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How Young is Too Young to be Liable for Negligence?

Can Children Be Held Liable for Negligence?

Negligence can apply to some children
Can a young child be held liable for negligence?

A person is negligent when he owes another a duty and then breaches that duty. Negligence is the legal theory on which most personal injury cases are based. Over the years the question has arisen of whether young children can be negligent. This issue was again recently addressed.

In Nielsen v. Bell, Nielsen was babysitting a four-year-old boy who threw a rubber toy at her, striking her in the eye that previously received a cornea transplant. Nielsen consequently lost all vision in that eye and sued the boy’s parents for negligent supervision and the boy for negligence. Nielsen argued that Utah should not recognize a fixed age cutoff for negligence liability while the four-year-old defendant argued that the court has recognized that children under the age of five may not be found negligent. The district court granted summary judgment on the negligent supervision claim against the parents, but denied summary judgment on the negligence claim against the child because the court could not find as a matter of law that the boy was incapable of being negligent.

The Restatement (Third) of Torts states: “A child less than five years of age is incapable of negligence.” Restatement (Third) of Torts: Phys. & Emot. Harm § 10(b) (Am. Law Inst. 2010). The majority of jurisdictions support the idea of a minimum age cutoff, and several states have an age cutoff higher than age five. This court has never held that a child under seven may not be held liable for negligence, but it has recognized that there is an age at which a child is too immature and needs the court to know that he/she cannot be held responsible for the act.

On appeal, the Supreme Court of Utah adopted the restatement rule and reversed the district court’s order denying summary judgment and held that children under the age of five may not be held liable for negligence. The possible question of whether a child five-years-old or older can be negligent is reserved for the fact-finder, unless a court decides that no reasonable jury could disagree on the issue. Such a bright-line rule promotes important public policies and is justified by the advantages of uniformity, consistency, and efficiency.

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