Presumptively Capable of Negligence

Presumptively Capable of Negligence

Personal injury claims that name legal minors (children under the age of 18) as defendants require that the minor is “presumptively capable of negligence”. In other words, in order to win a personal injury claim in which damages were the result of a child’s negligent actions, the plaintiff must be able to prove that the child has:

  • the capacity to take responsibility for his or her actions


  • the mental ability to comprehend and truly understand the consequences that can result from his or her actions.

Minors are typically held to a different standard under the legal system, one in which they are typically not as liable for their actions as adults are. This is because children often do not have the ability to fully understand the connection between one’s actions and the consequences. As such, children often put themselves at risk through their own actions, simply not realizing the extent of injuries or damages that may occur as a result.

In a personal injury claim in which a child is responsible for injuries and other damages, it is likely that the defense will argue that the child does not have the capacity or the mental ability to be held liable in the claim.

This argument will state that the child cannot be negligent as he or she could not possibly understand the level of responsibility he or she holds for the well-being of others, which is a central requirement for establishing negligence in a personal injury lawsuit.

The plaintiff on the other hand, must argue that that child is presumptively capable of negligence and can therefore be held liable for damages. This simply means the plaintiff must establish the child has sufficient understanding of how his or her actions affect the safety and security of others in order to prove the child can be liable in the claim.