4-Year-Old Can Be Sued, Judge Rules in Bike Case

[kgeaux]

I would think it's a human response to get out of the way if you can. I've seen people do it on a dare or on the show Jackass, but most of the time people get out of the way if they can.

Do we know that the elderly woman was facing the bike? I can't remember if I read that or not...

 

[ziggy]

This is a real law. In GA, it is charged regularly at the end of auto accident trial - if you have an opportunity to get out of the way of impending "tort", you are legally required to take it!!

Interesting - seems most jurisdictions have comparative fault and they parse out what percentage of fault the person who got hurt had so as not to completely bar him from recovering if his portion of fault was only a small percentage.

Also, on a previous comment by believe about the frailty of the deceased... - you must take the plaintiff as you find them...the eggshell plaintiff. You can't only be careful around people who can take a hit - you must show care at all times because you never know what the condition of the person might be and you are liable for all of their injuries and perhaps their death.

 

[ziggy]

And keep in mind the judge is not commenting on whether she is liable - only that under the law she can be sued. Children can be sued for their negligence - it's not a new concept - she was a few months shy of 5 years old and the judge figures it's up to the trial court/jury to decide how this will end once they have all the facts. I know it's harsh but elderly woman was seriously hurt - she probably suffered a lot of pain with a broken hip etc...her family may have incurred hardships in taking care of her or being able to help her pay the bills. We don't know; but someone should take a look and that is what the jury will do.

 

[Nova]

I'm still trying to imagine the facts where the "failure to avoid" law would apply.

I suppose someone might just be stubborn enough to stand her ground even as an out-of-control cyclist hurtled toward her, but I'll be very surprised if those are the facts in this case.

And this does not apply in this case, but in the states were I've lived, pedestrians and cyclists are supposed to be on opposite sides of the road (pedestrians walking against car traffic; cyclists moving with it). In that case, I can see where the pedestrian might share fault (or even be entirely at fault) because he was on the wrong side of the street.

As it happens, I've had two close calls lately where I was nearly hit by a cyclist who came up behind me suddenly when I was walking on a sidewalk. I'm not 87 and wouldn't have been killed, I don't think, but could have been injured. I assume the cyclists would have been at fault had they hit me because they're not supposed to be on the sidewalk in the first place, but now I'm wondering: do I need to install rear-view mirrors on my glasses?

 

[Lera213]

Well Cass Sunstien says he thinks that animals has standing to Sue people. LOL

 

[Lera213]

I'm still trying to imagine the facts where the "failure to avoid" law would apply.

I suppose someone might just be stubborn enough to stand her ground even as an out-of-control cyclist hurtled toward her, but I'll be very surprised if those are the facts in this case.

And this does not apply in this case, but in the states were I've lived, pedestrians and cyclists are supposed to be on opposite sides of the road (pedestrians walking against car traffic; cyclists moving with it). In that case, I can see where the pedestrian might share fault (or even be entirely at fault) because he was on the wrong side of the street.

As it happens, I've had two close calls lately where I was nearly hit by a cyclist who came up behind me suddenly when I was walking on a sidewalk. I'm not 87 and wouldn't have been killed, I don't think, but could have been injured. I assume the cyclists would have been at fault had they hit me because they're not supposed to be on the sidewalk in the first place, but now I'm wondering: do I need to install rear-view mirrors on my glasses?

When we lived in the Philippines, we were briefed to not drive off base if we didn't have to. Why? Because they would throw themselves in front of your car (car doing maybe 5mph) and then they sue you, and for a lot of money. American could not leave the country until it went to trial which could take YEARS and YEARS. The so called victim would get their money, it was a scam.

 

[Nova]

When we lived in the Philippines, we were briefed to not drive off base if we didn't have to. Why? Because they would throw themselves in front of your car (car doing maybe 5mph) and then they sue you, and for a lot of money. American could not leave the country until it went to trial which could take YEARS and YEARS. The so called victim would get their money, it was a scam.

The insurance scam I mentioned above happened to a friend of mine in Los Angeles, so, unfortunately, one needn't go abroad for these sorts of things.

 

[southcitymom]

Were I on the jury, I would conclude that if the 87-year-old could have avoided the accident, she would have. How would one reasonably conclude otherwise? Is there evidence the old lady decided to use a 4-year-old cyclist to commit suicide?

