“When you’re talking about young children, you’re talking about a subjective standard - not an objective standard,” [said Quinnipiac University law professor William Dunlap]. “The child is not required to conform his behavior to the way a reasonable adult is expected to behave.”...Is there such an animal as a "prudent 8-year-old boy"? I guess it means a boy as prudent as an 8-year-old can be... or is it a child as prudent as an 8-year-old boy can be? I'm not a Connecticut torts professor. I don't know how specific the reasonable person standard can be. Is the jury allow to say, maybe a prudent 8-year-old girl would no better than to leap into the arms of a 50-year-old-aunt, but 8-year-old boys, even at their most nearly prudent, wouldn't know any better than to leap?
Judge Edward Stodolink instructed the jury to consider what a “prudent” 8-year-old boy would have done when his aunt came to his birthday party. “Prudent,” the judge emphasized.
But what was the role of the plate of hors d’oeuvres? The linked article is a tad deceptive in its teasing. It wasn't that a plate of hors d’oeuvres was the more proximate cause of the fall that broke the aunt's wrist. It was that the jurors might have been put off by her testimony complaining about the difficulty she still has holding a plate of hors d’oeuvres. I guess she should have envisioned something less snooty on the plate. A plate of cheeseburgers.
ADDED: Isn't "prudent 8-year-old boy" an objective standard?
AND: "The aunt who sued her nephew for damages said that she was forced to do so by Connecticut law when the insurance company only wanted to pay her one dollar."
पोस्ट्स
४८ टिप्पण्या:
does an eight year old owe a duty?
I think not. this one is easy
Not nearly enough mockery of this crazy lady who sued her 8 year old nephew. If she had won, who would she have collected her judgment against? Would she garnish the future wages of the 8 year old?
She put the loco in the in loco parentis doctrine.
The question I have about this case, not answered at the link, is whether the Aunt could have been covered by the child's parents' homeowners liability insurance. If not, why not?
Instead of having trouble lifting a plate of hors d'oeuvres, she should have said lifting the plate of pork for the homeless at the shelter she worked at was agonizing.
Envisioning someone at a sparkling Mid-town party struggling to balance a plate of foie gras and caviar while Cole Porter plays on the piano doesn't engender sympathy.
The speculation in the comments of the article is that the aunt was suing in order to get the money from the parent's homeowner's insurance, possible with the parent's approval.
btw -- I don't doubt she has pain, and her life has been changed by a broken wrist.
Sometimes, however, no one is to blame and life is unfair. You can dip your foot in the pool -- but you can't have a swim. You can feel the punishment but you can't commit the sin.
Something tells me that that nephew won't be going to her house any time in the future. My guess is she'll be disinvited from most family events.
"Not nearly enough mockery of this crazy lady who sued her 8 year old nephew. If she had won, who would she have collected her judgment against?"
My guess is the home owners or renters insurance policy of the parents.
Yipes, professor. Horrible typo in there: "would no better than to leap". Please fix it! My eyes! My eyes!
"Isn't "prudent 8-year-old boy" an objective standard?"
Try establishing "prurient 14-year-old boy" as an objective standard.
I am Laslo.
Ignorance is Bliss said...
The speculation in the comments of the article is that the aunt was suing in order to get the money from the parent's homeowner's insurance, possible with the parent's approval.
Her lawyers issued a statement saying she was forced into this to recover medical expenses. Presumably this means her medical refused to pay saying their homeowners insurance should. I have no independent knowledge this is true.
It still doesn't explain how she ended up with 127k in damages. My son went through three surgeries as a child each of which was vastly more involved than wrist surgery and the combined total allowable was less than this.
Yes. It's an objective standard. Whoever said it wasn't should be embarrassed.
"The question I have about this case, not answered at the link, is whether the Aunt could have been covered by the child's parents' homeowners liability insurance. If not, why not?"
That's exactly what the money-grubbing aunt was after. If the parents hadn't had homeowners' insurance, she wouldn't have sued, unless the 8-y-o has a trust fund. Liability insurance only pays when the homeowners are liable - which, in this case, the insurance company apparently wasn't willing to concede unless a jury said so. They rightly calculated that was unlikely and sent their lawyers in to defend the parents against the payout.
There's a small chance that the decision to sue was collusion between the parents and the aunt to get the insurance company's $$$. In my third year of law school, I injured myself rather badly and conspicuously in a friend's home the night before a round of law firm job interviews. In each interview, after I explained the bandages, I was asked whether I planned to sue. Each time, I'd say, "No, this was my best friend's house, and I knew as much as she did about the risk." Then I got a window into whether I wanted to work at this particular firm by whether they nodded and changed the subject, or wiggled their eyebrows at me and encouraged me to sue anyway since, after all, "Everyone could benefit!"
