In the medical field, there’s a common admonition: whether administering medicine or performing CPR, children are not small adults. From a risk management and litigation perspective, the same exact thing can be said.
Whenever children are riding zip lines, navigating adventure parks, enjoying playgrounds, or exploring dangerous areas where they should not be, they present unique risk management and litigation defense issues. This article discusses six such issues that affect the risk management approach regarding children: comparative negligence, parental responsibility, the attractive nuisance doctrine, liability releases, statute of limitations, and playgrounds.
In most states, when one person sues another, the plaintiff’s fault in causing the accident reduces the amount he or she can recover, and depending upon the circumstances, may bar the entire lawsuit. This legal concept is referred to as “comparative fault,” “comparative negligence,” or “contributory negligence,” depending upon the state.
While this legal doctrine at first blush may sound like quite a mouthful, in reality it is pretty straightforward.
A simple illustration involving an outdoor pool will help explain this concept. Assume that an adult visitor fails to notice a no-diving sign by the pool fence, as the sign is obstructed by bushes. The guest then injures himself by diving into the shallow end of the pool.
If he sues, the judge or jury would have to compare the fault of the pool owner for not trimming the bushes over the warning sign with the fault of the injured person for diving into what should have appeared to be shallow water. If the judge or jury concludes that the fault of the injured diver was, say, 30 percent of the cause of the accident and the fault of the park was 70 percent, and the injured person’s damages are $100,000, the park in most states would owe $70,000 (i.e., 70 percent of the total damages). However, in most (but not all states), if the judge or jury determines that the fault of the injured diver was greater than that of the park—for example, the injured diver was 70 percent at fault and the park was 30 percent at fault—then the injured diver would not recover any damages. These are the concepts of contributory negligence.
These rules, however, can be quite different for claims by children. Quite often, children under a certain age can not be found to be at fault for their actions. Courts assume that young children do not have the mental capacity to decide whether their actions are safe or not.
The age at which a child cannot be found to be comparatively negligent varies from state to state. For example, in Colorado the age threshold is under the age of seven, while in Vermont it is under the age of three.
Even if children are over the age threshold, many courts still judge a child’s fault against a standard of the reasonable actions taken by other children of a similar age and mental ability, rather than comparing them to adults.
So, to take the same hypothetical situation but changing the facts slightly, so that it is a six-year-old child diving into the shallow end of the pool (and the event occurs in Colorado), the legal consequences are quite different. The child’s fault does not reduce or bar his or her damages if the pool owner were to lose the case.
This does not mean that the owner has no defenses, but it does mean that he does not have the defense of contributory negligence. And, even if the child is seven years old as opposed to six, the child’s decision to dive into the shallow end is usually judged not against the decision of the average adult, but against the reasonable actions of another child of the same age and ability.
The first question many people would ask based upon this hypothetical is, “What about the fault of the parents in letting their child dive into the shallow end of the pool?” Excellent question. And the answer …
In accidents involving young children, the questions of where the parents were, and whether they were properly supervising their children, almost always play a central role. However, courts disagree on the extent to which a parent’s failure to supervise his or her child bars or limits claims brought by the child against a third party, such as an adventure park. While many courts rely heavily on the doctrine that a child’s safety is the “primary responsibility” of the parent, this does not always provide protection for the park. The take-away from this is that, while there may be some protection for the park due to parental action or inaction, a parent’s conduct does not always insulate a park from liability.