[Tsundoku]

So much rampant idiocy out there, but this stood out today:

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http://www.news.com....0-1225945490166

Four-year-old girl can be sued: US judge

* From: AP
* October 30, 2010 12:46PM

SHE might have been too young for grade school, but a judge says a New York City girl was old enough to be sued over a bicycle accident that happened when she was four.

A Manhattan judge refused earlier this month to toss out negligence claims against Juliet Breitman.

She, her mother and others are being sued by the estate of a woman who said she was severely hurt when hit by bicycles that Juliet and a boy were racing down a footpath in April 2009.

The woman, Claire Menagh, died later that year.

Juliet was three months shy of five.

The judge says there's no evidence a child of that age couldn't appreciate "the danger of riding a bicycle into an elderly woman".

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I don't know where to begin ...

[HoosierDaddy]

Judge decides matters of law, jury decides matters of fact. Basically, meaning a judge can't throw it out for being frivilous if there is a law on the books, like negligence, whose elements are met by the act. That's how you do that. Also, a parent's negligence would go towards the child's action, not the child. So, basically, it'd be on the jury to not fuck it up. Which they generally won't.

[Mentalist]

I was sent that case by one of our profs

haven't read it yet, cuz it's the weekend

I believe it's the reasonable standard thing, though.

[HoosierDaddy]

1. Was there harm? Yes, injuries and eventual death.
2. What caused it? Children riding into an elderly woman on their bicycles.
3. Was there a breach of duty? Does a child/parent/ in re loco parentis have a duty to prevent them from harming others through irresponsible acts? Yes
4. Was the cause proximate? Was it proximate to death? Unknown. Facts unknown. Was it proximate to injury? Yes, but for the children ramming her, there would be no injury.
5. Was the breach of duty negligence such that it was proximate cause to the injury? Issue for the jury to decide.

All elements of a negligence case are met, thus a motion to dismiss cannot be granted. A motion for summary judgment can also not be granted because this judge obviously has no precedent in such a case. Thus, the show must go on to trial or settlement.

That's my guess.

This post has been edited by H.D.: 30 October 2010 - 08:04 AM

[Tsundoku]

H.D., on 30 October 2010 - 08:03 AM, said:

1. Was there harm? Yes, injuries and eventual death.
2. What caused it? Children riding into an elderly woman on their bicycles.
3. Was there a breach of duty? Does a child/parent/ in re loco parentis have a duty to prevent them from harming others through irresponsible acts? Yes
4. Was the cause proximate? Was it proximate to death? Unknown. Facts unknown. Was it proximate to injury? Yes, but for the children ramming her, there would be no injury.
5. Was the breach of duty negligence such that it was proximate cause to the injury? Issue for the jury to decide.

All elements of a negligence case are met, thus a motion to dismiss cannot be granted. A motion for summary judgment can also not be granted because this judge obviously has no precedent in such a case. Thus, the show must go on to trial or settlement.

That's my guess.

Like most other legal claims, legislation and George Lucas scripts, there should be a (6) that states something like - very roughly - could a "reasonable person" look at this and say "that's fucking stupid?", in which case it gets shot down. We have a thing here in Australia about "frivolous and vexatious" law suits that should be applied.

Say the parents told her not to ride on the footpath because she might hit someone, but (as we know) she did anyway. Have the parents completed their "duty of care" or does it mean they should have her on a leash? Say it is found to be the girls' fault because her parents told her not to do it but she did anyway, what the hell are the elderly victims' family going to get out of it? A garnish on her pocket money until she is 18??? Fuckwits.

Just because something meets some basic requirements in isolation, doesn't mean it's valid. My dog has 4 legs and a tail, my cat has 4 legs and a tail, therefore my cat is a dog. You should have to see the whole picture before letting shit like this get through and waste valuable court time. What about the age of legal responsibility or intent - or does that not apply in civil cases? I'll bet the ambulance chasers are licking their lips at this very moment.

What next? "Your child bumped into me in the supermarket and I spilled my drink all over my Armani suit, therefore you owe me for the expensive laundering?" No, I'll bet we can come up with even more stupid potential examples.

It's sad that the lady was injured, and later died (any link established?), but this one goes down into the "shit happens" book. Would I say that if it were my grandmother? I know I'd be mad as hell, but I'd eventually calm down and chalk it up to rotten luck. What I would NOT do is even THINK about suing a 4 year old kid, let alone going through the legal motions to actually do it. Those people should be publicly vilified (at least) as an example.

It's all just more evidence of the legal system being far removed from reality, but no-one pulls it into line because too many profit from it.

I like you H.D. (I'll kill you last), but in making Sombratopia, the lawyers will be the first up against the wall. OK, maybe in the first 10 groups up against the wall. Kiddie-fiddlers get the #1 spot.

