We don't want judges to be judicial activists until we want them to be activist judges.

I have been pondering a lawsuit, and the ensuing outrage, that our friend over at Minnesota Environmental Lawyer brought to my attention.

As initially reported in the New York Times, a trial court judge recently ruled that a four-year-old girl accused of running down an elderly woman while racing a bicycle with training wheels on a Manhattan sidewalk two years ago can be sued for negligence.

As Professor Weissbrodt would say, the procedural posture of the issue for decision was that the court was ruling on a motion to dismiss. The undisputed facts are as follows. A four-year-old girl and a five-year-old boy were racing their bicycles, under the supervision of their mother, on the sidewalk of a building on in Manhattan. At some point in the race, they struck an 87-year-old woman, 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 of unrelated causes. As an aside, it has been my experiences that once an elderly person breaks hip, things tend to deteriorate rapidly.

In any event, the woman’s estate sued the children and their mothers, claiming they had acted negligently during the accident. The girl’s lawyer moved to dismiss, the boy’s lawyer did not. The girl’s lawyer apparently made three arguments in support of the motion: (1) the girl was not engaged in adult activity at the time of the accident; (2) the girl was under the supervision of her mother at the time; and (3) that the girl was too young to be held liable for negligence. The Court denied the motion. I assume the court did so because New York Civil Practice Law and Rules only require that, “[s]tatements in a pleading shall be sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action or defense.” CPLR § 3013. And that, “[e]very pleading shall consist of plain and concise statements in consecutively numbered paragraphs.” CPLR § 3014; see also Colon v. Bernabe, 2007 U.S. Dist LEXIS 51981, 2007 WL 2068093 [SD N.Y.2007] (finding that “[b]oth the C.P.L.R. and the Federal Rules require only a short and plain statement of the claim showing that the pleader is entitled to relief'); Brown v. Luk, Inc., 1996 U.S. Dist LEXIS 7173, *14, 1996 WL 280831 [ND N.Y.1996] (finding that “the pleading requirements of New York's Civil Practice Law and Rules ... are more lenient than the Federal Rules of Civil Procedure”).

As to the three specific arguments, the Times article doesn’t report as to how the first one was handled and I am unable to find a copy of the order. With respect to the second argument, the court said that a “parent’s presence alone does not give a reasonable child carte blanche to engage in risky behavior such as running across a street.” Moreover, 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. Predictably, given the posture of the motion, there was nothing to suggest that the girl’s mother “had any active role in the alleged incident, only that the mother was ‘supervising,’ a term that is too vague to hold meaning here.” he wrote. Moreover, there was no evidence demonstrating the girl’s “lack of intelligence or maturity” or anything to “indicate that another child of similar age and capacity under the circumstances could not have reasonably appreciated the danger of riding a bicycle into an elderly woman.” Finally, as to the third argument, the court noted that in New York there is a presumption that a child under 4 is too young to be sued. Since the girl was almost five when the accident occurred, the Court noted there was no “bright-line rule” preventing the suit and declined to extend the existing precedent to children past the age of four.

The court’s ruling has caused several people’s head to explode. The New York Daily News said that the judge on the case was an “idiot”, whose ruling was “nutty”, and that he “needs a set of training wheels on his brain.” Jeff Vrabel, a columnist with the Gatehouse News Service, sarcastically says that the judge exercised “the stout-hearted, flame-broiled foresight,” in denying the motion.

Finally, the folks at the lawyersandsettlements.com, whom I presume are lawyers, really do not like the ruling calling it “silly” and implies that the judge is insane by referring to a “brief moment of sanity." The post goes on to offer three reasons why the suit should have been dismissed: (1) a four-year-old “may ‘get’—to some degree—that barreling into someone on a bike may not be a good thing; in fact, may cause harm—but they don’t understand the full extent of their actions and the subsequent harm;” (2) the parents are responsible, not the child; and, this is my favorite, “It’s 2010, not 1928.”

With regard to the third reason, the author writes:

My guess is that since a woman’s life expectancy in the 1920’s was about 56.4 years, a four-year-old would’ve already lived about seven percent of her little life and, therefore, must have been on a some serious maturity trajectory—vs. today, where women have a life expectancy of about 80 years (give or take) and a four-year-old would have logged only five percent of her years thus far. Let’s also add in things like the fact that most women were married off and managing their very own broods by the time they entered their 20’s in the ’20’s. Shall I even bring up child labor laws (or the non-existence of them) in the 1920’s?

Setting aside that the author does not understand that life expectancy was lower in 1928 because of infant mortality not because people who survived infancy died younger, can a lawyer seriously believe that an apparently binding precedent does not apply because a four-year-old in the 1920s was closer to death than a four-year-old in 2010. Does that make any sense?

People make a big deal about judges being “activist” and ignoring precedent. We are told they are bad judges. Indeed, at every Supreme Court confirmation hearing I can recall, the nominee was asked about the importance of following precedent. So what happened in this case? A judge declined to extend a rule of law beyond where it was set eighty years ago (and apparently left undisturbed by the New York legislature during that time), followed the precedent, and got excoriated for it. Sometimes one can’t win for losing.