Children as young as 7 can assume the risk of their dangerous behavior

March 22, 2012

In tort law, which is concerned with negligent and intentional wrongdoing that causes injury or property damage, defendants often claim that the injured plaintiff was negligent in some way.  Another way a defendant might try to defend a personal injury action is to claim that the plaintiff “assumed the risk”.  Think of the jaywalker who refuses to consider traffic before stepping out into it or the drunk guest who decides to swan dive into the shallow end of a backyard pool.  These types of potential personal injury plaintiffs might well see their lawsuit shut down by an “assumption of the risk” defense.  In Georgia, assumption of the risk is a complete defense to negligence, much like the “last clear chance” defense is in a motor vehicle accident lawsuit.

So, is there an age at which children can legally assume the risk of their own dangerous behavior?  Yes.  Children as young as 7 can assume the risk IF the evidence demonstrates that the danger to the child was obvious, the child knew of the danger and was capable of appreciating the risks of such danger and the child voluntarily chose to engage in the behavior anyway, that is, the child decided to run the risk.

A recent example of this defense arose in the case of Admiral Insurance Company v. State Broadcasting Corporation, Nos. A11A1507, A11A1619, 2012 WL 745086 (Ga. Ct. App., Mar. 8, 2012).  The Admiral Insurance Company case involved an 11-year-old bright, straight-A honors student who accompanied his father to a fundraising event at a local park and jumped into the Oconee River more than 50 times (with and without a rope swing) while his father drank beer on the other side of the river.  As luck would have it, at the end of a long day of such activity, the child’s arm was severely injured on his last jump when someone tossed the rope swing towards him after he had already started his jump.

The local park defendants and their liability insurer claimed that the child had assumed the risk and moved for summary judgment on this ground.  (When a court grants a defendant summary judgment on a claim, it means that the case never makes it to a jury).  The trial court denied their motion but the Georgia Court of Appeals reversed, noting that even though the plaintiff was a “child of tender years, there is no legal bar to applying assumption of the risk, as a matter of law, to the conduct of a child between the ages of seven and fourteen” under the test set forth in the beginning of this post.  This case is interesting because, as has been discussed in other posts, a child must be at least 13 years old to be sued in tort for negligent or intentional acts that cause personal injury or property damage to another.

What you should know about the law and your 13-year-old

March 17, 2012

First, it’s important to remember that children of any age can be charged with juvenile delinquency.  A “delinquent act” is an act that would be a crime under local, state or federal law if committed by a person aged 17 or older, but does not include juvenile traffic violations.  (In Georgia, when a child turns 17, he or she is treated as an adult for purposes of criminal prosecution).

However, whether a child as young as 7 or 8, will be charged with a delinquent act will likely depend on the nature of the act and the policy or practice of the local district attorney in charge of prosecuting juveniles.  That said, children as young as 13 have been involved in juvenile delinquency proceedings in Georgia.

On your child’s 13th birthday, two important areas of law begin to apply to her. Thirteen-year olds can be sued, or held responsible in civil law for “torts”, which are negligent or intentional acts or omissions that cause harm to another person or to some property (such as personal injury or slander).  When they are less than 13, they have a defense of “infancy”.  In a 1992 Georgia Supreme Court case, two nine-year old boys who allegedly set fire to a gasoline can which caught fire and severely burned a 7-year old boy were too young to be sued for the injured child’s damages.  Other cases in which the children were too young to be held responsible for torts include a 12-year old male student who seriously injured a female student’s eye while on a school outing and a nine-year old boy who deliberately aimed a slingshot at another boy’s head and caused him to lose an eye.  However, had these children been 13 years old, they could have been held responsible by a civil lawsuit.

Note that as the parent, you cannot be held responsible for damages resulting from your child’s tort unless you negligently allowed your child access to a weapon or other inherently dangerous item with which your child would likely hurt someone (think guns, knives and the like) or you knew, because of previous actions, that your child was prone to this specific dangerous activity and you failed to prevent it.  Courts will look carefully at any known prior similar acts of your child to determine if they are similar enough to the current situation to impose liability on the parent for failing to prevent it.

Your child’s 13th birthday also ushers in his being treated as an adult in criminal law if he is charged with certain crimes.  Between their 13th and 17th birthdays, children who are charged with certain delinquent acts can be treated as adults.  They will be tried in regular adult criminal court (superior court, not juvenile court), and, if convicted, sent to a youth confinement unit in an adult prison until they turn 17, at which time they can be housed with adult offenders.  If there is adequate funding, they will receive some types of training, such as academic or vocational training, as well as counseling in substance abuse and violence prevention.

The delinquent acts that can get a juvenile sent to superior court are those that would be a crime if committed by an adult and are punishable by death, life without parole, or life in prison, such as armed robbery or arson. These types of offenses may be tried by either the juvenile court or the superior court. There are many reasons why you and your child might prefer that the juvenile court hear the case and it is important to try to keep the case in juvenile court.

Another path to adult criminal court is to be accused of committing one or more of the “seven deadly sins”:  murder, rape, voluntary manslaughter, armed robbery committed with a firearm, aggravated sodomy, aggravated sexual battery and aggravated child molestation.  The superior court has sole jurisdiction over a juvenile charged with committing one of these crimes.