SCM, I'm sure this law has some purpose. But I'm having trouble imaging the facts that would justify concluding that the victim failed to avoid the tort. Can you think of any examples? (I can think of cases that involve fraud, scams where people deliberately slam their brakes in front of cars so they can sue after the collision. But I assume there are other laws (fraud, etc.) that apply in such cases.)

I have never personally seen a case where a jury took this charge and decided a plaintiff was at fault because they could have avoided the accident. As I said, it is charged by defendants in hopes of mitigating damages.

For example - let's say a defendant slams his vehicle into the back of a plaintiff and causes the plaintiff injury. The defendant has liability, of course, for causing the collision, but what if the plaintiff was traveling below the speed limit in the left lane of an empty four-lane highway.....it could be argued (with limited success, perhaps, but argued nonetheless) that the plaintiff should have seen the defendant coming and gotten out of the way by moving to the right and/or following the posted speed limit.

Another example - and one that is more common - a person makes a questionable left hand turn on a green light and is struck by another vehicle. Who might be at fault in such a scenario depends on lots of things, but the attorneys of the person blamed for the accident will surely try to argue and charge that the other person could have somehow avoided it.

Don;t know if those make sense....it is early and I haven;t had enough coffee yet!

 

[Tuffy]

I have never personally seen a case where a jury took this charge and decided a plaintiff was at fault because they could have avoided the accident. As I said, it is charged by defendants in hopes of mitigating damages.

For example - let's say a defendant slams his vehicle into the back of a plaintiff and causes the plaintiff injury. The defendant has liability, of course, for causing the collision, but what if the plaintiff was traveling below the speed limit in the left lane of an empty four-lane highway.....it could be argued (with limited success, perhaps, but argued nonetheless) that the plaintiff should have seen the defendant coming and gotten out of the way by moving to the right and/or following the posted speed limit.

Another example - and one that is more common - a person makes a questionable left hand turn on a green light and is struck by another vehicle. Who might be at fault in such a scenario depends on lots of things, but the attorneys of the person blamed for the accident will surely try to argue and charge that the other person could have somehow avoided it.

Don;t know if those make sense....it is early and I haven;t had enough coffee yet!

I think where you would see this type of decision is when a person could avoid an accident. If someone cuts you off, and you don't brake or swerve. A situation where the person you hit did something wrong like cuts you off, or turns in front of you, and you don't do anything to avoid it or lessen the impact.

 

[southcitymom]

I think where you would see this type of decision is when a person could avoid an accident. If someone cuts you off, and you don't brake or swerve. A situation where the person you hit did something wrong like cuts you off, or turns in front of you, and you don't do anything to avoid it or lessen the impact.

Yes exactly - you say so succinctly and plainly what I was having trouble explaining in many more words!

 

[AutomaticAuttie]

I would be curious to know the amount the estate it suing for. I highly doubt a jury would find these two toddlers guilty of anything other then an unfortunate accident. If there is no “bright-line” rule, then I can see why the judge is allowing the child to be sued and not the parent.

 

[BuzzieCat]

The children in question were not toddlers.

I keep saying it, but I would really like to know the exact circumstances of this case because I could understand it a lot better. I wonder if the woman ever knew that they were coming up behind her at all. Or maybe she realized too late. Or maybe she saw them but failed to realize they were coming straight for her. How busy was the sidewalk? Was the sidewalk usually used for bicycle races? Etc.

 

[kgeaux]

Were I on the jury, I would conclude that if the 87-year-old could have avoided the accident, she would have. How would one reasonably conclude otherwise? Is there evidence the old lady decided to use a 4-year-old cyclist to commit suicide?

SCM, I'm sure this law has some purpose. But I'm having trouble imaging the facts that would justify concluding that the victim failed to avoid the tort. Can you think of any examples? (I can think of cases that involve fraud, scams where people deliberately slam their brakes in front of cars so they can sue after the collision. But I assume there are other laws (fraud, etc.) that apply in such cases.)

My son was involved in an auto accident years ago, and we ended up being sued by a little old lady.....not a NICE little old lady, but still! We do have a "take the victim as he/she comes" law here....we also have the percentages thing, where the jury determines what percentage of fault for an accident is accountable to the defendant, and what percentage of fault should be applied to the victim.

I do agree with you that if the poor woman in this case had a chance to get out of the way, she would have. Many of the older people I know have diminished vision and diminished hearing, not to mention that they just aren't as fast on their feet as a younger person. So even if she did attempt to avoid the young biker, she just may not have had enough time or the mobility to do so.

