It’s always a sad situation when a child is injured, and the law that applies to adults is not always appropriate for children. The law of negligence takes into account this fact, recognizing that children are not expected to be as careful as adults. Different states take a child’s youth into account in various ways. In this article, we will address the treatment of children in negligence in North Carolina, contributory negligence jurisdiction, and South Carolina, a comparative negligence jurisdiction.
For general information on liability of parents, see Vicarious Liability for Parents of Teen Drivers.
North Carolina remains a contributory negligence state, where the smallest amount of negligence on the part of the plaintiff will bar recovery for the plaintiff. If a plaintiff adult is not as careful as he or she should have been, he or she will not recovery against any defendant, even a negligent one. This presents a problem in the case of children: children aren’t expected to act as adults, but any amount of negligence (rightly considered) is supposed to bar recovery. A “rule of sevens” developed: children seven and under are conclusively presumed to have not been negligent and children between seven and fourteen are rebuttably presumed not to have been negligent. Thus, no matter how a child under seven conducts him or herself, as long as there is otherwise negligence on the part of the defendant, the child plaintiff can recover. However, if the child is between seven and fourteen, the defendant will get the opportunity to prove that the child knew better than to act the way he or she did.
Children of fourteen are automatically presumed to be as capable of contributory negligence as an adult, and any negligence on their part will be a bar to any recovery.
The standard of care applied to children below fourteen and above seven is the what would be expected of a child of the same “age, capacity, discretion, knowledge, and experience would exercise under the same or similar circumstances.” The defendant, when there is appropriate evidence, has the opportunity to argue that the plaintiff child acted negligently by the standards of a child of the same age, and if the judge agrees that there is a triable issue of fact as to the negligence of the child, the jury gets to decide whether the child was contributorily negligent, barring the child’s recovery. The difference for children under seven is that the defendant will not be able to make this argument to the jury, and the only questions that the jury would receive is whether the defendant was negligent and what damages were, and not whether the child was also negligent.
South Carolina, on the other hand, is a comparative negligence state. Thus, the traditional rule with its bright-line presumptions has less of a place. There is no need to protect children against the complete bar of contributory negligence because instead of barring recovery, comparative negligence merely reduces recovery to the degree of the plaintiff’s negligence. Instead, the child’s behavior is considered in line with what would be expected of a child of the same age, intelligence, and experiences under similar circumstances. While this may result in juries finding that young children are partially negligent, and merit a slightly reduced award, this rule actually judges a child’s negligence in each case by the standards expected of a child rather than applying a fixed rule to all children despite the individual circumstances. The practical result of this rule is that instead of the jury considering whether the child was contributorily negligent, the jury must consider the extent to which, if at all, the child was negligent (by a child standard) reducing the award, instead of barring it altogether.