Special Rules Where the Victim Is a Child in California

Under the age of five

An act which constitutes negligence on the part of an adult does not necessarily constitute negligence when committed by a child of limited judgment, discretion and experience. (Bowdoin v. Southern Pacific Co., 178 Cal. 634.) Minors under the age of five are, as a matter of law, deemed incapable of negligent acts, i.e., failing to exercise reasonable care under the circumstances. (Christian v. Goodwin (1961) 188 Cal.App.2d 650.)

In People v Berry (1991) 1 CA 4th 778, the defendant’s dog killed a young child. The defendant dog owner was charged with keeping a mischievous animal that caused death, a felony per California Penal Code section 399. The defense was that there was no proof that the child acted with due care. The court held that no such proof was required where the child is a minor under age five, because children that young are not legally capable of acting with reasonable care toward a dog. 

“The proposition that ‘An infant may be so very young that no negligence may legally be imputed to him’ [citation], is predicated on the principle that a child of very early years is ‘incapable of realizing that his heedless conduct might foreseeably lead to injury to another which is the essential capacity of mind to create liability for negligence.’ [Citation.]”  Christian v. Goodwin (1961) 188 Cal.App.2d 650, 652- 654, as quoted in People v Berry (1991) 1 CA 4th 778.

Also see Greene v Watts (1962) 210 CA2d 103 (young child may not be capable of assumption of risk or contributory negligence in dog bite case) and Witkin, 6 Summary of California Law (9th Ed.), “Children — Duty Owed by Child,” sec. 806, pp. 160 et seq.

Obeying the directions of parent

Minors acting in obedience to parents’ directions are, as a matter of law, deemed incapable of being found negligent. 

Proving negligence when the minor is too young to testify

When there is a substantial probability that a defendant’s negligence was a cause of the injury, and when such negligence makes it impossible as a practical matter for the plaintiff to prove proximate causation conclusively, it is appropriate to shift the burden to the defendant to prove its negligence was not a cause of the injury (i.e., in those circumstances, the burden is more appropriately borne by the party with greater access to information). Haft v. Lone Palm Hotel (1970) 3 Cal.3d 756, 774, ftn. 19. In Haft, the decedents were found dead in the bottom of a hotel pool. Nobody had witnessed them drown, but the hotel operators had failed to comply with several safety regulations regarding pools. 

Liability of day care center

Every year, a substantial number of children are bitten by dogs at day care centers across the country. Some jurisdictions forbid dogs from being in day care centers. Even if it is not forbidden, it seems clear that is negligent to permit a dog to freely wander among children of tender years. Some day care centers have required parents to sign a release that purports to exculpate the center from its own negligence. (See Gavin v. YMCA (2003) 131 Cal.Rptr.2d 168.) The Gavin court held that such agreements are void as against public policy.

When liability of minor is imputed to parent

Minors who commit intentional torts may be held civilly liable for the resulting damages based on the usual principles of law. In some cases, the minor’s parents also may be held liable up to a certain monetary limit. Civil Code section 1714.1 provides:

1714.1.  (a) Any act of willful misconduct of a minor which results in injury or death to another person or in any injury to the property of another shall be imputed to the parent or guardian having custody and control of the minor for all purposes of civil damages, and the parent or guardian having custody and control shall be jointly and severally liable with the minor for any damages resulting from the willful misconduct.

Subject to the provisions of subdivision (c), the joint and several liability of the parent or guardian having custody and control of a minor under this subdivision shall not exceed twenty-five thousand dollars ($25,000) for each tort of the minor, and in the case of injury to a person, imputed liability shall be further limited to medical, dental and hospital expenses incurred by the injured person, not to exceed twenty-five thousand dollars ($25,000).  The liability imposed by this section is in addition to any liability now imposed by law

The limit is adjusted upwards every two years. In 2001, for example, the limit was $28,844.00. (See the calculation by the Judicial Council.)

When liability is imputed to the parents and does not result from a willful act on the part of an insured person, an insurer may have to pay on the parents’ behalf, but not more than $10,000.00:

(e) Nothing in this section shall impose liability on an insurer for a loss caused by the willful act of the insured for purposes of Section 533 of the Insurance Code.  An insurer shall not be liable for the conduct imputed to a parent or guardian by this section for any amount in excess of ten thousand dollars ($10,000).