Notes from a litigious society

Erik Kain

Erik writes about video games at Forbes and politics at Mother Jones. He's the contributor of The League though he hasn't written much here lately. He can be found occasionally composing 140 character cultural analysis on Twitter.

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18 Responses

  1. North says:

    While we’re on this subject what batshit crazy old woman sues a 4 year old? Oh wait… New York.Report

  2. Lee says:

    The woman didn’t sue. She broke her hip, had surgery and died shortly thereafter. Her estate is suing.

    How should we deal with situations like these? I’m really not being snarky, I’m curious as to what you think the appropriate approach would be. Kids will be kids, but I don’t think anyone thinks it’s fine for them to run into octogenerians. Should the estate have sued the parents instead?Report

    • Trumwill in reply to Lee says:

      @Lee, sometimes I think you have to simply accept that bad things happen. If the parents were known to look the other way when their kid is misbehaving then maybe you take action. Otherwise, to some extent you approach it as a force of nature that kids often are.Report

      • Lee in reply to Trumwill says:


        Fair enough, and I think I would be more bothered had there already been a judgment in the matter. I guess I am curious as to whether anyone sees this as something the parents should be liable for, perhaps not in a strictly legal way, but in that reckless behavior by their children is something that is their responsibility in the same way that a dog getting loose and attacking somebody might be. Which isn’t to say that children and dogs are morally equivalent, but that if we don’t hold children accountable for their actions because they aren’t what we would consider ‘reasoned’ beings, we should have to be more vigilant as to the consequences of their actions in the same way as homeowners with their pets.

        I sometimes teach kids of that age and while I also find the idea of suing a 4-year old laughable, I also know that if one is biking at a high speed at me I can get out of the way. I guess it’s hard to assign legal liability here, so I’m wondering if there’s recourse at all.Report

      • Michael Cain in reply to Trumwill says:

        @Trumwill, I think of it in terms of reasonable expectations. Which expectation is more reasonable: (1) an 87-year-old woman, believing that other users of a public sidewalk will avoid her, or (2) the parents, who believe that all other users of the sidewalk will be able to evade the racing children? Speaking as a parent, I feel strongly that in this situation, the blame would almost certainly be mine, and there would be consequences.

        It might also be worth noting that most of the “public” spaces in an urban area are not child-friendly; this is one of the reasons for the enduring attraction of the suburbs for parents with small children.Report

        • Trumwill in reply to Michael Cain says:

          @Michael Cain, I’m less opposed to suing the parents, though I think that there ought to be demonstrable negligence involved. “You had the kid and failed to exercise complete control over their behavior” doesn’t really fly with me. It’s not unlike saying “you’re the one that chose to have a kid” which I don’t think is a socially healthy response (though it’s not an illogical one, in the sense that I am more sympathetic to that line of reasoning when it comes to pets).Report

    • in reply to Lee says:

      @Lee, I think the state suing the parents would definitely have been a more sane approach. Perhaps I don’t want to be held responsible for a reckless 14 year old. But certainly a 4 year old is my responsibility.

      In which case, let the estate sue me, and prove that my behavior was somehow negligent. Otherwise, if a jury decides it was an innocent mistake outside my foresight, my parental responsibility, and the child’s limited awareness, so be it.

      Put my child on the stand, I dare them to cross examine the pre-schooler.Report

    • in reply to Lee says:


  3. Steven Donegal says:

    They did sue the parents and the kids. The judge’s ruling makes sense in a procedural way. Even if the parents are successful in arguing that they weren’t negligent in supervising, there still may be liability, which will probably bring an insurance policy into play. ED, you tend to get outraged by the most pedestrian things.Report

    • @Steven Donegal, That’s right – I’m OUTRAGED!!!

      Actually, I really find the judges statements hilarious. I don’t think much will come of it. And my sarcasm is hardly ‘outrage’ but if you like to think of it that way, that’s fine too.Report

      • Lee in reply to E.D. Kain says:

        @E.D. Kain,

        As a point of clarification, I’d like to ask if you do think that this makes kids less likely to engage in kid-type activities, or if that was entirely bluster. And if so, is there a way to ensure that something like this is less likely to happen and/or address it when it does?Report

  4. Mike Schilling says:

    Seems to me that the estate worse off having to sue the child rather than being able to transfer the negligence claim to the mother.Report

  5. Ryan Davidson says:

    This is Torts 101 stuff, and the judge is obviously correct in terms of both jurisprudence and precedent.

    The judge did not rule that the children are liable. He merely ruled that, since they are over the age of four, they have the capacity for negligence. When/if this goes to trial, they will be held to the standard of a reasonably prudent four-year-old. So all the concerns about children that young not being terribly cautious will all be aired; finding that a four-year old acted negligently is going to be a pretty tough road to hoe.

    The Volokh Conspiracy has a decent discussion.Report

    • Scott in reply to Ryan Davidson says:

      @Ryan Davidson,

      Very good explanation. Hopefully E.D. will read it and understand. If not there is always night law school.Report

    • Trumwill in reply to Ryan Davidson says:

      @Ryan Davidson, thanks for the link to Volokh. I think that I am in agreement with him that the minimum bar ought to be set higher. The behavioral consistency just isn’t there at that age.

      This strikes me mostly as an attempt for nuisance money in the event that they cannot demonstrate negligence on the part of the parents.Report

      • E.D. Kain in reply to Trumwill says:

        @Trumwill, I agree. Certainly I can see what Volokh is saying, and I probably did read more into this article than I needed to. However, I do think it’s a bit absurd to rule that a 4 year old should be held in any way accountable for riding their bike and accidentally running into an old woman. The parents I can see holding accountable, but again – as Trumwill has pointed out, and as common sense would dictate, it’s not always possible to keep a perfect leash on small children, and unless we ban children from biking altogether this sort of thing is bound to happen from time to time.Report

        • Aaron in reply to E.D. Kain says:

          @E.D. Kain, in law school we do study torts, but the class isn’t called “Torts 101”. It’s usually branded as a 500 level class called “Torts”. And in that class we discuss things like this, not just from the standpoint of what the law is and how it’s evolving, but in terms of why the law is evolving in a particular direction and whether or not that’s good public policy. In my opinion, assuming they were relevant to the lecture, your comments would have been welcome in any reasonably led torts class.

          If you look at the history of tort law in this country, it’s not a static history. It’s full of interesting twists and trends, and significant differences remain between states. Steven Donegal touches on what may be the most significant factor in expanding the tort liability of ordinary individuals (and children) – insurance coverage. As it has become more likely that people will be insured, it seems that the resistance to holding ordinary people responsible for their negligence (whether at the legislative or judicial level) has declined. It’s reasonable to debate whether or not that’s a “good thing”.

          It’s also fair to say that there’s an arbitrariness in drawing a bright line, “children under the age of X cannot, as a matter of law, be found negligent”, or “if you contributed in any way to your own injury you cannot hold any other party liable.” Such rules may keep people out of court, arguably rendering our society “less litigious”, but at what point are you shifting responsibility for the cost of injury from those best positioned to prevent it to those injured by their negligence?Report