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Your email address will not be published.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

    Colleen was great to deal with and communication was easy.

    Read more

    Graham Eyres

  • google
    5.0/5.0

    Colleen represented both my daughter and myself in a car accident case. It was a tricky and very involved case with many detail oriented issues to deal with. She handled everything with confidence and grace and supported us through what were some ver...

    Read more

    Rhonda Brouder

  • google
    5.0/5.0

    I’m a college student in the Boston area who suffered a pedestrian personal injury in December of 2022. Thankfully I was put into contact with Feinberg & Alban PC and I worked closely with Robert and Perry Feinberg who treated me with respect and f...

    Read more

    Anne O'Leary

  • google
    5.0/5.0

    Alexis Cahill was great, professional, and was open for me to contact on any questions I may have had during the process. Feinberg & Alban PC's services were nice as well, and I'd recommend them due to the transparency, what they were able to negotia...

    Read more

    Branden B.

  • google
    5.0/5.0

    My mom had a great experience with Feinberg as her attorney, after she fell near her house, and he took her under his wing. Mr. Feinberg was helpful, very organized and kind. He helped my mom a lot, very happy with results

    Read more

    Jane sungurov

See all reviews
Awards & Affiliations
Contact us

Quick Contact Form