up for several months in a nursing home or at home with a caregiver, that cost adds up big time.
Personally, I think it’s pointless to speculate on the issue.
MTiffany
@Zuzu’s Petals:
Did you forget where you’re commenting?
Omnes Omnibus
The linked article states that the woman died three months later of unrelated causes (emphasis added).
This decision was on a motion to dismiss by the defense on the grounds that the children were too young to be found negligent as a matter of law. Deciding such a motion requires a judge to construe the facts in favor of the party that did not file the motion. So things like whether or not the kids were “racing” are presumed to go in the plaintiff’s favor. The kids would be presumed to be super responsible 4 year olds, etc. Now, if this goes to trial the plaintiff would have to prove all of these things. The plaintiff would have to show, not that a theoretical 4 y/o could be negligent under certain circumstances, but that these 4 y/os were negligent under these circumstances.
This is one of the reasons lawyers hate people. You read a couple of lines in a brief article and go off half cocked. None of know the facts of the case. This is why we have trials. The kids could have been behaving horribly, the 87 y/o could have stepped out in front of them giving the no time to react, or the kids could have been doing exactly what their mothers told them to do and racing as fast as they could with their eyes closed, in which case they probably would not be liable but the mothers would. We don’t know from what is in the article. Fuck.
eric
@Zuzu’s Petals: i agree…i just dont see the benefits of adding this particular potential tort feasor.
I mean, wouldnt you have to take the kid’s dep and cross examine the child on the stand? i cannot imagine that would go well.
“Isn’t it true that you stopped looking where you were going because you heard the Imagination Movers through a window and turned away for an extended period of time?”
MattR
@Omnes Omnibus:
That was an edit to the article. Good to know though and glad you pointed it out.
Zuzu's Petals
@eric:
Somehow the first part of my question got cut off, and my iPad won’t let me edit. So anyway…
We don’t know whther her medical expenses were all covered by Medicare or even private insurance. If it were my parent, I sure wouldn’t limit myself to only the surgeon or physical therapist or facility that took Medicare or that was in the provider group. For whatever reason, it could very well be that there were legitimate medical and other costs not reimbursable by public or private insurance.
Zuzu's Petals
@eric:
Somehow the first part of my answer got cut off, and my iPad won’t let me edit. So anyway…
We don’t know whther her medical expenses were all covered by Medicare or even private insurance. If it were my parent, I sure wouldn’t limit myself to only the surgeon or physical therapist or facility that took Medicare or that was in the provider group. For whatever reason, it could very well be that there were legitimate medical and other costs not reimbursable by public or private insurance.
Zuzu's Petals
@MTiffany:
Twue, twue.
Capri Sun-Bagger
Martin: FWIW, I agree with your many, fine points, including that a 4 y.o. hitting 10mph would be a natural for the Olympics. 5-6 mph would be more realistic, which is about a light jog.
Rock
@MTiffany:
So, letting your 4 year-old ride their bike on the sidewalk is like handing them a loaded gun? I think that’s ridiculous. So, we’ll just disagree.
eric
@Rock: happiness is a warm gun; a child brings happiness; ergo…….a child is a warm gun.
Zuzu's Petals
@MTiffany:
Good points.
dcdl
@Martin: @Violet:
Thank you for some sanity.
Have you ever seen kids on training wheels? Their bikes tip from one wheel to another and they don’t go that fast and two four year olds together are normally loud. Accidents happen. Life happens.
Jacob Davies
Roger Moore: People that age are usually frail and have a hard time recovering from serious accidents. If they have a severe accident, die a relatively short while later, and no other cause of death is mentioned, it’s safe to conclude that the accident was the ultimate cause of death.
Er no. It’s safe to conclude that being really old was the ultimate cause of death and complications from an accident were the proximate cause of death, since an accident like that wouldn’t normally cause fatal complications 3 months later.
As for the lawsuit, whoever above said that it’s stupid because the jury won’t look kindly on suing a 4 year old has the right point. It’s stupid not just because it’s stupid but because it won’t work.
Bob the Mediocre
@MattR: No 4 year old child on training wheels is going to be traveling at 10 mph. Walking speed (i.e. 2 mph) is probably more likely.
MTiffany
@Rock:
I never said that, and anyone that would infer that as my meaning is a complete idiot, and anyone that would attempt to proffer that bullshit as my argument is a ridiculous a**hole.
