A New York Judge has recently ruled that a personal injury lawsuit could be maintained against a four year old girl. In that case, a lawsuit was filed on behalf of Claire Menagh (then 87 years old) by her executor in New York County alleging that while walking on the sidewalk, she was struck by two infant children, age 4 and 5, who were also racing their bicycles on the sidewalk. At the time of the accident, the infants’ mothers were supervising the children while they rode their bicycles. As a result of the collision, Ms. Menagh sustained a hip fracture which required surgery. She died three months later of unrelated causes.

The Estate of Ms. Menagh filed suit against the two infant children and their mothers. In lieu of filing an answer, one of the infants who was four years and nine months old at the time of the accident filed a motion seeking to have the complaint dismissed. The attorney for the infant argued that as a matter of law, due to child’s age she was incapable of being found negligent in causing the accident (the technical term for this legal concept is non sui juris – meaning not his own master). New York Courts have recognized that infants under the age of four are conclusively presumed incapable of negligence. However, the Courts in New York have found that under certain circumstances infants over the age of four can be found negligent. In those cases where an infant is over the age of four, New York Courts have held that the infant should be held to a standard of care by what is expected of a reasonably prudent child of that age, experience, intelligence and degree of development and capacity.

In this case, the Judge noted that as the infant was over four years old a factual record must be developed regarding the maturity and experience of the infant. As no discovery had been exchanged, he denied the motion to dismiss. However, while the in the Judge did not dismiss the infant, he did indicate that depending on how the facts regarding this case were developed (e.g. the maturity of the child, the child’s experience, etc.), it was possible that the child could be dismissed later in the case.

Across the river, New Jersey Courts differ slightly with regard to whether or not an infant may be found negligent in a personal injury matter. The Courts have found that there is a rebuttable presumption of incapacity for infants less than seven years old. However, an infant could be found negligent despite being younger than seven depending on the infant’s capacity to exercise care under the circumstances. See Cowen v. Doering, 111 N.J. 451 (1988).

— Erik Anderson, Esq.

Reardon Anderson represents the interests of businesses, insurance companies and individuals throughout New Jersey and the metropolitan New York City area. Please visit our website at to learn more about our firm.


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