Comments
  • Anne Marie November 1, 2010 at 1:50 pm

    I find it absolutely crazy that one would bring suit against a 4 year old. Clearly the estate/family is after financial gain from the parents as 4 year olds do not have anything to offer. When the under 5 crowd is involved, especially in a busy city, accidents happen- even with a parents supervision. Children can ride faster than parents can run, children trip, they bump into people and things…sometimes they hurt themselves or others. It is what happens in the world. What are we saying about ourselves, our society if we begin suing children. It is unfortuante that the accident happened, i agree. It is unfortunate that the woman needed hip surgery, i agree. But these children did NOT cause her death, she died of unrelated cuases. They were 4- do we all need to say it again? 4. If anyone has every had or dealt with a 4 year old they would know sometimes they get out of your grasp and you have to run to catch up with them or (their bikes.) I am sure the parents were horrified and apologetic..do we really need to sue for everything? Shame on the family and estate who are pursuing these charges… to what end and to what gain is my question.

    • admin November 1, 2010 at 11:15 am

      Hi Anne Marie, I'm completely in your court on this one. It was truly an unfortunate accident, but if anyone is going to go after damages in any way, the only target I can see is the parents–certainly not the 4 year olds; I don't know enough about the details to fully know why the estate is pursuing this case, but I do know plenty about how a 4 year old behaves (I've had three of them) and couldn't agree with you more. Thanks for your comment!

  • Stephanie November 2, 2010 at 6:58 am

    I agree with both of you ladies. I’m a mother as well. We’ve all been around the little accidents and mishaps of children. It’s part of growing up. Given the precedent, would that mean that parents would now have the right to sue a child who bites their own child (while teething)? Come on.
    I think it’s tragedy that this woman was struck, and even moreso that she passed a few months after the incident. However, the fact that the judge is prceding with the suit against the child is insane. If a judge starts citing court ruling that antequated where will it stop? Will a man claim legal defense for beating his wife because he followed the rule of thumb? It’s insane.
    I also believe that thre reason the suit wasn’t brought against the parents is simply because the plaintiffs attorney knows that there is little or no way of proving negligence on their part. I am curious to see how this one plays out, and I hope the plaintiff’s attorney ends up looking like the ass he/she is.

    • admin November 2, 2010 at 8:25 am

      Hi Stephanie, Thanks for your comments–well said! And unfortunately it’s these types of cases that give lawyers and the legal system as a whole a bad name–or at the very least cause for ridicule. No one would ever deny that what happened on the sidewalk that day was terrible–and most of us would have probably apologized profusely and offered to help in any way we could. The sad thing with this, too, is that the little girl’s (and boy’s) name is plastered all over the press (yes, on this site, too); she is now a bit older and will undoubtedly be in school by the time the trial gets underway. Unless the family hides under a rock somewhere, she will also undoubtedly begin to be asked questions at best, or teased and taunted at worst by other school children. Is it really necessary to set a child up for that? And for what gain on the side of the plaintiffs? I don’t know if the victim was properly insured, etc–that has not to my knowledge been reported on yet, and I don’t know all the details of the lawsuit, but certainly on the surface this one’s worth raising an eyebrow over…

      • Phil November 15, 2010 at 7:34 pm

        “And unfortunately it’s these types of cases that give lawyers and the legal system as a whole a bad name–or at the very least cause for ridicule.”

        Yes god forbid lawyers seek recovery for injuries suffered by elderly victims.

        “The sad thing with this, too, is that the little girl’s (and boy’s) name is plastered all over the press (yes, on this site, too); she is now a bit older and will undoubtedly be in school by the time the trial gets underway. Unless the family hides under a rock somewhere, she will also undoubtedly begin to be asked questions at best, or teased and taunted at worst by other school children. Is it really necessary to set a child up for that?”

        Are you suggesting that 5 year olds are reading news stories on the internet?

        “And for what gain on the side of the plaintiffs? I don’t know if the victim was properly insured, etc–that has not to my knowledge been reported on yet, and I don’t know all the details of the lawsuit, but certainly on the surface this one’s worth raising an eyebrow over”

        Yet you find it appropriate to comment on the case without doing the minimal amount of research that is required to find an answer? There are two insurance policies listed on the motion to substitute the estate for the now deceased woman.