Omnes Omnibus
@MattR: Even if that wasn’t originally in the article, the rest of my rant stands. People went nuts on both sides over the result of a procedural motion in a PI case. Also, as the plaintiff’s attorney, you include the kids because you include everyone who could possibly be remotely at fault in the case otherwise the defense argues that it was entirely the fault of the person who wasn’t sued.
eric
@MTiffany: no. that is not true. the culpability for negligent supervision does not require a negligent act. you are looking at the mental state of two different actors. (unless ny law is different that my locale). a lot of times the issue arises when the party directly doing the harming commits an intentional act which is not covered by insurance, so you look for someone negligent — the guy that hired or supervised.
ruemara
@Ed Marshall:
Not that I’ve ever seen in NYC. Fuck the estate, they’re idiots.
BobS
@Zuzu’s Petals: Exactly. Allowing the racing on a sidewalk shared with pedestrians is where the parents were negligent.
John D.
@MTiffany:
d=.5*a*t^2
Assuming eye level as 6 feet for nice round numbers.
6 ft=.5*(32 ft/s^2)*t^2
12 ft/(32 ft/s^2)=t^2
.375 s^2 = t^2
t=.612 s
v=a*t
v=(32 ft/s^2)*(.612s)=19.584 ft/s=13.36 MPH
Missing your target by 1/3 is usually a failing grade in these sorts of problems in intro physics class.
(For 10 MPH, eye level would have to be 3.4 feet or so.)
eric
@Omnes Omnibus: no, you do that only when the actual defendant has an incentive to point the finger at the empty chair and i pretty sure that mom is not gonna say it was all her kid’s fault. If she does, then that just begs the jury to find negligent supervision.
ThatLeftTurnInABQ
I can’t believe all of you are burying the lede on this story:
“Obama generation youngster asssassinates tea-party generation voter with mobile killing device just months before the crucial midterm elections.”
The critical legal issue is: who is really behind this – ACORN, or the New Black Panthers? Or BOTH !?
Omnes Omnibus
@John D.:
How tall was the old woman?
Zuzu's Petals
@Omnes Omnibus:
I’m guessing pneumonia.
All around great comment, though.
eemom
@Omnes Omnibus:
I am SO fucking stealing that.
Omnes Omnibus
@Zuzu’s Petals: Thank you, it would have benefitted from some proofreading though.
John D.
@Omnes Omnibus: No clue. Better question is “How tall is MTiffany?”.
Bob the Mediocre
@John D.: Not to mention that KE is proportional to V^2.
eric
@eemom: agreed –read the full facts behind the mcdonalds coffee case (if you have not already). that is one where people had NO clue what they were talking about in bashing the court.
Omnes Omnibus
@eemom: You are welcome to it.
Zuzu's Petals
@Omnes Omnibus:
Try commenting on an iPad, which won’t let you edit. Argggh…
Capri Sun-Bagger
Omnes Omnibus: People that lawyers hate go directly to heaven, whilst being a lawyer guarantees that you will return to the hellfires from whence you came.
OTOH, being eemom just guarantees that you are a pathetic, hateful suburbanite ‘pond-scum’.
MTiffany
@John D.:
Does that matter? Isn’t that “Changing the parameters of the model?” Or is it just “moving the goalpost?”
Angela
“If the same happened to my mom, I’d be busy trying to help the 4 year old deal with the shock she must be feeling. ” Thank you.
Mnemosyne
@MTiffany:
So shouldn’t the 4-year-old go to jail for negligent homicide?
Because that seems to be the direction it’s going here: the 4-year-old was responsible enough for her actions that she can be sued for them, so why not assign criminal responsibility and put her in juvenile detention because she did, after all, kill someone?
Margarita
Are you out of your damn mind? This is what insurance was invented for. Nobody’s trying to garnish a 4-year-old’s allowance or put a lien on their bouncy ball. The only one who would be protected by slamming the courthouse door shut would be the insurance company that should have long since resolved the claim. A woman was killed — won’t anyone think of poor AIG’s feelings? Another day, more corporatist propaganda. Nice.
JGabriel
John Cole:
Really? 215 posts, and NO ONE thought to link Richard Thompson:
?
C’mon, people.
.
