By Francis M. Smith
When you pursue a personal injury claim of any kind, the insurance company representing the negligent party responsible for your injuries will look for any possible defense against your claim that might reduce the amount they have to pay out in damages. One of the more common defenses insurance companies attempt is to suggest that the injured person was partly to blame for causing their own injuries. New Jersey is one of the many states that has adopted a comparative negligence law, under which the maximum value of the injury damages an injured plaintiff may collect is reduced in proportion to the degree to which that plaintiff is culpable for their own injuries. Demonstrating that an injured person shares the blame for their accident generally requires the insurance company to prove that the injured victim was negligent in some way. But when a child is the injured party, the issue of injury negligence becomes more complicated.
It should be obvious that children do not have the same level of experience, sound judgment, and physical or mental capability that an adult possesses, and therefore it would be unreasonable to hold a child to the same expectations of responsible conduct used to identify negligence in adults. At the same time, however, children are not animals, and society does expect some level of age-appropriate careful behavior from its younger citizens. Still, the ways in which injury negligence on the part of a child is adjudicated are complex.
As a point of law, no child under the age of 7 years can be considered negligent; at that age, a child is assumed not to have the maturity to be expected to meet reasonable standards of careful behavior – one cannot be negligent if they do not have the mental capacity to be responsible. As such, if a child younger than 7 years is injured in an accident and a claim for compensation is pursued, the injured child him- or herself is considered not to bear any blame for causing the damages, regardless of said child's actual conduct.
Beyond the age of 7, children are considered to be legally capable of negligence, but the standards of behavior to which their conduct is compared vary. A seven-year-old child is not able to meet the same level of responsibility as an adult – or, for that matter, as a twelve-year-old child. Child development and growth is a gradual process of slowly advancing physical, intellectual, and emotional abilities, and as a child becomes capable of more, they are expected to conduct themselves according to higher expectations of good judgment and reasonable care. However, not all children develop at the same pace, and some hit certain milestones earlier or later than others – without even considering whether the child has special needs, or is gifted.
Adult negligence is measured against the “ordinary care” expected of an average adult, but in many ways there is no such thing as an “average child.” Thus, the standard used to determine whether a child has acted negligently must be much more specific, to take into account the vagaries of child development and opportunities outside the child's control. When compiling an “average child” to use as a yardstick in an injury negligence case, factors including the child's age, maturity, intelligence, experience, and special training must be taken into consideration. This helps to ensure that, for instance, an 11-year-old with excellent grades who volunteers as a peer tutor and has four years' experience in mountain biking and an 8-year-old who still struggles with reading and has been diagnosed with ADHD are not evaluated by the same standard of behavior if they both suffer bicycle accidents as a result of another's negligence. Failing special proofs of a child's capacity or incapacity to understand danger and how to react, a judge in such a trial will instruct the jury to consider the childs'd behavior compared to another child of that same age.
If the insurance company in your child's injury negligence case attempts to argue that your child bears some responsibility for his or her own injury due to negligent behavior, it can sometimes be difficult to counter this argument – either practically, or emotionally. No one wants to go into a courtroom and say that no, their child is not as mature, intellectually advanced, or responsible as another party asserts they are. It's natural to be proud of our children's accomplishments and place less emphasis on areas where they are weaker (even while we encourage them to improve in those areas). But when pursuing an injury negligence claim for your child's injuries, it's critical to ensure that any question of your child's own negligent behavior is considered in light of a fair and accurate assessment of the child's capacity for responsible conduct. The amount of compensation your child is able to collect through their injury claim – and thus their medical treatment – may be substantially influenced by a court's (or jury's) opinion on the degree of responsible behavior your child should have been capable of in the circumstances that led to the accident. If involved i such a case, ask your personal attorney to explain how the proofs will be presented- he or she may need more information about your child to properly present the case.
If you or a loved one have been injured in a serious accident, please contact me or call me at 908-233-5800 for a free consultation.