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Under Washington Law, a Child Under Age Six Cannot Be Held Negligent

Author: Nathan Furman

Guest Editor: Allen Aho

September 1, 2020 8:30am

The Washington Supreme Court has held that children under six years of age are incapable of” “fault.” As a matter of law, no issue of such a child’s negligence can be submitted to the jury.  Price v. Kitsap Transit, 70 Wn. App. 748, 856 P.2d 384 (1993), aff’d, 125 Wn.2d 456 (1994).

In Price, a bus passenger’s pre-existing injuries were aggravated when a four-year-old child activated the bus’s emergency stop switch. The plaintiff sought damages from the child, the child’s father and the common carrier that operated the bus.

Before trial, the plaintiff settled with the child and the father. The parties then appeared before a trial judge to determine the reasonableness of the settlement.

The settlement was determined to be reasonable and the case against the child and the father was dismissed. The plaintiff’s suit against the common carrier went to trial and the court determined the plaintiff’s total damages to be $259,535.

The trial court then determined that, of the total damages, the common carrier was 10 percent at fault, the father was 10 percent at fault, and the child was 80 percent at fault but immune from liability. The trial court ordered the common carrier to pay the plaintiff in accordance with its share of fault, i.e., $25,953.50 or ten percent of the total damages.

The plaintiff appealed, claiming the trial court erred in assigning any percentage of fault to the child. The Washington Supreme Court agreed. Although the common carrier noted that children under six may be held liable for volitional, wrongful conduct, the Price court held that “intentional torts are part of a wholly different legal realm and are inapposite to the determination of fault pursuant to RCW 4.22.070(1).” Price, 125 Wn.2d at 464, 886 P.2d 556. By comparison, a 17-year-old or 18-year-old of normal capacity usually will be treated as an adult, especially if the he or she was engaged in an adult activity like driving. Bauman v. Crawford, 104 Wn.2d 241, 244, 704 P.2d 1180 (1985).

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