Angela
@balconesfault`:
“If the same happened to my mom, I’d be busy trying to help the 4 year old deal with the shock she must be feeling. ”
Thank you.
eemom
@Capri Sun-Bagger:
GFY, juice box impersonator.
Omnes Omnibus
@Capri Sun-Bagger: You sound bitter. There are professional and unprofessional lawyers. Most litigators advocate for their clients in situations where the facts and the application of the law to those facts are in good faith dispute. Some will step beyond that. You will find similar situations with accountants, plumbers, and auto mechanics. I am sorry for whatever caused you to feel bitter about lawyers, but that is a cross you will have either carry or put down on your own.
Omnes Omnibus
@Capri Sun-Bagger: BTW the “from” in “from whence you came” is unnecessary.
ETA: Whence means “from where” or “from what place.” Use it correctly; you’ll seem smarter.
Zuzu's Petals
@eric:
PS:
I’ll bet family members had some lost wages.
MTiffany
@Mnemosyne:
That’s not what I’m trying to argue. I’m trying to get across the point that even if the child isn’t legally liable, the child is being sued so that the plaintiffs can prove the negligent act occured in the first place so they can recover from the responsible party, which in this case would the child’s parents.
Zuzu's Petals
@Martin:
They weren’t racing in the cul-de-sac or the park path. They were racing on a city sidewalk used by all sorts of pedestrians.
This didn’t happen in a vacuum; the parents “supervised” racing in a context that pretty obviously would present concerns to most reasonable people. Just my opinion.
MTiffany
@eric:
“Your kid broke my hip.” Make sense now?
monkeyboy
@The Other Chuck:
The kids were almost 5. Here is a You Tube vid of a 5 yo and 7 yo doing training wheel drifts.
General Stuck
@monkeyboy:
whole different thing on a crinkled sidewalk
Amanda in the South Bay
@kc:
So, just cause some dumbass southern Congressman spouts his mouth off about something called “tort reform” that automatically means that we, good progressives we are, should never criticize any lawsuit, anywhere?
monkeyboy
@General Stuck:
No difference in speed, though a crinkled sidewalk is probably more difficult to drift on.
Catsy
Capri Sun-Bagger
Omnes Omnibus: My OED says that while the from is redundant, it has been used since the 14th c., and is considered acceptable. Understand, will you, that language is routinelyaltered through usage. You’ve had several centuries, so try to keep up.
Sheesh, even irregardless is considered acceptable usage, despite what DougJ hurt fee fees.
Mnemosyne
@MTiffany:
The article says that the judge decided that a 4-year-old is capable of negligence and can be sued. If a 4-year-old is capable of negligence in a civil suit, then that 4-year-old should be able to be found criminally responsible as well, correct? If not, why not?
And some of the revulsion you’re seeing here is because courts in some states have decided that children as young as 7 years old are fully responsible for their actions and can be sent to prison for life. We’ve only just decided as a society that teenagers maybe shouldn’t get life without parole for armed robbery where no one was killed, so I don’t see why it’s strange for people to worry that this is yet another attempt to lower the age at which kids can be prosecuted for crimes.
Ella in New Mexico
As a critical care nurse, I promise you that at age 87, we’re ALL just one four year-old away from a broken hip, followed by:
orthopedic surgery leading to
anesthesia complications necessitating being intubated and placed on a ventilator followed by
ventilator acquired pneumonia leading to
pleural effusions necessitating chest tubes
which stresses old hearts causing cardiac dysrhthmias and congestive heart failure followed by
elevated kidney and liver enzymes from physical insult indicating acute kidney failure requiring temporary dialysis which always results in
low serum albumin and protein leading to slow wound healing and wound infection, and
causes extended hospitalization and inactivity leading to
pressures ulcers and deep vein thrombosis followed by pulmonary embolism which
can lead death from cardiac arrest or stroke—-
and that’s if something I listed before that doesn’t get you first.
Just sayin–I think the mom’s could have avoided this whole lawsuit by just setting up some orange flags or something to warn the old lady….
Omnes Omnibus
@Amanda in the South Bay: Actually, calls for tort reform tend to come from people read headlines or skim an article about legal matters and then jump to conclusions regarding what is going on. That is pretty much what many people commenting on this thread did. As a result, I think the reference to tort reform was apt.
Splitting Image
I think the question is whether the girl stepped on the old lady’s head when the bike collided with her. That would prove the old lady was at fault.
