Automobile accidents often involve children in some way, such as when an accident occurs near a school or in areas where children play. A driver or motorist must exercise caution when children are nearby so as to avoid injuring them.

Liability of a Driver for Injuries to Children

When driving in an area where children are known to be present, a driver must avoid creating an unreasonable risk of harm to any of the children. The exact duty depends on the probability of causing injury to the child. Where a risk is reasonably foreseeable or anticipated, the driver must avoid it, or take steps to prevent an accident.

The driver must exercise the care of an ordinarily careful person to protect children from injury. The level of care depends on the age and nature of the child who is injured. The known characteristics of children are factors when examining whether a driver exercised the appropriate care towards a child.

Characteristics of children: Children tend to be curious, and lack appreciation for danger. They are prone to impulses and may suddenly run into the road after a stray ball or a pet on the loose. Many courts have held that young children under these circumstances cannot be expected to protect themselves from being struck by an automobile.

Foreseeability: The liability of a driver for an injury to a child may depend on whether a reasonable person in the same circumstances would have anticipated the consequences of the driver's actions. If the risk of injury was not apparent, the driver will not be held liable for the injury.

Specific Duties: To fulfill the standard of care, that is, to act as an ordinarily careful person in the same circumstances, the driver must take certain actions while driving, such as:

  • Sounding a warning, reducing speed or stopping
  • Maintaining proper control and preparing to take evasive action, if needed

Causation: A driver may avoid liability for injuring a child if the driver's negligent acts did not directly cause the child's injury. The sole cause of the accident could be the behavior of the injured child or the negligence of the injured child's parent, such as letting the child play near the street without adult supervision.

Defenses: If the injured child's behavior contributed to his or her own injury, the driver's liability will be reduced in proportion to the child's fault if the state follows comparative negligence law. Comparative fault takes into account each party's responsibility for an accident and the injuries. However, the law might provide that young children are incapable of comparative negligence, and that older children are only required to use the degree of care that ordinarily careful children of the same experience and intelligence would use. Additionally, the driver might be able to raise defenses under the emergency doctrine or argue that the accident was unavoidable under the circumstances. These defenses recognize that in some emergency situations, a driver's choices in maneuvering his car are limited.