1. WEIRD CASES
“Lawyers, I suppose, were children once” observed Charles Lamb in an 1823 article called
The Old Benchers.
But when they were children, could they have been sued?
Not if they were mere toddlers, but times change and so too does the American appetite for
litigation.
Juliet Breitman is being sued in New York, and her main difficulty in court will trying to follow
the legal arguments as she’s only four years old.
Occasionally in court, witnesses do things like giggle or cry. They have even been known
sometimes to try to clamber out of the witness box. One or two witnesses have even fallen
into a nap or spoken to invisible people in an imaginary world. It would be rare, though, for
the same witness to exhibit all these proclivities but that is a possibility if a four-year-old has
to appear as a defendant.
The case arises from an incident in 2009 when two young mothers were out in Manhattan
with their young children Juliet Breitman, 4, and Jacob Kohn, 5.
nd
The children were racing their little bikes on the pavement on East 52 Street. It was the East
but Juliet was not the sun – she was more like a meteor and she struck an 87-year-old
woman called Claire Menagh.
Ms Menagh was, according to the writ, “seriously and severely injured” and suffered a hip
fracture. She died three months later but of unrelated causes. Her estate then sued both the
children and their mothers for negligence.
In a preliminary judgment, Justice Wooten of the Supreme Court of the State of New York has
ruled that Juliet, although only four, was open to be sued in a full legal action.
Juliet’s lawyer is James P. Tyrie. A society in which four-year-olds have lawyers isn’t at ease
with itself but if you’re sued what’cha gonna do? Mr Tyrie argued that Juliet was not engaged
in an adult activity and was, at the material time, merely “riding her bicycle with training
wheels under the supervision of her mother”.
He postulated that she was too young to be sued for negligence. He cited a 1946 precedent
to show that infants under the age of four are “conclusively presumed incapable of
negligence”
But Juliet’s legal downfall was that she wasn’t “under four” she was four years and 36 weeks.
So she is mature enough to stride into a world of legal pain.
Judge Wooten ruled that for infants above the age of four, “there is no bright line rule”
excluding them from being sued, and in considering the conduct of an infant in relation to
other people or their property, “the infant should be held to a standard of care” appropriate to
“a reasonably prudent child of that age, experience, intelligence and degree of development
and capacity”.
Juliet’s lawyer had also argued that she shouldn’t be liable as her mother was present but
Justice Wooten rejected that argument. He said a parent’s presence alone “does not give a
reasonable child carte blanche to engage in risky behaviour such as running across a street”.
These articles were published by The Times Online as part of the weekly column written by
Gary Slapper

2. A parent alone might be liable if they had instructed a four-year-old to do something
dangerous but that wasn’t the case here.
If four-year olds are going to feature as defendants in America’s law courts that legal system
might need to train more lawyers to cope with the work as there are now over 21,490,458
people under five in the United States and many of them are prone to knock into people and
property.
The precedent could generate all sorts of new toddler dialogues.
Q “What do you want to do after you leave kindergarten?”
A “I want to sell enough painted potato prints to pay off the damages I owe”
Of course if toddlers are appearing as defendants perhaps they should be able to engage
child lawyers. Some bright young things have anticipated this. In Brazil, a couple of years
ago, Joao Victor Portellinha passed his law school entrance examination when he was eight.
It’ll soon be time for Bugsy Malone in the law courts.
Gary Slapper is Professor of Law, and Director of the Law School at The Open University. His
book Weird Cases is published by Wildy, Simmonds & Hill
These articles were published by The Times Online as part of the weekly column written by
Gary Slapper