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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.

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