This post has been edited by Sombra: 30 October 2010 - 08:42 AM

[HoosierDaddy]

If the legal system is anything, it does its utmost to be thorough. My answer to your "Be Fucking Reasonable" standard is that it generally is. I assume this is a case that is going to set precedent. If I had to guess, after this case precedent will be set that a child under the age of 5 who runs into a person on their bike will be found to be ACCIDENTAL, and thus, no NEGLIGENCE cases will be able to succeed from then on.

Therefore, every other single case that brings up this bullshit will be taken down at the LEGAL level, where a Judge has the power to do so, unlike a factual case. So, this is a case of getting sick to create a future antibody for all other such cases.

Does that help?

Edit: As an aside, I've built a vexatious lawsuit before. Stacked with every single piece of ridiculous court filings I could find. This is neither frivolous nor vexatious. It might be STUPID, but the law protects stupid people just like everyone else. Vexatious and frivolous, here at the least, are hard levels to meet because the legal system is so hellbent on protecting people's rights to remedy.

This post has been edited by H.D.: 30 October 2010 - 08:52 AM

[Tsundoku]

Ugh, I still hate that we have to even have a "Test" case to establish this. Seriously, do you think that was the intention of the plaintiffs when they brought the suit? Or the lawyer who took it on?

And what about something that differs from this only slightly? Like say a 6 year old kid - that wouldn't be covered by the "under 5" thing. Would they possibly defer to the age of legal responsibility for this? Could it possibly (remote, but bear with me) even have a bearing on a review of the age of legal responsibility in civil cases?

This post has been edited by Sombra: 30 October 2010 - 09:00 AM

[HoosierDaddy]

If I had to guess, one of the families had deep pockets, and another family is trying to take advantage of that and get a settlement out of court. It's ugly and terrible, but fair. And, there is a reason I don't practice.

Edit: 5 years was an example. The legal precedent would be set that a minor that age isn't responsible for his accidents riding a bike. So, it could be tossed out from say 3-9 if a judge wants to.

Perhaps this judge is up for re-election (some local judges are, horrifically enough, and I despise that with all of my being) and is trying to put is name out there. That is my most cynical thought.

This post has been edited by H.D.: 30 October 2010 - 09:06 AM

[Tsundoku]

H.D., on 30 October 2010 - 09:03 AM, said:

If I had to guess, one of the families had deep pockets, and another family is trying to take advantage of that and get a settlement out of court. It's ugly and terrible, but fair.

Dunno about "fair", I'd call it "extortion", when you pay a problem to just "go away" because even if you are in the right, some of the mud that will be flung during the process would stick or your life/work would be severely disrupted, and that is what people pay to avoid.

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And, there is a reason I don't practice.

That's right, you looked into the eyes of evil and spurned it. Just a moment ...

*makes phone call*

Just ignore the ninjas who should be exiting your place presently. We're good, right?

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Perhaps this judge is up for re-election (some local judges are, horrifically enough, and I despise that with all of my being) and is trying to put is name out there. That is my most cynical thought.

It's sad that this does not surprise me in the least.

[HoosierDaddy]

Missed the "What if the parents told the child not to do it" etc. question, and the child still did it. The child is never responsible, in a monetary sense. for their actions at that age. It is on the parents, because a child doesn't really have any legal duties at all. The duty would not have been breached there because the child would have been told not to do such a thing, after which the parents are clear to most degrees. Yes, it sounds stupid, but children do lots of really fucking stupid shit and the law must find a way to differentiate between shit that was done purposefully and done accidentally at the ADULT level. Let alone the level of idiot children.

Does the bike riding child who rammed the old woman deserve leniency? Fuck if I know, I don't know any of the facts of the case. Maybe the kid rammed the old person on purpose. I wouldn't put it past some shits to do such a thing. All I'm arguing here is that lynching of the court may be premature. Am I an apologist? Fuck yes, of course I am. I'll also be the first to hang their feet out to dry for fucking up.

[Morgoth]

Thankfully we've got a sane legal system where complicated questions of negligence in tort is not decided by people with no legal background.

Furthermore, I'm confident this case would've been thrown out right away as a child is not "prosessdyktig" meaning it cannot be sued. Sure, you could try to sue parents for negligence (which seemingly has not been done here), but how it would be negligent to let your kid of 4 ride a bicycle in the street is beyond me. So once again, the case would be thrown out for not fulfilling the demand of the lawsuit being... well.. not frivolous or too stupid to succeed.


The though of Jurys in a civil lawsuit still makes me shake my head in complete bafflement.

[HoosierDaddy]

Morgy, you paid no attention to the article if you don't think they sued the parents:

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She, her mother and others are being sued by the estate of a woman who said she was severely hurt when hit by bicycles that Juliet and a boy were racing down a footpath in April 2009.

Secondly, it wasn't on the street, it was on the side-walk where people walk regularly and bikes aren't supposed to be in lots of American cities.

This post has been edited by H.D.: 30 October 2010 - 09:34 AM

[Tsundoku]

@Morgy
I dunno mate, sometimes I think the legal system could use an injection of common sense from people of a nonprofessional background. Of course, unfortunately the jury system can't guarantee that those 12 people will all have "common" sense ...

