Can I Sue a Child or a Child’s Parents?

Unfortunately, each year, many apartment fires are started by an unattended child playing with matches or a cigarette lighter. The tenant’s parents may or may not have renter’s insurance which includes liability cover-age and which covers the child as a “named insured.” Question: Can the building owner’s carrier subrogate against the child or the child’s parents? Answer: In New York, it depends on the child’s age.

Under New York law, a child under the age of four is “incapable of committing negligence.” When a child is older than four, it is a question for the “trier of fact” (usually a jury) as to whether that child was mature enough to commit negligence. Thus, generally speaking, you cannot sue a child younger than the age of four, but you can sue a child aged four or older and likely survive a motion for summary judgment. Factors the jury are to consider include: the child’s intelligence and experience and the child’s ability to apprehend the existence of danger, take precautions against it and exercise any degree of care for his/her own safety. [1] 

Note that NFPA 921 [2]   sets forth three separate categories of “youthful firesetters”: (a) child firesetters (ages 2-6); (b) juvenile firesetters (ages 7-13); and (c) adolescent firesetters (ages 14-16). Per NFPA 921, child fire-setters usually set fires due to “curiosity.” Juvenile firesetters usually set fires due to “some broken family environment or physical or emotional trauma.”” Adolescent firestarters often target places other than their homes, such as schools or churches and are associated with a history of delinquency and other social factors.

In New York you cannot sue a parent simply because that person is a “bad parent” (i.e., negligently failed to supervise his/her child). However, an exception to this general rule is where a parent entrusts his/her child with a “dangerous instrumentality.” Thus, for example, where a parent gives a child a handgun, the law has allowed that parent to be sued for the damages caused due to this “negligent entrustment of a dangerous instrumentality.” At least one court has ruled that it is a question for the jury as to whether a parent could be sued for leaving matches or a cigarette lighter in an open place where it could be played with by a child. [3] 

Bottom Line: If a fire starts as a result of a child playing with matches, you may be able to subrogate against the parents for negligent entrustment and/or the child if the child is at least four years old. It may be tough to sell a jury if you sue a five year old, but you may have an easier sell going after the parents who left the matches or cigarette lighter in a place where an unattended child could find it. In either case, hopefully, the child and his/her parent has renter’s insurance and the matter can be settled prior to the child having to be deposed over what is, no doubt, a traumatic event.

[1] Republic Insurance Co. v. Michel¸885 F.Supp. 426 (EDNY 1995)
[2] NFPA 921, section 10.5 “Children and Fire” (2011 edition page 921-108)

[3] Republic Insurance Co. v. Michel¸885 F.Supp. at (EDNY 1995)

This Subrogation Alert is presented as a service to our clients and other subrogation professionals. It is not intended to render legal services; the publisher assumes no liability for the reader’s use of the information herein.

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