Search Site
Menu
Of Children and Comparative Negligence

If a child wanders onto a construction site and falls injuring himself/herself, how do we assess the child’s conduct?

We do not have “attractive nuisance” in Massachusetts, unlike many other jurisdictions. We do have a statute, MGLc 231 § 85Q governing trespassing children which sets out five criteria for negligence not unlike attractive nuisance. As to the child, he is held to the standard of care of a child of like age, intelligence and experience.

The consequence of the above standard is that a finding of significant comparative negligence on a very young child is almost impossible…thankfully.

With an older child who sues (and the suit is technically brought by the parent or next friend), the calculation is less clear but surely not as exacting as on the adult plaintiff. Let us also note that in Massachusetts we have comparative negligence since 1973. This reduces the amount the plaintiff can recover by the percent of the plaintiff’s own negligence as long as the plaintiff is not more than 50% at fault.

If the plaintiff is 51% or more at fault, there is no recovery at all. Fortunately, Judges now instruct juries, whether it be a child plaintiff or an adult plaintiff, that a finding of more than 50% negligence will negate the plaintiff’s right to recovery. Full disclosure on the effects of a jury’s decision as to a percentage of comparative negligence is typically thought to benefit plaintiffs. Regardless of the strategic concerns, full disclosure surely seems fair.

Leave a Reply

Your email address will not be published. Required fields are marked *

Feinberg & Alban, P.C. fervently protects your rights
  • The Boston firm of Feinberg & Alban, P.C. specializes its practice in the area of personal injury.

    The attorneys serve the entire state of Massachusetts in addition to affiliating with lawyers in other states to handle cases outside of Massachusetts.

  • $7.7 Million Award for Feinberg & Alban Client in Personal Injury Trial

    Boston Attorneys Win Highest Injury Verdict in Massachusetts in 2011 & 2012.

Client Reviews
  • google
    5.0/5.0

    I had a wonderful experience working with Robert Feinberg and Colleen Santoro. I never once had doubts about how my case would be handled. I knew I was in great hands with both of them. I was always informed and felt confident in their ability to re...

    Read more

    Betsy Rose

  • google
    5.0/5.0

    This firm is great! They negotiated a settlement for us after another firm told us we had no case. The whole process was quick and easy. Colleen was so easy to work with and very responsive.

    Read more

    Ellen Carita

  • google
    5.0/5.0

    Highly recommend this firm! Colleen Santora was my sister's attorney for her motor vehicle accident. Colleen was always responsive and answered all our questions. She was transparent and put 100 effort in the case. She very knowledgeable. I would re...

    Read more

    Warda Khurram

  • google
    5.0/5.0

    My wife with our dog crossed the street when was hit by a car. Our attorney Alexis Cahill was professional, knowledgeable and reliable. We had good communications with her all the time while my wife recovered from her injuries. We are completely sati...

    Read more

    michaelvideohere

  • google
    5.0/5.0

    I got chance make car accident (it's not my fault). Before I didn't have any accident like that one. I choose this agency accidentally due to it's location was convenient to my job. I was surprise (good surprise) that agency lawyer (Colleen Santora) ...

    Read more

    Anatoly Gorbatchev

See all reviews
Awards & Affiliations
Contact us

Quick Contact Form