It could have been a plate of kitten filets, and it still wouldn't have lost her as much sympathy as did the very idea of suing your 8-year-old nephew for hugging you.
Then I got a window into whether I wanted to work at this particular firm by whether they nodded and changed the subject, or wiggled their eyebrows at me and encouraged me to sue anyway since, after all, "Everyone could benefit!"
I like that story. Everyone benefits from the interviewers' reactions too! :)
Her lawyers issued a statement saying she was forced into this to recover medical expenses. Presumably this means her medical refused to pay saying their homeowners insurance should. I have no independent knowledge this is true.
My understanding -- with my insurance policy at least -- is that the Insurance Co will go after whomever is responsible if I am injured and someone else is to blame. I do get questionnaires after each minor event in my life, and they all ask a variation on the question Were you to blame? Making the injured seek out the damages themselves can only backfire, as in this case. If the insurance company were suing the boy, the story would have no virality, as Insurance Company Greed is just par for the course.
Cynic's take: The kid and his parents are either looking for some insurance money too or looking the other while auntis tries this approach.
Reasonable take: Great family dynamic...
Your homeowner's insurance in most states should have (E...personal liability) which includes guests at your home and libel protection.
Your insurance company wants to find out about your exposures: Rotting decks and/or your blog, in most cases.
Too much risk and the underwriter will flag your policy and tell you to find another policy within 30-90 days if it's urgent, or they won't renew the policy.
All of the obvious aside, why was the eight year old jumping on people?
Like others, I'm guessing that the family was trying to figure out how to cover the medical expenses involved and decided that the homeowner's insurance policy would be the way to go.
“Prudent,” the judge emphasized.
Fortunately the jury ignored his lame attempt to influence their decision.
Sometimes stuff happens. It is not always someone's fault. The person to whom it happens is not always entitled to compensation. Back when people took some responsibility for their own lives, this was generally understood.
Her lawyers issued a statement saying she was forced into this to recover medical expenses. Presumably this means her medical refused to pay saying their homeowners insurance should. I have no independent knowledge this is true.
Well, if true, isn't that what subrogation law is for?
In any event, the medical insurance would pick up hospital and doctor bills and maybe physical therapy costs. Everything else, lost wages,pain and suffering, life impact, etc., the medical insurance carrier would have nothing to do with.
ADDED: Isn't "prudent 8-year-old boy" an objective standard?
Maybe they imprecisely invoke "subjective" insofar that no 8-year-old boys can serve on a jury?
Kids make their first communion at seven. Not eight. Seven. If you're old enough to sin, you're old enough to sue......I see an interesting plot line when the Kardashian kid turns seven.
I know a ten-year-old who demands to jump on people, including his fifteen-year-old brother. The youngster is polite about it, asking first.
I saw this story last night and thought, "What a horrible, horrible woman." I guess she'll have to learn to hold her plate of canapes with her other hand, or put down her drink when she wants to nibble on finger food.
"No better?"
I assume there's insurance, so the question is why wasn't this just settled? Why a trial?
why wasn't this just settled? Why a trial?
Presumably, the insurance company wouldn't settle because it thought there was no liability and it didn't owe anything. Would you have advised your client to settle on these facts, if you were the lawyer for the parents and/or insurer?
I don't like the pushing of the idea that it's normal for an eight year old to jump on people. Regardless of whether or not this woman was entitled to compensation, comments about how "kids will be kids" in relation to this are misguided.
Ann Althouse said...Ann Althouse said...
I assume there's insurance, so the question is why wasn't this just settled? Why a trial>
If the child's father's insurance found he the alleged loss wasn't covered by his policy they'd decline to defend him and won't allow subrogation of the claim/any payments, so the father'd be on his own and out of pocket, so going to trial could have been the better bet.
The article I read yesterday mentioned that the kid's mother recently died--it didn't say but I assume the mother was the plaintiff's sister. Should make for an interesting Thanksgiving, anyway!
Yes, there was probably insurance, but it may not have covered the claim for a host of reasons we don't know about.
Usually, though, the evidence of insurance is not admissible. The judgment would have been against the little 8 year old.
If she had sued for the out of pocket expenses her health insurance didn't pay the insurance company would most likely have settled quickly. A jury asked to award $127,000 for a wrist injury caused by an eight year boy was not a smart idea. She got was she deserved.
My husband's parents are super sue happy. When my alcoholic (and probably drunk) MIL tripped over the lines in my FIL's hospital room, they sued the hospital for her injuries and loss of consortium, which was not something I wanted to think about wrt my FIL and MIL, although FIL wanted to talk about that sort of thing a lot.
They were super ticked off that Medicare subrograted and I thought, But FIL! You are the smartest man in the world! You didn't know this would happen?
