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Published: 9/12/2009

If a 6-year-old injures another child, who pays?

Dear Dale: Recently at a local sporting facility, my 5-year-old daughter was injured by her 6-year-old stretching partner. My daughter says she told the girl to stop pushing because it hurt, while the other little girl says she didn't do it on purpose. My daughter suffered a pubic bone fracture and muscle tears. I read in one of your old columns that children of a certain age can't be found negligent, but what about the instructor of the class or the facility? Could they be held responsible for not supervising the girls properly?

ANSWER: You're right that under Ohio law, children under the age of 7 can't be found negligent because they don't have the capacity to fully appreciate the consequences of their conduct. Even older children between the ages of 7 and 14 are presumptively not negligent for their acts, though evidence of maturity and intelligence can rebut that presumption.

In this situation, the 6-year-old can't be found negligent for hurting your daughter. So let's turn to the other issue you raised about the instructor or the facility. In order to examine this issue, I'll have to touch on a few of the basic elements of a negligence case.

First, you have to show that the person causing injury owed a duty to the injured person to act in a certain way. Part of the duty equation deals with whether it was foreseeable that acting or failing to act could cause a certain result.

So, viewed from that perspective, it would seem you would have to determine whether it was reasonably foreseeable that if the two little girls weren't properly supervised or instructed that injury could result. There are all sorts of variables that enter that equation, but that's the rough idea. Whether there was a duty and whether that duty was breached in some way likely depends on your perspective, and certainly depends on the facts.

If the instructor told the kids to pull on each other's legs to limber up, and then left the kids unattended while she went outside for 20 minutes to smoke a cigarette, you might have an argument that she breached a duty to your daughter. Or if the 6-year-old girl previously had hurt other class members in the same manner and the instructor was aware of those other incidents, that might be helpful.

On the other hand, if the instructor demonstrated the proper way to perform stretching exercises with a partner, and kept an eye on the kids the best she could, your case doesn't sound so great. Again, it's a fact-specific examination that wouldn't become more clear until all the parties were questioned in a deposition.

An issue that you didn't raise, but one that you'd have to consider, is whether you signed a waiver of liability form before your child entered the class. Liability waivers typically say something to the effect that if your child is injured, even through the organization's negligence, that you can't go forward with a legal action. Most parents who have enrolled their kid in a soccer or baseball league have encountered this type of form, and probably signed it without giving it much thought. Those forms have real power to shelter organizations and their employees from liability. So, before you push this issue too far, you might want to see whether you signed such an agreement.

If you're looking to recoup any expenses you may have incurred for your daughter's treatment, you may want to consider asking the sports facility whether they have something called medical payments coverage under their insurance policy. Medical payments coverage can be available without regard to negligence. It provides money for medical bills, but doesn't cover other potential claims for things like pain and suffering. That might be a middle path between filing a negligence suit and letting it go.

Dale Emch practices law at the Charles E. Boyk Law Offices, LLC, in Toledo. In his column, he will discuss general legal principles and answer readers' questions. Neither Mr. Emch nor The Blade present or intend his column to be taken as legal advice. Readers seeking legal advice should consult with an attorney. Readers should send their questions to Mr. Emch at demch@charlesboyk-law.com or Dale Emch, 405 Madison Ave., Suite 1200, Toledo, OH 43604. His blog is at www.toledocaraccidentlawyerblog.com



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