If My 6-Year-Old Gets Hurts By Another Child, Who Is Liable? October 1, 2009

Here’s a question I heard recently: my 6-year-old daughter got injured pretty badly at gymnastics practice by another girl on her team. My daughter says she told the other girl that the stretch they were doing hurt and that the other girl should stop pushing. My daughter broke her pubic bone and tore some muscles, and the other girl says she didn’t mean to hurt my daughter. Can children that age be negligent? Can the gymnastics instructor or the facility be negligent for not adequately supervising the children?

ANSWER: Under Florida law, there is no specific age at which children become old enough to be held negligent. The rule is that children behavior is tested by what is reasonable under the circumstances, including age, experience and state of mental development of the child.

That is unless the child is doing something that usually only adults do like driving a car or boat or flying an airplane. Then the child is held to a higher standard of behavior – they are required to do the activity with the skill and care of an adult.

If the child is engaged in normal behavior for children, then the question is whether or not the child has the experience, intelligence, maturity, training or capacity to act with the care the situation requires. If so, then the child can be held liable for negligence. If not, then they can’t. That question is one that only a jury can answer. It is not for lawyers or judges to say. The specific facts of each circumstance and each child must be weighed by the jury. Every case is almost always very different.

As for the instructor or facility, the question of whether or not they can be liable for your daughter’s injuries is also a very fact intensive question. If either had a duty to protect your child from injury and breached that duty, they may be held liable. Answering those questions requires further information.

A jury would have to consider it reasonably foreseeable that injury could result from leaving the two girls without supervision. If a jury did decide it was reasonably foreseeable, that jury could find negligence if the instructor told the kids to stretch and then left the room to make a phone call.

However, if the instructor taught the children proper stretching form and watched them while they performed all their stretches, then it’s unlikely a jury would hold the instructor liable for your daughter’s injuries.

The specifics of each case are most often discovered during interviews called depositions where lawyers have an opportunity to question witnesses under oath. One important issue in a case like this is whether or not you as a parent signed a liability waiver. If you waived your right to sue the instructor and facility, then that document is binding.