I bring this up to preface the story that when my nephew, who is mildly retarded, broke MIL's collarbone, there was no discussion of suing. Now I am surprised that there was not.
Case reminds me of the first case we studied, on the first day of law school 28 years ago. Garrett v. Dailey. Little 5 year old Brian Dailey was visiting elderly Naomi Garrett, she was entertaining some of her friends. Brian acts like he is going to hold her chair for her, and, intending a joke like he saw on TV, pulls the chair out at the last second and she falls and hurts herself. She sues him for civil battery. The issue was on the boundary for the element of intent - battery being an intentional tort. The court held that an objective standard applied and the element was satisfied if to a reasonably prudent person the result was a substantially certain outcome of the act.
Memory courtesy of the magic of the Socratic Method.
My neighbor's father's dog bit my son. The dog wasn't provoked, the bite didn't break the skin, but my son was traumatized, and my wife was furious. After she calmed down, we agreed that this was just an unfortunate incident (the owner wasn't being reckless, it was just bad luck). While we reported this to the police, we declined to press charges, the dog was monitored for signs of rabies (turned up negative), and my son went to the doctor's to confirm that he was fine.
My insurance wanted the dog owner to pay for the doctor's visit. I protested, arguing that this was just a bad luck situation, and they ended up paying. How could this HR exec not get her insurance to pay for her wrist?
This is why people have such hatred and contempt for lawyers. Its one thing that the aunt is a greedy selfish bitch, the legal profession enabling her (for a cut) is worse.
Aunt was going for part of the kid's inheritance from his dead mother.
Special place in hell for her.
"I don't like the pushing of the idea that it's normal for an eight year old to jump on people."
He was jumping into her arms (I think during her visit to his birthday party). It wasn't a horseplay incident, he wasn't lying in wait or anything like that. He was excited to see her, yelled "yay its auntie!" and rushed up to her and jumped into her arms.
What were the relative sizes of the kid and the woman? Maybe he's a little too big to be jumping on people, and maybe she's a little old lady?
A "reasonable man" standard is a piece of legal mythology that we spin embuing such a person with foresight and wisdom that is as rare as unicorns. A prudent 8 yr old boy isn't mythology. It's fiction. And not Goldfinch fiction. More like Hillary what-I-did-wth-those-emails-was-perfectly-legal fiction.
-Krumhorn
One of my loveliest memories is my 3 year old nephew leaping into my arms after I hadn't seen him for a while. By 8 he absolutely did not want anything to do with hugging and kissing his aunt.
This woman has to be a complete f...ing b..ch, and the jury probably thought so too.
He was jumping into her arms (I think during her visit to his birthday party). It wasn't a horseplay incident, he wasn't lying in wait or anything like that. He was excited to see her, yelled "yay its auntie!" and rushed up to her and jumped into her arms.
Yeah, he's not three. An eight year old should know not to jump into people's arms unless explicit permission has been granted and the person is poised for the catch. The average eight year old boy is over four feet tall and weighs 50-60 pounds.
Hey girl, here - catch this bag of cement - ha ha...
Broke your wrist? What a pussy...
That story is a lousy piece of journalism (I would say it's a lousy piece of shit but I don't use language like that).
First, the story says:
"[The plaintiff, who] claimed the 8-year-old boy was negligent when he jumped in her arms, knocked her down and broke her wrist, testified last week the injury made it hard for her to hold a plate of hors d’oeuvres.
"At least one juror wrinkled her nose at that explanation.
“'We just didn’t think the boy was negligent,' said the juror, who declined to be identified as she left the courthouse."
There's NO BASIS given for thinking that the plate of hors d’oeuvres played ANY role in the jury's decision, other than an alleged "wrinkled nose".
Second, the reporter ignores the significance of the plaintiff being from Manhattan. This trial was in Bridgeport, CT. Unless things have changed a lot, Bridgeport is a blue collar, ethnic city. I'm not saying a Manhattanite couldn't get a fair trial in Bridgeport, but if you have your testimony ghost-written by Tom Wolf (the one who wrote Bonfire Of The Vanities, not the one who wrote Look Homeward Angel), you shouldn't bank on a sympathetic jury.
She had to sue in order to get the homeowners insurance to pay her medical bills according to her attorneys. We had a trampoline, medical insurance refused to pay ( a broken finger, a sprained ankle) and made the people go after our homeowners insurance, that may be the case here. We no longer have a trampoline.
I smell bullshit. The woman has health insurance, presumably. If the health insurance was after the homeowners' that should be settled without a trial. If the facts are true, the heath insurance should pay and that's that. I strongly suggest she was after pain and suffering. The homeowners was not about to pay that and the health insurance has no obligation.
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