Children and Negligence - Contributory Negligence

Author: Melinda H. South, Richmond Personal Injury Attorney

If you are involved in a personal injury action, you must prove the other party was at fault (negligent).  Negligence is the failure to use ordinary care.  In Virginia, if you as the injured party are found to be even 1% at fault (contributorily negligent), then you cannot recover for your injuries from the other party.

There is a different standard for cases involving children. The standard of care for a minor is that of a reasonable person of like age, intelligence and experience under like circumstances.[1]

Children under the age of seven are presumed to be incapable of negligence.[2]

If the child is between the ages of seven and 14, there is a presumption that the child is incapable of negligence but this may be rebutted.  In order to be found guilty of contributory negligence, it must be proved that the child had the ability to understand and appreciate the danger, and that the child’s actions were similar to a reasonable person of like age, intelligence and experience under the circumstances.[3] 

Although children over the age of 14 can be found negligent, the finding can be rebutted based on the same standard of a reasonable person of like age, intelligence and experience under like circumstances.[4] 

There is an important exception for minors who operate motor vehicles.  Under Virginia law, a minor who operates a motor vehicle is held to the standard of care of an adult which is the degree of care that a reasonably prudent person would exercise under the same or similar circumstances.

In the case of Thomas v. Settle, 247 Va. 15, 21, 439 S.E.2d 360, 364 (1994) the Supreme Court of Virginia was persuaded by two factors that a minor should be held to the same standard of care as an adult when operating a motor vehicle:  “First, motor vehicles, readily available to youthful operators, are at least as potentially dangerous instrumentalities in the hands of an inexperienced minor as they are when operated by an adult. Second, licensed drivers should be expected to conduct themselves with the same degree of care and skill, without regard to age or maturity.”

When an accident occurs involving a child as the injured party, the above factors must be considered in order to determine if the child can recover for his or her injuries in Virginia, or whether the child will be prevented from recovering under the doctrine of contributory negligence.

About The Author: Melinda South has been a lawyer with Allen & Allen for almost 30 years. She is an experienced legal researcher, assisting in the preparation of firm briefs and legal directives.

[1] See Virginia Elec. & Power Co. v. Dungee, 258 Va. 235, 520 S.E. 2d 164 (1999).

[2] Grant v. Mays, 204 Va. 41, 129 S.E.2d 10 (1963).

[3] Doe v. Dewhirst, 240 Va. 266, 396 S.E.2d 840 (1990).

[4] Carson v. Leblanc, 245 Va. 135, 427 S.E. 2d 189 (1993).

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