October 29, 2010
Four Year Old Bicyclist Found Potentially Liable in Woman's Death
Here's The New York Times version of a story that I know is getting lots of play. Usually I'm one to give judges the benefit of the doubt but, in this case, my first reaction is, "Seriously?!"
The suit that Justice Wooten allowed to proceed claims that in April 2009, Juliet Breitman and Jacob Kohn, who were both 4, were racing their bicycles, under the supervision of their mothers, Dana Breitman and Rachel Kohn, on the sidewalk of a building on East 52nd Street. At some point in the race, they struck an 87-year-old woman named Claire Menagh, who was walking in front of the building and, according to the complaint, was “seriously and severely injured,” suffering a hip fracture that required surgery. She died three months later.
Her estate sued the children and their mothers, claiming they had acted negligently during the accident. In a response, Juliet’s lawyer, James P. Tyrie, argued that the girl was not “engaged in an adult activity” at the time of the accident — “She was riding her bicycle with training wheels under the supervision of her mother” — and was too young to be held liable for negligence...
[The child's lawyer] had also argued that Juliet should not be held liable because her mother was present; Justice Wooten disagreed.
“A parent’s presence alone does not give a reasonable child carte blanche to engage in risky behavior such as running across a street,” the judge wrote. He added that any “reasonably prudent child,” who presumably has been told to look both ways before crossing a street, should know that dashing out without looking is dangerous, with or without a parent there. The crucial factor is whether the parent encourages the risky behavior; if so, the child should not be held accountable.
"Reasonably prudent child"? I realize the judge is just quoting the standard here, but I can't believe a court ever that a "prudent" child could ever exist? Obviously those judges never spent any time around small children. Children this age require constant supervision due to their particular lack of prudence.
Okay, you may be asking, but what does this have to do with land use? Well, my impulse to blog this came from some of the reader comments to the Times story, to the effect that the child shouldn't have been riding on the sidewalk but on the street or a trail. Other commenters, rightly, point out that it's certainly not safe to encourage small children to ride their bikes on the street.
Also, although I know bicycle advocates say that cyclists are actually safer riding in the street than on a sidewalk, even some avid cyclists I know sometimes feel safer on the sidewalk.
The Wisconsin Department of Transportation has the following suggestions for cyclists:
Only small children learning to ride should use sidewalks for regular riding. They should have adult supervision even on sidewalks or in the family driveway. [Emphasis added - at least someone has some sanity about kids on bikes with training wheels.]
All other bicyclists should learn to ride on streets or marked bicycle lanes, except in rare circumstances, such as when a wide sidewalk is part of a designated bicycle route.
Studies have shown that the sidewalk is considerably less safe for bicyclists than the street. The bicyclist is never required to ride on paths or sidewalks. Local jurisdictions can pass ordinances allowing bicycling on sidewalks if they have unusual circumstances where the sidewalk is safer for certain bicyclists.
So, food for thought for parents and cyclists alike.
Ironically, while I'm promoting cycling safety with this post, I am blowing out my carbon footprint on a flight from Atlanta to San Francisco. (Gotta love inflight wi-fi!) I'm spending the weekend at The Mindful Lawyer conference in Berkeley. Should be pretty groovy!
Jamie Baker Roskie
PS Here's an article from the San Francisco Chronicle's website about the Mindful Lawyer conference.
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