General Stuck
@monkeyboy:
I say big difference in speed, not only because the resistance difference between pot marked concrete and waxed linoleum but most city sidewalks have all sorts of heaves and generally uneven surfaces.
eemom
@Mnemosyne:
As OO and others have noted, the article is misleading as to what the judge actually decided. He did not decide that a 4 year old is capable of negligence, but rather than the conclusive presumption against finding negligence that applies to a younger child stops at age 4. If this ridiculous case God forbid were to go to trial, it would be open to the defendants to prove that the child was not, as a factual matter, capable of negligence.
Maybe through expert testimony from child behaviorists, to add yet another layer of expensive insanity to this exercise.
Mark S.
@Mnemosyne:
There’s a big difference between civil negligence and criminal negligence. For instance, if you cause a car accident (and you’re not drunk or something, just careless), you almost surely won’t be criminally liable.
eemom
@General Stuck:
speaking of races — howzabout we lawyers against you science types to see who can perpetuate this madness the longest?
Mnemosyne
@eemom:
Like I said, that’s why this seems like another step along the path of deciding that first graders are just as responsible for their actions as full-grown adults and should face the same penalties as adults for those actions. This seems vastly at odds with current science, and yet courts keep deciding that children are fully responsible for all of their actions at younger and younger ages.
monkeyboy
1) The law can be rather complex and depends upon legal definitions, not common sense definitions. It may be necessary in this case for the plaintiff’s side to establish ‘legal negligence’ so the other side can’t weasel out on a technicality.
2) Neither the plaintiff or defendant may want this lawsuit – in a different world the defendant might agree to give the plaintiff $30K for incurred medical expenses. In this world, both sides may have both medical and accident insurance which are supposed to pay for things. However an insurance company won’t pay its own money if it can sue to get somebody else to pay.
In other words the plaintiffs, defendants, and their lawyers may be reasonable people and this whole mess may be caused by the insurance companies.
General Stuck
@eemom:
You lawyers wouldn’t stand a chance. We got experiments, lots of experiments. All you have is, what is the meaning of is.
Mnemosyne
@Mark S.:
Here’s a snip from the article you linked to:
So my question is, will this 4-year-old be judged by how a “reasonable and prudent” 4-year-old would act, or is she going to be judged to the standard of how a “reasonable and prudent” adult would act, because those are two very different standards, and it seems insane to hold a 4-year-old to the same standard as a reasonable and prudent adult.
Omnes Omnibus
@Mnemosyne: I have concerns about the increasing tendency to find children as responsible for their actions as adults, especially, as you note, since science seems to be going the other direction. In this case, however, I don’t think that happened. It seems to me that the judge took a principle of New York law, that children under four are not capable of negligent behavior as a matter of law, and applied it. The child was nearly five, therefore the under four/no negligence rule did not apply. If it goes to trial, the standard that would be applied, would be was the child behaving as a reasonable and prudent four, almost five, year old child. The child would not be held to adult standards. Would a reasonable and prudent four year old get into a bike race with her friend and mow people down? Oh hells, yes.
General Stuck
deleted wrong thread
Omnes Omnibus
@General Stuck: Dude, we could go for weeks over the meaning of is. And then start in on the meaning of meaning.
Omnes Omnibus
@Mnemosyne: See my comment at 245. Short answer: 4 y/o judged as 4 y/o.
Mark S.
Goddamn FYWP. I’ll try one more time.
I’m pretty sure it would be a reasonable and prudent 4-year old:
And FYWP preemptively.
ETA: Third time’s a charm. Damn that was annoying.
TEL
@The Other Chuck: This! I don’t understand the amount of vitriol some of the commenters have about this. I mean, some of you are assuming that because a commenter thinks it’s crazy to sue a 4 year old, that same commenter thinks the woman deserved to die? Where’s the sense in that? And assuming the 4 year old deliberately hit the woman, or that her parents hadn’t told her not to hit people? I really don’t understand those assumptions. Do none of you have experience with children? Do you not realize that it’s quite possible that the child didn’t see the woman in time to stop?
It sounds like the lawsuit will go forward, but it doesn’t mean that the parents (or children) are bad people, or that they intended any harm, or that they weren’t being cautious. There simply isn’t enough information in that article to indicate one way or another any of these things.
