My son’s bike was damaged (but fortunately not my son). My neighbor’s child had disengaged a parking brake on their family car. The car was a parked in neutral and began to roll out of my neighbor’s driveway into the street, striking my son’s bike. Can I sue to get the bike fixed?
The short answer is yes. The best claim you have is against the owner of the car for negligent entrustment. It does not matter if the owner left the locked. As long as the owner left the keys in a location for the child to get to them, the owner would be responsible for safeguarding the vehicle.
In civil cases, children under 4 cannot be charged with negligence. Smith v Sapienza, 115 AD2d 723, 496 NYS2d 538 (2d Dept 1985). Children under 6 cannot be charged as violating the vehicle and traffic law. Schaffner v Rockmacher, 38 AD2d 835, 329 NYS2d 630 (2d Dept 1972). Children over 6 are only held to be responsible for laws they understand. Children over 4 could be negligent under the law, but their conduct is compared to “a reasonably prudent” child of the age of the child in question.
Normally, in a negligence case, your claim is against the bad actor. But the individual who was negligent is a child, they are treated differently under the law. So your neighbor’s child is probably not liable for the accident. But your neighbor is liable for allowing their child access to car keys.
By James Santner, Esq.
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