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Your email address will not be published.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 Santora Has been amazing throughout this whole process. I am 100% satisfied with how she has been there and represented me.

    Read more

    Nicholas Lugo

  • google
    5.0/5.0

    I worked with Perry Feinberg, as my personal injury attorney for an auto accident, Perry was very responsive, and available to answer all my questions. They are good at communicating with you and keep you informed. I’m finally able to put this acc...

    Read more

    Veronica Pleitez

  • google
    5.0/5.0

    Some of the best lawyers I have ever had very caring and friendly they helped me and my family tremendously, I would 100 percent recommend them and not look any further they will get the job done.

    Read more

    Brandon Welliver

  • google
    5.0/5.0

    Colleen Santora and Robert Feinberg at Feinberg and Alban treated my husband and I like family. Their concern for us felt personal and genuine. Colleen and Rob always kept on the details of my case fighting for me and guiding me along during a stress...

    Read more

    Marchant

  • google
    5.0/5.0

    Colleen was excellent to work with- great communication from start to finish. Highly recommend!

    Read more

    Paige Duane

See all reviews
Awards & Affiliations
Contact us

Quick Contact Form