Probably it would come down to a factual matter, and so anything might be
proved, but it probably would not be hard to argue that to an 87 year old
woman (who'd been around the block a few times, literally and figuratively,
and perhaps on a tricycle long ago 82 years before) there would be little
about a 5 year old on a tricycle that would not be known and obvious,
including a playful and preoccupied child on a tricycle as a feature of the
sidewalk environment. And she, of course, would know by that time of life
what the consequences to her could be. That is, chances are she in fact well
appreciated the nature of the risk, much better than the 5 year old likely
did. 

Now if the 5 year old had pulled a gun and shot her . . .  . Quite
different. Or if the child fell out of the sky on her, so that, in fact, she
did not deal voluntarily with him. Or if she had dementia and could not, in
fact, appreciate the risk, much less assume it.

And -- perhaps a great case for proximate causation in the determination of
legal fault. That the child caused the injury satisfies only one element of
legal causation. The question is whether this child reasonably could foresee
the risk of unreasonable harm, posed by his behavior on this, and other, old
ladies, or men, or others in general, at the specific point in time when he
decided to engage in this specific behavior -- turn his tricycle the wrong
way or "step on the gas" or look a different direction.   

All NYC will await a fact finding, should it ever go to trial.




-----Original Message-----
From: Academy of Legal Studies in Business (ALSB) Talk
[mailto:[log in to unmask]] On Behalf Of Storch, Robert
Sent: Sunday, October 31, 2010 5:46 PM
To: [log in to unmask]
Subject: Re: Things I really hate...

The plaintiff didn't voluntary choose to be around a 5 year old nor did she
know and appreciate that the 5 year old would be drag racing her tricycle
down a public sidewalk where the little old lady was walking.  Between the
child who caused the harm and the innocent old lady, i think the law should
favor the most innocent party and therefor the kid should pay for the damage
she caused.  Parents have a duty to supervise their kids and teach them
right from wrong.........and drag racing down a public sidewalk is clearly
wrong.
________________________________
From: Academy of Legal Studies in Business (ALSB) Talk
[[log in to unmask]] On Behalf Of James A. Bryant
[[log in to unmask]]
Sent: Saturday, October 30, 2010 3:04 PM
To: [log in to unmask]
Subject: Re: Things I really hate...

It certainly does. Should be dismissed on a motion.

James Bryant

>>> Virginia Maurer 10/29/10 3:55 PM >>>
I hate to say this, as I approach 64 (Will you still need me? Will you still
feed me?) but doesn?t being in the presence of a 5 year old constitute
assumption of the risk?

From: Academy of Legal Studies in Business (ALSB) Talk
[mailto:[log in to unmask]] On Behalf Of Michael Katz
Sent: Friday, October 29, 2010 11:42 AM
To: [log in to unmask]
Subject: Re: Things I really hate...

Stupid legal decisions
*********************
Manhattan Judge Rules 4-Year-Old Biker Can Be Sued for Negligence

A Manhattan judge ruled that a 5-year-old girl accused of running down an
elderly woman while riding her training-wheels-equipped bike down East 52nd
Street nearly two years ago can be sued for negligence. The lady the young
girl hit suffered a hip fracture and died. According to New York law, kids
under the age of 4 are presumed incapable of negligence, but this girl was
already a few months past her 4th birthday at the time of the incident. So,
time to grow up.
[NYT<http://www.nytimes.com/2010/10/29/nyregion/29young.html?hp>]


Michael A. Katz, J.D.
Delaware State University
Accounting, Economics & Finance Department
Bank of America Building
1200 N. DuPont Highway
Dover, DE 19901
302-857-6918 (O)
302-857-6924 (F)
[log in to unmask]