Omnes Omnibus
@Mark S.: @Mnemosyne:
On the other side, a person could be held to a higher standard because of who they are. If you are a chemist, you might be held negligent for leaving stuff lying around that you knew or should have known was dangerous while an ordinary person would not because the ordinary person had no way of knowing the item was dangerous.
Mnemosyne
@Mark S.:
But that’s what we’re arguing about — it seems like the judge in this case decided that a 4-year-old is theoretically capable of civil negligence when most places peg the age at 7 years old. Four years old seems like a very, very low place to set the bar.
Omnes Omnibus
@Mnemosyne:The procedural posture of the decision matters here. Without going into a short course in civil procedure and trial practice, the situation is this: the court looks at the facts alleged in the pleadings and only those facts. The court then interprets those facts in the light most favorable to the party that did not file the motion, in this case it would be interpreted in favor of the plaintiff. Then the court applies the current legal standard. Now, if it gets to trial, all those arguments you are making are fair game, including the argument that science has proven the current legal standard to be wrong. Fundamentally, this was a hoop to jump through in the legal process and it does not mean that four year olds are considered responsible for their actions. It just means a personal injury case did not get tossed out because no four year old could be held responsible for her actions. Does this make sense, or have I gone overly lawyerly?
Mnemosyne
@Omnes Omnibus:
But according to the article, it was a matter of whether or not the two children should be removed as defendants while their parents remained, not whether the lawsuit should be dismissed altogether.
Like I said, given the direction the law has been moving over the past 15 years or so, it’s hard for me not to see this as all of a piece with courts deciding that 10-year-olds should get life without parole.
Omnes Omnibus
@Mnemosyne: Okay, change it to tossed out as to those defendants. I understand and sympathize with your concern. It is just that, in this particular situation, I think your worry is misplaced. If this goes to trial and the kids are found to be negligent, I would sign on to your worry. With motions to dismiss, judges have limited latitude for decision making; it really doesn’t mean much. I don’t know why, other than sensationalism, the NY Times bothered with a story about this decision.
Nellcote
The parents should counter sue the old lady for interfearing with their kids’ legal right of way.
Ruckus
Haven’t read every comment but it looks to me as if some here are looking at legal minutia instead of the big picture.
In NY a child of 5 can be found guilty of negligence, even if it is not at the same level of an adult but the masters of the universe get off with raises, bonuses and extra perks after raining down financial disaster on the rest of us.
Is this a great country or what?
Queensbridge
I know this area & ride my bike through it often, crossing the 59th St Bridge to either the East River or Central Park where there are actual bike paths these mothers should have taken their kids to. The sidewalks in this area are crowded with pedestrians, it is beyond irresponsible to have 2 kids riding bikes on these sidewalks. And it is one of the wealthiest zip codes in the US, and home to alot of people with a staggering sense of entitlement. This in NYC has become especially true of the “mothers” in general who formerly lived in the burbs but now believe the entire city should be child-centric. On subways they put their ginormous strollers right in front of the doors, wheel them right down already narrow & crowded sidewalks, block narrow store aisles. For urban mothers of this class — they’d probably berate the old lady for getting in the way of their precious little ones.
No question the mothers are liable and the estate should pursue them any way they can.
Omnes Omnibus
@Ruckus: If you want to go that route, fine. The sun will eventually burn out and everyone will die, so why are we worried about the banks?
Ruckus
@Omnes Omnibus:
Cause I’d rather that when my life was over, it hadn’t ended by starvation. And I’d take getting run over by a couple of 4 yr old bicycle hooligans at 87 over starvation as well.
chopper
jesus, this is stupid. as the child of a toddler, let me say that a 4 year old with training wheels is not the ballistic menace half of you are making it out as.
TuiMel
The NYT article has been updated to clarify that the Claire Menagh died of “unrelated causes.”
HyperIon
@chopper wrote :
oh, grow up! ;=)
monkeyboy
A question.
Say you are involved in an accident and you have insurance that is supposed to cover it:
Your insurance company may want to sue somebody to gain the money to pay your claim. In such a case the lawsuit is in your name but the insurance company pays the costs and provides the legal representation.
In such a case do the court documents of the lawsuit indicate that your insurance company forced you to be the plaintiff in order to pay your claim? e.g. are the plaintiffs listed as “(you) and (big insurance co.)”? Is it possible to tell which lawsuits were forced by insurance companies?
