• David Omer

Children, Negligence, and the Rule of Sevens

Rule of Sevens? Huh?

Last week your family ventured out to the neighborhood pizza place to grab some dinner. As you walked to your table, your two kids, ages nine and six, were walking in the front of the group. Nobody noticed the puddle of melting ice on the floor, and in a moment of tragedy only befitting a hypothetical legal scenario, both of your kids slipped and fell to the floor.

Yikes! What does this mean?

Now. In most states this little bar exam essay prompt would only contemplate whether the restaurant was negligent, primarily by looking at whether the business did what any reasonable restaurant would have done in order to eliminate the hazard. Did they put out Wet Floor Signs? Were there measures taken to clean up the spill? Had the liquid even been on the floor long enough to put the staff on notice that there was a problem in the first place?

But this isn't just any old state. This is North Carolina, and we are in the extreme minority of jurisdictions that still observe contributory negligence! So after determining that the restaurant was indeed negligent (let's assume in this case that it was), we now have to ask a second question; was the plaintiff also negligent? If so, no recovery, remember? So in this particular example, that leads us to a couple of follow-up questions; the answers to which will really tell us everything we need to know about whether this case is even compensable.

First, can children even be negligent in North Carolina? Second, does the analysis differ depending on whether we're talking about the nine-year-old or the six-year-old?

The short answer to the first question is "it depends." Very helpful, I know. The answer to the second question, which may surprise you, is a resounding "yes."

This is confusing.

Though North Carolina departs from the norm in relying on contributory negligence, it joins many other states in implementing what we call the "Rule of Sevens" for determining the negligence of a child. The Rule of Sevens, a creature originally borne of English common law, divides minor plaintiffs into three categories, as follows:

Under Seven: We apply a non-rebuttable presumption that the child is not legally capable of negligence.

Between Seven and Fourteen: We apply a rebuttable presumption that the child is not legally capable of negligence. This means that the opposing party, in this case the restaurant defendant, can offer evidence to show that the child (i) should be held to a heightened negligence standard and (ii) failed to act with the circumspection befitting his or her wherewithal under the circumstances.

Fifteen and Older: We apply a rebuttable presumption that the child is capable of negligent. Rebuttal will take the form of evidence that the child is possessed of less discretion than the reasonable child of the same age, and is therefore not capable of negligence.

So in the above scenario, your nine-year-old will be (rebuttably) presumed incapable of having been contributorily negligent, while your six-year-old cannot be deemed negligent no matter how smart, capable, discreet, or circumspect she might be. If your nine-year-old were a sixteen-year-old, the presumption would shift and a contributory negligence defense would be very much in play in the absence of rebutting evidence.

In conclusion.

Clear as mud? I know this stuff can get confusing, and anything negligence-related is going to be driven primarily by principles of reasonability. This makes for a lot of subjectivity and gray areas. If you have any questions, well, that's what we're here for. Fill out our handy contact form or give us a call!

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