Reply #11: The pre-existing assumption comes from established case law: [View All]

[Hassin Bin Sober]

There was no correction to the case as it has ALWAYS been an injury claim NOT a wrongful death claim. The NYT times screwed up in its reporting.

From the motion to dismiss denial. Johnathan Turley also discusses the case at the link:



http://jonathanturley.org/2010/10/29/tykes-on-bikes-new-york-court-finds-toddler-can-be-held-for-tort-damages/

Non Sui Juris

Defendant-movant correctly notes that infants under the age of four are conclusively presumed incapable of negligence (Verni v Johnson, 295 NY 436, 438, 68 N.E.2d 431 <1946>). Defendant-movant Juliet Breitman, however, was over the age of four at the time of the subject incident.

For infants above the age of four, there is no bright line rule, and “in considering the conduct of an infant in relation to other persons or their property, the infant should be held to a standard of care . . . by what is expected of a reasonably prudent child of that age, experience, intelligence and degree of development and capacity” (Gonzalez v Medina, 69 AD2d 14, 18, 417 N.Y.S.2d 953 <1st Dept. 1979>, citing Camardo v. New York State Rys. 247 N.Y. 111, 159 N.E. 879 <1928>; see also Steeves v City of Rochester, 293 NY 727, 731, 56 N.E.2d 735 <1944> <"The general rule is that 'a child is not guilty of contributory negligence if it has exercised the care which may reasonably be expected of a child of similar age and capacity.'">;