[Morgoth]

H.D., on 30 October 2010 - 09:32 AM, said:

Morgy, you paid no attention to the article if you don't think they sued the parents:

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She, her mother and others are being sued by the estate of a woman who said she was severely hurt when hit by bicycles that Juliet and a boy were racing down a footpath in April 2009.

Secondly, it wasn't on the street, it was on the side-walk where people walk regularly and bikes aren't supposed to be in lots of American cities.

Ah, well then the case would be thrown out for the second reason I mentioned. Even if the kid purposefully hit the old woman with the indisputable motive to harm her, it would not be cause for suing of the parents unless they'd somehow used the kid as a proxy somehow, which would be impossible to prove either way I reckon.

[Morgoth]

Sombra, on 30 October 2010 - 09:32 AM, said:

@Morgy
I dunno mate, sometimes I think the legal system could use an injection of common sense from people of a nonprofessional background. Of course, unfortunately the jury system can't guarantee that those 12 people will all have "common" sense ...

Which is why we generally do not ask your average Joe to answer complicated legal questions in the same way that we don't invite them in for a complicated heart surgery or an overhaul of some electric system.

[HoosierDaddy]

So, if the child purposefully (indisputably) hit the woman (with motive to harm) they wouldn't be charged for battery? It's better to let kids beat the fuck out of people on purpose than this?

We are crossing wires, obviously. Because the above is just ridiculous and I don't think that is the actual law.

This post has been edited by H.D.: 30 October 2010 - 09:46 AM

[Morgoth]

H.D., on 30 October 2010 - 09:44 AM, said:

So, if the child purposefully (indisputably) hit the woman (with motive to harm) they wouldn't be charged for battery? It's better to let kids beat the fuck out of people on purpose than this?

We are crossing wires, obviously. Because the above is just ridiculous and I don't think that is the actual law.

No, it is to the extent that I've specified. However, there are special rules in regards to Child Services that would come into play here.

[HoosierDaddy]

Morgoth, on 30 October 2010 - 09:48 AM, said:

H.D., on 30 October 2010 - 09:44 AM, said:

So, if the child purposefully (indisputably) hit the woman (with motive to harm) they wouldn't be charged for battery? It's better to let kids beat the fuck out of people on purpose than this?

We are crossing wires, obviously. Because the above is just ridiculous and I don't think that is the actual law.

No, it is to the extent that I've specified. However, there are special rules in regards to Child Services that would come into play here.

Well, I can just bow to ignorance on my behalf then. The examples I brought up were obvious extremes in our system. I'd be interested in your take on negligence Morgy. Do you have it as a legal precedent at all?

[Morgoth]

H.D., on 30 October 2010 - 09:52 AM, said:

Morgoth, on 30 October 2010 - 09:48 AM, said:

H.D., on 30 October 2010 - 09:44 AM, said:

So, if the child purposefully (indisputably) hit the woman (with motive to harm) they wouldn't be charged for battery? It's better to let kids beat the fuck out of people on purpose than this?

We are crossing wires, obviously. Because the above is just ridiculous and I don't think that is the actual law.

No, it is to the extent that I've specified. However, there are special rules in regards to Child Services that would come into play here.

Well, I can just bow to ignorance on my behalf then. The examples I brought up were obvious extremes in our system. I'd be interested in your take on negligence Morgy. Do you have it as a legal precedent at all?

Do you mean as in stead of specified in an act?

The Scandinavian legal system is sort of a hybrid between the Anglo/American and the Continental system.

So, Tort is regulated by the Tort-act of 1961. There it's specified three base requirements: economic loss, negligence, and sufficient connection between negligence and the resulting damages (there are some objective exceptions and stuff, but they're not relevant here). The reach of the 3 main requirements have been specified in numerous supreme court verdicts, and several additional requirements connected to the three main ones have been added.

Does the girl fulfill all of these? Not really, as a kid she cannot be negligent in a legal sense. However, say her parents were claimed to have been negligent. They trained her for instance to attack pictures of little old ladies in order to get food.
- Is that negligent? One would think so.
- Was there sufficient connection? She probably did attack the old lady because she was trained to do so. Ergo, yes.
- Should they have seen the risk of this happening. One would think that if you train your 4 year old to attack little old ladies, she'll go ahead and do so.
- Was there an economic loss? That's a tricky one, but say at least that she acquired some medical bills as a result.

In this scenario the parents can be sued. If the above can be proven obviously. The child however cannot be sued, nor can criminal proceedings be taken against her because she is below 15. Children below 15 are under the more or less exclusive jurisdiction of Child Services.

So far so good.

[HoosierDaddy]

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However, say her parents were claimed to have been negligent. They trained her for instance to attack pictures of little old ladies in order to get food.

The difference being, in American law, this is not negligent at all. This would be absolutely purposeful, and the parents would be held liable for having their child to such a thing.

And, if is the first example, I'm even more interested in what IS NOT negligent.