When the Law Is Unethical: The Case of the Negligent Toddler

Justice Paul Wooten of the State Supreme Court in Manhattan just ruled that Juliet Breitman, accused of running down an elderly woman while racing a bicycle with training wheels on a Manhattan sidewalk two years ago, can be sued for negligence. She was four years old at the time.





The justice cited precedents holding that yes, children under four cannot comprehend the concept of negligence, but once they hit four, you can trust them to be as responsible and careful and rational as, say, Oprah Winfrey, and a lot more trustworthy than Amy Winehouse. Okay, I’m paraphrasing. What the judge really said was that while defense counsel was correct to point out “that infants under the age of four are conclusively presumed incapable of negligence, Juliet Breitman, however, was over the age of 4 at the time of the subject incident. For infants above the age of 4, there is no bright-line rule.”

Uh-huh. Maybe there’s no bright-line rule because people don’t often sue four-year-olds for negligence, since only a heartless and venal accident victim would ever sue a child so young, alleging that the child did “something which a reasonably prudent person would not do, or [failed] to do something which a reasonably prudent person would do under like circumstances. A departure from what an ordinary reasonable member of the community would do in the same community.” That is a legal definition of negligence, and it is absurd, foolish, senseless, illogical, cruel, irresponsible and unfair to apply it to a four-year old, for the brilliantly obvious reason that there is no such thing as a reasonable four-year old, a prudent four-year old, or a four-year old that anyone of sound mind would call “an ordinary reasonable member of the community.” They are not ordinary members of the community. They can’t read. They don’t have jobs. They can’t drive. They can’t cook their own food. They don’t comprehend death, or ethics, or religion or money or sex. They believe in Santa Clause and the Easter Bunny. They think Barney is entertaining. A full-grown woman who had the mental abilities of a four-year old would be regarded as seriously mentally deficient and an incompetent.  Would Justice Wooten agree that  such a woman could be sued for negligence? This would be a woman who would lose a game of Scrabble to Lenny from Of Mice and Men (“Tell me about the rabbits, George!”), and Lenny, you Steinbeck fans will recall, was not what anyone would refer to as “reasonable.”

The more one reads the justice’ opinion, the more one wonders if he has been confused by watching too many E-Trade ads—you know, the ones with the hip talking babies. There was no evidence, he wrote, of Juliet’s “lack of intelligence or maturity” or anything to “indicate that another child of similar age and capacity under the circumstances could not have reasonably appreciated the danger of riding a bicycle into an elderly woman.” There is no evidence of Juliet’s “lack of maturity?’ She’s was four years old! How much more evidence of “lack of maturity” do we need?

Sometimes the law gets caught in these dark, muddy holes, where careful, scholarly interpretation leads to manifestly unjust and, as in this case, nonsensical results. What is needed in such situations is courageous good sense and an ability to know an obvious wrong when one sees it. A four-year old cannot and should not be sued for negligence. It is obvious, whether a court has found fit to say previously or not. I know the Justice Paul Wooten isn’t saying that Juliet was negligent, just that the fact that she was four doesn’t legally preclude it. Still, his ruling is a classic example of the law being unethical.

Which it is not supposed to be.

Even a four-year-old could figure that out.

9 thoughts on “When the Law Is Unethical: The Case of the Negligent Toddler

  1. Where in God’s Holy Name do these judges come from, Jack? This appears to me to be a manifestation of the leftist idea (so prominent now in Hollywood) that children are “little adults”. Under that philosophy, just about any outrage against them becomes possible. Certainly, those outrages have been forthcoming across the spectrum. This is one more. But it threatens to open up a vast new area of opportunity for trial lawyers if (incredibly) this ruling is allowed to stand. Suing preteen children? Have we forgotten what the word “parent” entails? Or the term “parental responsibility”?

  2. Very well written Jack,

    was reading about this case on a Danish news site and simply had to see if anyone in your country was as appalled as I was. How did someone with so little grasp of human nature ever get to be a supreme court justice?

    How many of these kind of cases does it take before people start demanding a revision of the court system?

    By the way I’m not implying we don’t have just as crazy and idiotic flaws in our legal system here…we do they are just different.

    To the other commenter: what ever leftist is there about this Judge…I think you need to join the march to restore sanity… Even in China I can’t image a judge allowing a child to be sued… Don’t try and make this about right/left politics when it’s clearly a case of an official of the state having a mental breakdown/ momentary insanity or what not…

    And this is also what puzzles me: even if the judge allowed the suit on the point of negligence, don’t you have any protection for children in your judicial system? How can a minor ( and in this case an extremely minor minor) ever be made to suffer a lawsuit.

    What about the ethical and psychological implications of telling a child that it has caused the death of another person? I simply didn’t have the imagination to ever think it possible before i read about this case…

    Well all the best, also to the innocent children

    Jonas, Copenhagen Denmark

  3. Dear Jonas: I only wish that this was just a case of “temporary insanity” on the part of an American jurist. But it’s not. It’s just another outrage in a long series of them that negatively impact the all-important status of children in decent society. And I said “leftist” deliberately; not to make a political slogan, but to point out the plain, blunt fact that these redefinitions of childhood derive from a leftist/secular philosophy that is completely at odds with traditional Christian morals. Whenever these outrages are initiated- whether by legislative action or judicial fiat- this inevitably proves the ultimate source.

  4. A four year old can’t make “reasonable” or “prudent” judgments about their own safety, let alone someone else’s. That’s why we don’t let them cross the street by themselves (or skydive, or bungee jump). At that age they are fearless (and clueless) about their physical environment. Justice I’m not sure most four year olds could “reasonably appreciate” the implications of running into a 25 year old man, a tree, an 87 year old woman or a moving car with their bicycle.

    Beyond risk and danger, a four year old has no concept of permanency of injury. They lose a primary tooth, another tooth grows in to replace it. A bandaid makes everything better. You cut their hair or nails, they grow back. Many six, seven or eight year olds think limbs will also grow back. The girl probably figured the hip fairy was going to come and give the old broad a new hip.

    I also wonder at what age was Juliette when our esteemed justice determined that she was “intelligent and mature” enough to be held responsible for her actions. Was he trying to extrapolate backwards to determine the maturity of four year old Juliet based on observing and interviewing six year old Juliet?

    Wooten needs to spend some time in a daycare, he sounds like the type who has only seen children in pictures or when his loathsome relative come over and their little “cretins” mess up his apartment.

    • Comments like yours make me either 1) really admire the blog/post/comment format because each commenter can expand on the theme to the benefit of future readers, or 2) make me wish I could re-write the post. Great points.

  5. The real answers to this question are “What’s the insurance coverage?” and “Is this covered by the policy?” In lawsuits, lots of things become clear when one follows the money.

      • Sometimes they do, but it’s about the location. If it’s not technically *on* the property insured, all insurance bets are off. If this was public sidewalk, it’s city property.

        I’d like to think my 5-yo daughter is pretty savvy, but running a bike into something, in her world, can’t possibly END anything, except perhaps that particular ride. Much less someone’s LIFE.

  6. I have a ridiculously long and detailed memory. I think I remember by third birthday party as it was during a family two week car vacation to West Virginia, a three day drive. And there are photographs of the event. Other than that, I just don’t remember much of anything before age five or six (kindergarten being a big deal). I’m just not sure anyone who’s in a time of life where they won’t have any memory of it can be deemed a cognizant adult. That part of childhood is essentially terra incognita and will remain so forever.

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