Children and negligence – contributory negligence

Under Virginia law, to pursue a case for personal injury, you must prove the other party was at fault. Sometimes the word “negligence” is used to describe fault. “Negligence” is a broad term, but basically, negligence occurs when someone has not been reasonably careful or mindful of safety under the circumstances.

Fault and negligence are treated differently in different states, but Virginia is known as a “contributory negligence” state. What this means is that in Virginia, if you as the injured party are even the slightest bit at fault for the accident, you cannot successfully pursue a case.

When it comes to children, what may or may not be “reasonable” behavior under the circumstances can be very different. Therefore, there is a different standard for cases involving children.

underage driver at the wheel

Under Virginia law, minors are not held to the same “standard of care” that an adult might be when considering whether the minor acted reasonably (or whether they were negligent) under the circumstances. Therefore, when considering whether a minor was at fault for an accident or injury, we consider whether the minor acted reasonably as compared to “a reasonable person of like age, intelligence and experience under like circumstances.”[1]  The law differentiates what is reasonable for a child based upon his or her relative age group.

Specifically, children under the age of seven are presumed to be incapable of negligence. [2] In addition, Virginia law provides that, for children between ages 7 and 14, children in this age range are presumed to be incapable of negligence, but under certain facts and circumstances, the child could be considered negligent if it can be proven 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]

After a child reaches the age of 14, he or she is presumed to be capable of contributory negligence, because he or she is capable of sensing of danger and has the power to avoid it. However, this presumption can be overcome if there is enough proof that a reasonable child of similar age, intelligence, and experience could not have appreciated the danger under the specific circumstances. [4]

There is an important exception for minors who operate motor vehicles.  Under Virginia law, regardless of age or maturity, a minor who operates a motor vehicle is held to the same standard of care as an adult, which is the degree of care that a reasonably prudent person would exercise under the same or similar circumstances. [5]

Under Virginia law, an injured party cannot recover in a personal injury case if he or she was negligent and/or contributed to the accident or injuries. When the injured party is a child, their relative age, intelligence and experience will need to be considered if there is some concern that the child may have been partially at fault for the accident.

At Allen & Allen, we have experience helping parents and children injured in accidents of all types, and we are here to assist you in navigating the law as it applies to these situations. Call us for a free consultation at 1-866-388-1307.


  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).