        • admin November 16, 2010 at 4:49 am

          Hi Phil, Thank you for your comments; I have a sense that you can appreciate how impressionable a young child is and how easily scared and embarrassed a child can become when at the hands of grown-ups who feel the need to do something like plastering the child's name all over the press. Who knows?–maybe they see it as a way to teach a child a lesson or something. At any rate, I don't know if you have any children, or whether you have first hand experience as a parent dealing w/the microcosm known as elementary school, but children talk–and they hear their parents talking. They hear older children & older siblings talking. So regardless of whether a 5-year-old is reading an online news story, I guarantee you that this child's school mates are aware of this story. If you can step back for a minute from your righteousness and see the impact on the child, you have to consider or at least question the value of proceeding with this lawsuit. What's the end game here? To win some cash? It's amazing and yet so predictable how one or two events in a young child's life can stick with them forever and have unforeseen consequences–maybe they'll be ashamed in later years or find themselves on a shrink's couch or, worse yet, be addicted to antidepressants or some other drug. Because some grown up somewhere didn't know when to say when and pull back from the situation and consider the bigger picture and the future of an innocent child. Believe me, I get that this may be the only way for the plaintiffs–oh, excuse me, the estate–to recover any damages they feel are still their due; but at what ultimate price?
          You're right in stating that I did not do a heck of a lot of research on this one–it wasn't the point of my post. Additionally, you mention in one of your comments about homeowner's insurance. Perhaps the defendants have the most incredible policy out there and they have coverage for when an accident happens anywhere on the planet. For a number of us, however, our policies only cover such events if they happen on our property. As you mention, I didn't do lots of research, so I don't know–maybe the defendants actually own that stretch of the NYC sidewalk and I missed it in the court docs–?
          I don't begrudge the elderly–far from it. And no one–NO ONE–who is elderly should ever be the victim of intentional or malicious wrongdoing, abuse or injury. Key words: intentional or malicious. If you can find the documents that state–and prove–that a couple of 4-year-olds intentially and/or maliciously mowed down an octogenarian, ok. My guess however is that such paperwork doesn't exist.
          I hope the plaintiffs–er, the estate–gets all it desires from this case–and maybe if insurance isn't enough they can go after the little girl's Barbie doll or Leapster or Polly Pockets…that'll teach her.

  • Phil November 15, 2010 at 7:30 pm

    3 Reasons why a 4 year old should be sued for negligence

    #1

    Because the elderly are in fact still human beings and citizens, and the purpose of torts is to make the injured party whole. An 87 year old had her hip broken. Even though she may have died of unrelated causes hip injuries often cause a degredation of quality of life and are difficult to recover from. Contrary to this ill informed post, the suit was brought by the elderly woman, but she died prior to the case moving forward so her estate was substituted.

    #2

    In this country as a general rule we do not hold people responsible for the torts of others. Why? Children are autonomous creatures and parents cannot control every action of a child. The only way to recover from the parents would be under some sort of negligent entrustment theory which requires showing that the child has a habitual tendency to engage in the reckless behavior. So there is no chance of recovering from the parents.

    #3

    Homeowner’s Insurance almost invariably has personal liability coverage which will cover the torts of the policy holder and any minor children that reside in the home.

    • admin November 16, 2010 at 9:50 am

      Hi Phil, see my other comments

      • Phil November 16, 2010 at 11:41 am

        I recall whole heartedly being 5 years old and hearing the tawdry details of what kindergartener was sleeping with whom. I’ll never forget this one time where my evil twin, who was separated at birth, showed up in town and tried to pin some hair pulling on me. What’s amazingly predictable is how much we as a society have become overprotective of and coddle children. Why stop with? What about incredibly stupid people? Perhaps we should do psych eval on every defendant to determine the emotional impact the lawsuit will have on them before we allow it to proceed. “Sorry about your third degree burns sir, but after the redneck defendant carelessly burned his garbage and set your house on fire, he had to watch you run out engulfed in flames and the trauma of reliving the ordeal in court may stick with him forever. So we are going to award you a handshake and wish you good luck.” Sorry but an old woman was hurt, and suffered damages. The most important aspect of this case is insuring that she is compensated for those actual injuries, and not protecting the defendant from some highly speculative potential consequences. You can try to disparage the case by referencing the plaintiff-err estate- all you want. The fact is the old woman brought the case to recover damages, and the fact that the estate is carrying out her wishes, makes it no less viable. Perhaps we shouldn’t allow any cases at all to be brought for deceased victims.

        Have you read your homeowner’s insurance policy. Do you have a section on personal liability coverage? It has nothing to do with the most incredible insurance on the planet. It is actually relatively common. 1 in 5 homes is insured with State Farm and I know that they cover injuries occurring off the premises. I also know that the defendant in question has an allstate policy. Let’s see what they say on the matter:

        “Liability Insurance helps protect you against the financial uncertainty arising from injury (or property damage) that you or your family may cause to other people. It typically even covers injuries whether they happen on or away from your property.”

        “I don’t begrudge the elderly–far from it. And no one–NO ONE–who is elderly should ever be the victim of intentional or malicious wrongdoing, abuse or injury. ”

        So the elderly should only be allowed to recover for intentional torts, not negligence. Doesn’t seem like you begrudge them at all.

        • Phil November 16, 2010 at 10:00 am

          "In the case of your redneck–which I’ll forgive the stereotyping here–if he burned garbage and it burned the neighbor’s house down and caused injury, then clearly there should be damages sought. But you missed the point there–I’m assuming the redneck was not 4 years old–or was he?"

          Is it relevant? Let's assume he has the education level and cognative ability of a four year old (which given his setting fire next to dwelling is probably not much of a stretch). How is this different then the four year old? How do you justify your position that damages should be sought in that case, but not in the case of an injury caused by a person of equally limited development?

          "You didn’t mention whether you were a parent, but any parent can tell you that age 4 is not exactly the age of full cognizance of one’s actions. Enough said on that."

