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Your email address will not be published.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

    It was a pleasure working with attorney Alexis Cahill. She helped me understand everything and gave me more than I ever thought. She is so nice and an excellent lawyer. I'm glad I went to this co-op.” thank again you for taking care of everyth...

    Read more

    rita botelho

  • google
    5.0/5.0

    Colleen Santora and her partners at Feinberg & Alban went above and beyond in providing efficient and professional representation throughout my recovery process. Colleen is a great attorney that is very knowledgeable and empathetic. She was a pleasur...

    Read more

    ELI-RAN YOUSHAEI

  • google
    5.0/5.0

    Working with this firm was a great experience. Marsha Alban is a great attorney and very easy to work with!

    Read more

    Bronislava Abramova

  • google
    5.0/5.0

    This attorney office is highly efficient, amazing, and professional. They made me feel very comfortable and was invested in my interest. Communication through my whole experience was always professional and prompt. I highly recommend them to anyone w...

    Read more

    Babydoll Babydoll

  • google
    5.0/5.0

    I was in a car accident recently, and was lost in the process of what to do post my injuries. I contacted Feinberg & Alban, where I was introduced to Colleen Santora, who was the best resource I could have ever imagined. Colleen was knowledgable, emp...

    Read more

    OT Tips & Tricks for Kids

See all reviews
Awards & Affiliations
Contact us

Quick Contact Form