I know this question is rather late in the thread so no one may respond. I tried to Google up example of court documents but teh interwebs are too full of advice on how to get big money for your injury or how to get an insuranse settlement that I can find a starting point.
Emma
@chopper: Perhaps you haven’t walked on sidewalks recently? Then can knock a person down very easily.
Emma
@TEL: True, but this idea that children can do no wrong is out of control. If a child is smart enough to understand not to cross the street unless they see a walk sign, s/he is smart enough to know not to run into people. If none of the above, don’t let him/her ride his/her bike on a public sidewalk, stick to playgrounds.
Can you explain to me why on earth, when children run smack into people, mothers catch the eye of the person and mouth, “I’m sorry,” (if you’re lucky) instead of either just saying it or telling the child who ran into you to say it? Will children wilt if asked to take responsibility for their actions or watch where they are going? And if so, since when?
Emma
@Ella in New Mexico: Or maybe by teaching her child to watch where she is going when she is on a public sidewalk.
Rock
@MTiffany:
I know this thread is dead, but since you called me and idiot and an a**hole I just want to state that for the record you wrote:
Maybe I am an idiot a**hole but when I read that I see someone drawing an equivalence between letting a child play with a gun and riding a bike. Are you not claiming that the parents in this case did something equivalent to handing their kids guns? Because I don’t know how else to read that.
Triassic Sands
@John Cole:
Yeah, but dying after a broken hip isn’t uncommon for very old people.
I don’t know how you sort out a case like this, but I wouldn’t think it would be difficult to show that the accident and injuries contributed to her death. That would depend on her medical records, but if you look at actuarial tables an 87-year-old woman still has an average life expectancy of almost 6 years. If she had no other outstanding medical problems, then I’d think a competent lawyer could make a pretty good case for connecting the accident and death.
Wile E. Quixote
@Ryan:
Wow, are you trying to get a job on one of those “death panels” that Sarah Palin keeps talking about? You know she’s full of shit don’t you?
Tancrudo
@balconesfault`: Countersuit! The old woman was an accident waiting to happen. It was clearly negligence to let her out onto the sidewalk, where she could at any moment fall down upon an innocent bystander and die as a result, saddling them with years of emotional trauma. A reasonable and prudent person would never allow a doddering 87-year old wreck out alone to teeter about the sidewalks unpredictably. The parents of the children should sue the estate for the cost of all future psychological care required for their trauma in this matter. That’s two hours a week, two hundred bucks an hour, for the next 83 years. Three million, four hundred and fifty-two thousand, eight hundred dollars.
harlana
@monkeyboy: Only you would be listed as the plaintiff on the pleadings. As this case is very old, I have no idea whether there was such a thing as insurance coverage for something like this, but in today’s world, your analysis is completely correct and the estate would have sued the parent, I guess the parent’s homeowner’s insurance (?)
Margarita
@monkeyboy: You’re describing “subrogation”, and it depends on what state the lawsuit is filed in.
Tim
Over the last couple of years I’ve come to understand that perhaps John Cole’s biggest talent as a blogger is posting (trolling) links and glib statements that draw big crowds of commenters to the resulting outrage thread. Usually, these posts are short on facts and context, but long on emotional triggers and anger buttons.
I was sucked in again, so I bow to his genius, but I AM catching on, albeit slowly to the JC page click schtick.
chopper
@Emma:
i have and i do. sometimes in life you have to realize that when you step out onto the sidewalk in NYC you’re taking the chance of getting bumped into. i get bumped into about 50 times a day in new york. sometimes by kids. i get bumped into on the subway. i get bumped into on the stairs.
luckily i’m not old and frail enough to break a hip that way or it would have happened a thousand times over by now. either way it’s pretty stupid to sue a 4-year-old for bumping into you.
RobNYNY1957
The case followed well-settled law, and was decided correctly. It would have been malpractice on the part of the plaintiff’s attorney not to include the child who committed the allegedly negligent act. It is certainly the right thing for people to pay for the harm they cause.
CalD
Couldn’t the girl just declare bankruptcy if she loses, the way abortion clinic bombers do? And come to think of it, does this mean I could sue a fetus for inciting violence in that case?
Uriel
@General Stuck:
That is perhaps the finest thing I have read on the intertubes, ever.
Uriel
@Zuzu’s Petals:
Fixed it for you.