Negligence of the Child in Child Accident Cases

Washington's law of comparative negligence means that the proportionate share of fault of all potential negligent parties must be considered, even if it involves the conduct of a child. This means a child can be held negligent and therefore wholly or partially responsible for the child's injuries and damages. In Washington, the issue of the child's degree of negligence may also be called "contributory negligence." But there are certain limitations when it comes to accidents and injuries involving negligent children. First, the law in Washington is that children under the age of 6 years cannot be held negligent as a matter of law. The Washington State Supreme Court has decided that a child under age 6 does not have the mental capacity to be negligent. This means that anytime a child under 6 years of age has a legal claim for injuries caused by an accident, that child is deemed fault-free for purposes of deciding which parties negligently caused that child's injuries.

For children who are 6 years of age and older, they may be deemed negligent and thus legally responsible for their own injuries. But there is one important difference. In Washington, children are not to be judged by the same standards that apply to adults. We previously defined the negligence standard for adults as the failure to exercise ordinary care under the same or similar circumstances occurring at the time of the injury or the accident. However, for children the negligence standard is defined much narrowly. A child is negligent if that child fails to exercise the ordinary care that a "reasonably careful child of the same age, intelligence, maturity, training and experience" would exercise under the same or similar circumstances. This is a very important distinction. It means that a 7 year old child cannot be judged based on the same standards that might apply to a 10 year-old child.

The standard of negligence for children is also based heavily on the child's individual characteristics and traits. Conceivably, the actions of a special needs or mentally disabled child should only be judged based on the expected reasonable conduct by another child of the same age and/or intellectual capacity. The same goes for children who may be advanced or high functioning. High achieving children with excellent grades should only be judged by the expected actions of other children similarly situated.

Note: Price v. Kitsap Transit, 125 Wn.2d 456, 886 P.2d 556 (1994).