          Because my having children or not is irrelevant, as is a four year old having "full" cognizance. Nobody is suggesting that a four year old is fully aware of his or her actions. The focus more appropriately is whether a four year old of like age, experience, and development would have acted in the same manner and raced his/her bike down the sidewalk. Based on my own experience I'm not entirely convinced either way, but I'm not a child development expert nor am I on the jury, so it is not my decision to make.

          You and I are not in disagreement about insurance companies. I think if the insurance company were forthcoming with a check then all of the ugliness could be avoided. Unfortunately that is not the case and the greatest chance of recovery is through the child. The insurance company's failure to pay is what forced the child to act as their proxy. Yet, I don't see the insurance company being villified (this is not specific to this post), but rather see; the judges competence and reasoning called into question for following precedent, allowing the case to move forward, and giving the injured party a path to potential recovery; the lawyers being called greedy and "giving lawyers a bad name"; and the old lady and her estate impugned for trying to recover medical costs.

          "And therein lies part of my stance on this–is the legal battle, the impact on the children involved, the dragging on of handling the decedent’s estate–is it worth it? It’s not like a big pharma negiligence lawsuit where there may have been knowledge of the wrongdoing in advance and a mega settlement on the table. And what if it’s truly deemed that the plaintiff’s death had zero to do with the training bike run-in? Then how much are we talking?"

          The plaintiff's death is not relevant to the suit, and I highly doubt that the plaintiff was seeking lost income. The complaint only mentions only the injuries she sustained in the incident. Her death was allegedly from unrelated causes. That does not erase medical costs that the woman incurred while she was alive. I don't think the legal system should be reserved for multi-million dollar suits, but rather should provide a path for all injured parties to recover for damages.

        • admin November 16, 2010 at 1:07 pm

          Hi Phil, Well, you’re a spritely fellow–I like that–and that you’ve got a fire in that belly of yours! Ok, in the case of your redneck–which I’ll forgive the stereotyping here–if he burned garbage and it burned the neighbor’s house down and caused injury, then clearly there should be damages sought. But you missed the point there–I’m assuming the redneck was not 4 years old–or was he? Your point about coddling members of society is well-taken though, and ordinarily I’d be in agreement with you–just not when we’re talking about a 4 year old. You didn’t mention whether you were a parent, but any parent can tell you that age 4 is not exactly the age of full cognizance of one’s actions. Enough said on that. I truly hope that you never experience what it’s like to have a child of your own be ridiculed, teased, ostracized, etc–perhaps for something they did that they had no realization of the impact of.
          I should add here, that my issue is with the fact that the case can proceed against a 4-year-old; I would not have an issue–or nearly as much of one–if the plaintiff were merely suing the parents (or their insurance co’s) of the youngsters involved; my issue is that now, the system has basically made the 4 year old a proxy for the insurance company–as the ultimate defendant. And that’s where I have an issue. Clearly, someone thought that strategically, there might not have been as strong a case if the plaintiff just went after mommy–so now we have a case allowed to proceed against a child who was 4 at the time of the incident.
          Re: homeowner’s insurance, yes, I have read my homeowner’s policy, and yes, you are correct–my experience, however (and I’m not alone), is that the chances of seeing a check willingly forthcoming from the insurance company are not great, particularly when the injury/incident happens off-property. Which, is most likely why the lawsuit. It will be interesting to see just what damages are collected from this. Many in the legal arena either think the case should have been dropped, or won’t really amount to much. Here, some quotes you may find of interest…first, from the volokh conspiracy:
          ” Recall that the court is just saying that whether the child was negligent is a matter for the jury — and the question is whether the 4-year-old is acting reasonably by the standard of a “reasonably prudent child of that age, experience, intelligence and degree of development and capacity.” I suspect that a jury would not find the girl liable under this standard; but I also suspect that the insurance company will settle, to avoid the cost and risk of litigation, though probably not for very much, given the likelihood that plaintiffs wouldn’t win at trial.”
          Others commented saying that the insurance company wouldn’t settle…
          “I suspect the insurance does apply in this case otherwise there probably wouldn’t even be a suit. (unless the parents are sufficiently wealthy that they have easily collectible assets). I do think you have a point about the insurance company being not likely to settle this. If they win at trial or even lose at trial and win on appeal, they gain law in their favor against other potential children’s torts in New York. If they lose at trial, they’re out what, a couple hundred thousand, half a million at the very most? I don’t want to be harsh, but an 87 year old woman likely has minimal lost income and future income. So what you’re really talking about in the death case is final medical expenses, pain and suffering, and any damages the survivors can prove (funeral expenses etc).”
          And therein lies part of my stance on this–is the legal battle, the impact on the children involved, the dragging on of handling the decedent’s estate–is it worth it? It’s not like a big pharma negiligence lawsuit where there may have been knowledge of the wrongdoing in advance and a mega settlement on the table. And what if it’s truly deemed that the plaintiff’s death had zero to do with the training bike run-in? Then how much are we talking?

          Of course a verdict of that size is never one to be taken lightly, but large insurance companies regularly make those sort of gambles in other cases

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