Comparative Negligence of Children

When a trial practitioner is representing a plaintiff that is a minor child in a personal injury case, the issue as to whether the minor was comparatively negligent usually arises. The purpose of this article is to discuss the status of Florida law regarding the comparative negligence of children. Pursuant to Florida law, a child under six years of age is presumed to be incapable of committing any comparative negligence. Swindell v. Hellkamp, 242 So.2d 708, 710 (Fla. 1971); Metropolitan Dade County v. Dillon, 305 So.2d 36, 39-40 (Fla. 3d DCA 1974). Thus, if you are representing a case involving a child that is younger than six years old, the negligence of the child is not an issue. If the child is older than six, then the question of comparative negligence goes to the jury for determination. Nevertheless, if the child is just short of six years of age, there are cases that support treating that child as a six year old for purposes of deciding the comparative negligence question. For example, in Turner v. Seegar, 10 So.3d 310 (Fla. 1942), the Florida Supreme Court held that it was a question of fact for the fact-finder to decide whether a child just a few days short of her sixth birthday was guilty of contributory negligence. With respect to children that are age six or older, it is important to remember that age is still a factor to be considered to determine the reasonableness of the child’s conduct. Evidence showing that the child was not able to appreciate what was happening and used reasonable care as far as children of that age are concerned, will weigh in favor of a finding of no comparative negligence even if under adult standards, the child’s acts would be deemed unreasonable. Among the things that the jury will consider in deciding whether a minor child should be declared comparatively negligent are the following: The degree of care which reasonably careful children of the same age, mental capacity, intelligence, training and experience would use under the same circumstances. See Florida Standard Jury Instruction 4.4. In McGregor v. Marini, 256 So.2d 542 (Fla. 4th DCA 1972), the Fourth District Court Appeal held that “The standard of care by which the law measures the conduct of a minor over six years of age is that level of care which could reasonably be expected from a child of like age, intelligence, experience and training.” Id. at 543. The same standard will be applied to children whether one is discussing the negligence of the child or the comparative negligence of the child. Id. The jury must consider whether the minor involved had the necessary maturity to appreciate the nature and consequences of his or her acts. Boinca v. Dade County School Board, 549 So.2d 220 (Fla. 3d DCA 1989). If a minor child is determined to be sufficiently mature or one who is able to appreciate the consequences of his or her acts, then the jury will be able to properly find the minor child negligent or comparatively negligent. Turner v. Seegar, 10 So.2d 320 (Fla. 1942). If the affirmative defense of comparative negligence has been raised in a case involving a child that is less than six years of age, then a motion for partial summary judgment as to that affirmative defense should be raised so as to dispose of the defense prior to reaching trial. In defending a case involving a child six years of age or older, the defense should do everything possible to establish the maturity of the child so as to prove that the child was able to understand and appreciate his or her acts. This will allow the comparative negligence defense to be decided by the fact finder.