It's a sad case.

tely about the money involved (and likely driven by insurance companies trying to not have to spend any of "their" money).[/QUOTE]I think this is a tragic accident, but the NYTimes article I read about this case said that it was the *estate* of the 87 year old woman that was suing the children, which makes me think that this is ultima

Well, I totally and completely messed up the quote.......SORRY!

Just trying to put myself into the shoes of this woman's survivors.......the motivation to sue may simply be punative: they are angry that their loved one suffered so badly because of this accident, they are angry that they've lost their loved one due to the accident.

 

[legalmania]

I would be curious to know the amount the estate it suing for. I highly doubt a jury would find these two toddlers guilty of anything other then an unfortunate accident. If there is no “bright-line” rule, then I can see why the judge is allowing the child to be sued and not the parent.

I thought both mothers were also being sued? Damages are going to be interesting because the elderly women did not die from the original injury. So where do you draw the line? Unfortunately the woman's age will probably come into consideration. From a legal standpoint this case is very intriguing.

The ruling by the judge, Justice Paul Wooten of State Supreme Court in Manhattan, did not find that the girl was liable, but merely permitted a lawsuit brought against her, another boy and their parents to move forward.

 

[kgeaux]

I thought both mothers were also being sued? Damages are going to be interesting because the elderly women did not die from the original injury. So where do you draw the line? Unfortunately the woman's age will probably come into consideration. From a legal standpoint this case is very intriguing.

The ruling by the judge, Justice Paul Wooten of State Supreme Court in Manhattan, did not find that the girl was liable, but merely permitted a lawsuit brought against her, another boy and their parents to move forward.

I'm not sure of the laws where this happened, but here,it doesn't matter if you don't die from the original injury; if you die from processes that were put into motion by the injury,
then whoever caused the injury is still liable.

 

[legalmania]

I'm not sure of the laws where this happened, but here,it doesn't matter if you don't die from the original injury; if you die from processes that were put into motion by the injury,
then whoever caused the injury is still liable.

In Florida they refer to it as the "but for" theory. This happened in NY and I'm not familiar with their civil law either. In Florida there is a very gray area when it comes to children and civil, criminal cases, they take it case by case.

 

[tlcya]

I'm not saying that's what happened. The article doesn't say.



Well, the kids aren't very safe if they aren't able/aren't old enough to keep from running into things. Perhaps laws governing the use of sidewalks need to be revamped. If the kid can't avoid running into a probably slow-moving elderly person, what else can't she avoid running into, thus hurting herself, never mind anything/anyone else?



That's what the lawyer is for and her parent, who apparently was present at the accident. I'm sure she's not being asked to represent herself and give 100% flawless, accurate testimony as to what happened.


(Respectfully snipped)
Her parents' insurance company is, what I understand, would be asked to pay. I'm under the understanding that the lady's insurance refused to pay her medical costs because the damage was caused by another.

Peoples insurance dont usually refuse to pay for treatment of 87 year old ladies with broken hip, and IF they did, then that's were your lawsuit OUGHT to be.

Insurance companies pay for things like that all the time, then, if the injured party wins a lawsuit or a settlement arising from the injury, the insurance company that paid the bills has the right to reimbursement under the law. They essentially have a lien on any recovery made from the lawsuit/settlement.

IMO - if that little old lady's insurance company failed to pay for her treatment, THEY should be sued, better chance at collecting from them anyway than a four your old or its parents' measely policy limits.

 

[Nova]

I'm not sure of the laws where this happened, but here,it doesn't matter if you don't die from the original injury; if you die from processes that were put into motion by the injury,
then whoever caused the injury is still liable.

I think most jurisdictions have something similar. It just adds another layer of complexity to the burden of proof. Conventional wisdom may say a broken hip sometimes leads to a death three months later, but proving it to a medical certainty may be something else again.

 

[BuzzieCat]

One of the articles I read seemed to imply that the woman herself started the case.

 

[legalmania]

Peoples insurance dont usually refuse to pay for treatment of 87 year old ladies with broken hip, and IF they did, then that's were your lawsuit OUGHT to be.

Insurance companies pay for things like that all the time, then, if the injured party wins a lawsuit or a settlement arising from the injury, the insurance company that paid the bills has the right to reimbursement under the law. They essentially have a lien on any recovery made from the lawsuit/settlement.

IMO - if that little old lady's insurance company failed to pay for her treatment, THEY should be sued, better chance at collecting from them anyway than a four your old or its parents' measely policy limits.[/quote

But if the older women was on medicare or medicaid why should the taxpayer be responsible for paying for the older ladies insurance?