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Minors’ Negligence and the Standard of Care

MinorsChildren are accident-prone, and sometimes, their carelessness causes injury to others. Generally, those injured because of another’s negligence or recklessness can hold the at-fault party liable. But when an injury is caused by a child, the standard for what constitutes negligence may be different.

General Standard of Care

In any negligence case, the victim must show that the defendant failed to use reasonable care to protect others from injury, whether by acting or by failing to act. Generally, the standard of care to which a person must adhere is doing what a reasonably careful person would do under the same circumstances. The jury determines how a reasonably careful person would have acted in the specific situation of an individual case.


However, minors are generally less capable of acting responsibly to protect others. Because they are younger, they have less life experience, and their brains are less developed, they do not always fully understand the consequences of their actions.

Thus, minor defendants in personal injury cases are judged by a special standard. To avoid liability, they must exercise the level of care expected of:

  • A reasonable child;
  • Of similar age, experience, and intelligence; and
  • In the same situation.

The standard is not that of an average child of the same age. Rather, it is based on the individual child’s experiences, intelligence, and age.


There is an exception to the reduced standard of care that applies in cases when minors participate in adult activities. When a minor engages in an activity normally undertaken only by adults, his or her young age or lack of experience is not an excuse for negligent behavior, and the minor can be held to the same standard of care as an adult.

One area in which this adult activities exception applies is when minors drive automobiles, motorcycles, snowmobiles, or powerboats. Motor vehicles are dangerous to the public, and negligent behavior while operating one can cause serious injury or death to others, so the state does not want them to be operated with less than the normal minimum level of care and experience.

Contributory Negligence

Sometimes, an accident is caused by the negligence of both the injured party and the defendant. When the injured party’s negligence contributes to causing the accident, he or she can be held contributorily negligent, and the damages that the victim recovers will be reduced proportionate to his or her degree of fault. For example, if the victim were 25 percent at fault in an accident that caused the victim $10,000 in injuries, the victim’s recovery amount will be reduced by $2,500.

In California, children under the age of five are legally incapable of contributory negligence because they are too young to have the judgment to take care to avoid injury to themselves. Thus, even if they are partially at fault in an accident, their recovery amount will not be reduced.

If you have been injured, and another person is at fault, please contact the experienced San Jose personal injury attorneys at Corsiglia, McMahon & Allard, L.L.P. to schedule a confidential consultation.

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