Recovery Following Roadway Accidents
Under the civil law, all those who are harmed by the negligence of others can usually recover for their losses. In general, recovering after an accident requires the harmed person to show that another breached a duty of care (did not act reasonably) and caused the injury. The most hotly contested aspect of these cases is often determining whether a party actually acted unreasonably or did not do what a prudent person would have done in the same situation.
Determining carelessness is different for each case. That is because the vulnerabilities of the party harmed are often taken into account—that includes children. Children are held to a different and more limited standard of care during their encounters with motor vehicles on public streets. Unlike an adult pedestrian who has the duty to exercise ordinary care when encountering traffic or crossing the street, children must simply exercise that degree of care that would reasonably be expected of a child of like age, experience, and intelligence.
Therefore, in determining whether a child’s actions amounted to negligence, the jury must first consider the age, mental capacity, and experience of the child. The ultimate question for the jury is whether the particular child, given her individual limitations, showed the level of care that reasonably should be expected of her. Everyone understands that children have yet to develop the maturity and awareness to avoid dangerous situations. That is why conduct that may been deemed reckless if performed by an adult pedestrian would be forgiven in a child.
In most cases, a driver who hits a child on or near the road will be found liable for the harm. For example, even in cases where a child darts out into the road unexpectedly, the driver’s own negligence may have contributed to the accident. Perhaps the driver was speeding—speed limits are far lower in neighborhoods and school zones. At other times the driver may have been distracted by looking at a cell phone or otherwise not closely monitoring the road.