New York judge puts the brakes on boy and girl racers from the tender age of four

Wonder if I'll need liability insurance.

Ever been run down by a brat on a bike?

Victims (or their relatives) know how to deal with the little buggers in New York. They can sue sue them.

Alf missed this gratifying news at the time it was published – 28 October last year – but he has found it among the best-read items of 1010 now being highlighted on the NYT”s web-site.

And it says – oh joy – that a judge has ruled a four-year-old can be sued.

Those hand-wringing tossers at the Children’s Commissioners’ office and other assorted wankers would ensure such a thing can’t happen in this country.

Remember when a select committee recommended that a bill to allow children as young as 12 to be held criminally responsible for serious crimes should not proceed?

The private member’s bill of NZ First MP Ron Mark sought to lower the age at which children could be held criminally responsible for serious crimes from 14 to 12, arguing that young offenders were becoming increasingly violent. The original bill provided for children as young as 10 to be held accountable, but Mr Mark later agreed to change it to 12.

Things have changed somewhat under your National Government and 12 and 13 year olds who commit very serious crimes can now be referred to the Youth Court.

Until now, the Youth Court has dealt only with those aged from 14 to 16.

However from 1 October, 12 and 13 year olds who commit crimes such as aggravated robbery, arson and serious sexual assaults will now also be dealt with by the court.

Things remain far from ideal. The maximum jail term a Youth Court judge can impose was doubled, but only to a pathetic six months.

No provision is made for a good caning.

But the New York judge cited cases dating back as far as 1928 when he ruled that a young girl 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.

The ruling by the judge, Justice Paul Wooten of State Supreme Court in Manhattan did not find that the girl was liable. But it did permit a lawsuit brought against her, another boy and their parents to move forward.

The suit that Justice Wooten allowed to proceed claims that in April 2009, Juliet Breitman, 4, and Jacob Kohn, 5, were racing their bicycles, under the supervision of their mothers, Dana Breitman and Rachel Kohn, on the sidewalk of a building on East 52nd Street. At some point in the race, they struck an 87-year-old woman named Claire Menagh, who was walking in front of the building and, according to the complaint, was “seriously and severely injured,” suffering a hip fracture that required surgery. She died three months later of unrelated causes.

Her estate sued the children and their mothers, claiming they had acted negligently during the accident. In a response, Juliet’s lawyer, James P. Tyrie, argued that the girl was not “engaged in an adult activity” at the time of the accident — “She was riding her bicycle with training wheels under the supervision of her mother” — and was too young to be held liable for negligence.

This Tyrie bloke also cited court decisions that an infant under the age of 4 is conclusively presumed to be incapable of negligence.

But Justice Wooten declined to stretch that rule to children over 4.

He rejected a motion to dismiss the case because of Juliet’s age, noting that she was three months shy of turning 5 when Ms. Menagh was struck.

Accordingly she was old enough to be sued.

Tyrie had also argued that Juliet should not be held liable because her mother was present.

But Justice Wooten – who strikes Alf as being a thoroughly wise fellow – disagreed.

“A parent’s presence alone does not give a reasonable child carte blanche to engage in risky behavior such as running across a street,” the judge wrote. He added that any “reasonably prudent child,” who presumably has been told to look both ways before crossing a street, should know that dashing out without looking is dangerous, with or without a parent there. The crucial factor is whether the parent encourages the risky behavior; if so, the child should not be held accountable.

In Ms. Menagh’s case, however, there was nothing to indicate that Juliet’s mother “had any active role in the alleged incident, only that the mother was ‘supervising,’ a term that is too vague to hold meaning here,” he wrote. He concluded that there was no evidence 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.”

Alf would like to see this sort of judicial approach extended to the brats in this country who create all sorts of mayhem, including bashing their teachers, knowing full well that our namby-pamby legal system will let them get away with it.

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