Legal Commentary

I had just started grading what seems like hundreds of exams, and I got to thinking about contractual capacity.  Okay, thinking about contractual capacity is sort of like grading, so I can take a break, right?  Okay then. Contractual capacity is typically thought of as the ability to understand the nature, purpose and consequence of the arrangement- are you capable of understanding that what you are entering into is a contract?  The law chooses to protect those lacking capacity from entering into binding contacts, and in the case of one such group, our minors, we presume that they lack capacity.

So why the difference in tort law?  A recent New York case got some ink about a month ago when Justice Paul Wooten in Manhattan ruled that a little girl named Juliet who was accused of running down an 87 year old woman with her training-wheel encumbered bicycle on a NYC Manhattan sidewalk two years ago could be sued for negligence. 

Juliet and her accomplice were riding their bikes on the sidewalk and ran into this elderly woman who was leaving her building.  The elderly woman died three months later, of unrelated causes, but it?s still sad and it?s still not a great fact for little Juliet.

Juliet was, at the time of the incident, 4 years and 9 months old [or as my little daughter would say 4 and ¾ - I wonder at what point do we stop giving our age including quarter years?]  Her lawyer argued that infants under the age of 4 are non sui juris, or incapable of negligence as a matter of law. Justice Wooten declined to stretch the non sui juris rule to kids over 4, and after all, little Juliet was virtually 5. 

Keep in mind that the ruling by Justice Wooten did not find that the little girl was liable, but merely permitted a lawsuit brought against her, another boy and their parents to move forward.

So my question to you all is whether 4 and ¾  years is old enough to be sued for negligence?  Little Juliet couldn?t enter into a binding contract yet.  She probably can?t even get a library card, depending on the relevant library rules [in my town kids need to be able to write their name in legible cursive- I?m lucky they even gave me a card.]  Meanwhile, I?m keeping my kids firmly on the playground blacktop populated only by other little kids and brave parents, to preserve my assumption of the risk defense.