My five year old son was at his friend’s house playing. He and his friend were playing in a tool shed which had a lawn mower and some other power tools as well as a gasoline can. It seems like my son’s friend found some matches and some of the gas from the tools caught on fire. Both my son and his friend received burns before they could run out of the shed. Can I make a claim for my son’s injuries?
Negligent Supervision
Unfortunately you probably will not be able to make a claim for your son’s injuries. A prior post mentioned a claim called “negligent supervision.” As stated in the earlier post, a parent is not responsible for the acts of a minor child. But a parent can be responsible for failure to use reasonable care in entrusting a child with an instrument that constitutes an unreasonable risk of harm to others. The court looks at the age, intelligence and disposition of the child, as well as the instrument involved. Nolechek v Gesuale, 46 NY2d 332, 413 NYS2d 340 (1978). Parents have a duty to other people to make sure their son or daughter does not obtain any “dangerous” instrument and causes harm to others. Rios v Smith, 95 NY2d 647, 722 NYS2d 220 (2001).
Dangerous Instrument
What is “dangerous” depends on those factors listed above regarding the child and the instrument itself. So matches in the hands of a 17 year old may not be “dangerous.” But those same matches might be dangerous in the hands of a much younger child.
Unfortunately, after some legal research, I discovered matches in the hands of a five year old are not “dangerous.” Marks v Thompson, 18 AD2d 731, 234 NYS2d 391 (3d Dept 1962), affd, 13 NY2d 1029, 245 NYS2d 601 (1963). In this Marks case, decided by New York’s highest court, the court found that a cigarette lighter in the hands of a four year old was not dangerous. The court reasoned that a lighter was in the same category as many household items like knives. They could potentially be dangerous but are easily accessible because they are used daily. See also Beekman Estate v Midonick, 44 Misc2d 11, 252 NYS2d 885 (Sup 1964). (A child three years and 11 months was playing with matches in the Beekman case.)
You can always make the claim. Perhaps a different court will feel differently. But ultimately, if you won at the lower court, your case would probably be appealed to the highest court. That means you would have to ask the Court of Appeals (New York’s highest court) to overrule itself. Although this is not impossible, it is unlikely.
Liability of Infant
There is a second theory of recovery. You could potentially sue your son’s five year old friend on behalf of your son. (I am assuming the friend was the same age as your son.) Your son’s friend I am also assuming lives in the same household as his parents. Thus, a homeowner’s insurance policy would likely cover your son’s friend. But, as you might suspect there is a problem. The doctrine is called non sui juris. That is, a person can be held legally not responsible for negligence because they are too young. Unlike some states, New York has no definite age at which a person cannot be held liable. Camardo v New York State Rys., 247 NY 111, 159 NE 879 (1928). In New York, the standard of care for your son’s friend is a reasonably prudent five year old.
It seems unlikely a jury would find a five year old boy liable for any negligence. There is also a chance, after hearing the boy testify, a judge may direct a verdict in favor of the defendant. So, considering the unlikely success considering multiple theories of recovery, it is not likely your son’s claim would be successful.
By James Santner, Esq.
If you have questions about a similar situation, feel free to contact us. Consultations are free and there is no fee unless we win.