Obiter Dicta

Torts for Tots: Swear to Tell the Truth or Go to Your Room

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Illustration by Francisco Caceres

“Will the defendant please rise?”

“Actually, your honor, he’s not up from his nap yet. And he hasn’t had his ba-ba.”

“OK, counselor, have him here for the afternoon session, and make sure he’s burped and has his Binky.”

A bit farfetched, perhaps, but that’s the logical endgame to what appears to be a troubling trend. Kids—some who still require car seats—are increasingly being targeted in lawsuits that seek to punish youthful folly.

Though not without precedent—see Garratt v. Dailey (1955) wherein a 5-year-old scamp found himself in need of a lawyer after he pulled a chair away from his aunt, Ruth Garratt, as she was about to sit, resulting in a fractured hip—it seems that the litigation machine has lately been ratcheted up a notch or three to ensnare children. Youthful folly, indeed.

One of the most visible players on this stage during the past decade has been the Recording Industry Association of America, which has been known to go after children 12 and younger for copyright infringements stemming from the use of file-sharing services. Use of the services netted some kids their favorite tunes—with a subpoena chaser. Then, often, would come a verdict for the RIAA, with a surprising number of zeroes.

And in 2007, a Pennsylvania man sued a 7-year-old boy for negligence after the youth collided with him on a ski slope in Colorado. David Pfahler of Allentown wanted $75,000 for rotator cuff-related injuries. The lad, Scott Swimm, was served the lawsuit papers by police and deposed by a team of three attorneys. The suit later settled for $25,000.

The point is, things don’t seem to just happen anymore. Somebody has to be made to pay for every misfortune that befalls a person, even if that “somebody” is a 4-year-old.

Or so says the New York State Supreme Court. In October, Justice Paul Wooten ruled that Juliet Breitman—who was all of 4 in April 2009 when she allegedly rode her bicycle with training wheels on a Manhattan side walk and struck an elderly woman—could be sued for negligence. The woman, 87-year-old Claire Menagh, died three months later, though reportedly from unrelated causes.

Had little Juliet been under the age of 4 at the time of the accident, she would have been held non sui juris, or not responsible for her actions. But because she was relatively long in the (baby) tooth, she was deemed—according to the ruling—intelligent enough and mature enough to appreciate “the danger of riding a bicycle into an elderly woman.”

If this is the direction that we, as a society, are heading, then we’d better get our law schools to make some adjustments to their curricula. Future lawyers will need to be well-versed in how to garnishee an allowance or put a lien on a Big Wheel or plea bargain from a grounding to a timeout.

The new reality for today’s parents is that they need to raise their kids with an emphasis on health, happiness, safety—and liability.

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