Fully analyzing the merits of a claim requires assessing the contributory negligence of every person, even if one of the people is a child. Understandably, it can be difficult for a jury to consider if a child is mature enough to have the mental capacity to behave as an ordinarily prudent person. The Supreme Court of Texas has established three common law age groups for considering the negligence of a minor in a civil lawsuit, with different standards of care being applied to each.

The youngest age group covers children from birth to five years old. A child under five years old is too young to exercise the “attention, perception, knowledge, experience, intelligence, and judgment” to perceive risks and realize their unreasonable character. Yarborough v. Berner, 467 S.W.2d 188, 190 (Tex. 1971). Therefore, it is not even a question for the jury if a child of this age was contributorily negligent; they are simply too young to be held to any sort of duty or expectation to behave as a reasonable and prudent person.

The oldest age group is not clearly defined by the Supreme Court of Texas, but generally covers children after their fourteenth birthday. As children of this age begin to work jobs, drive cars, and engage in other adult activities, it is reasonable to expect children of such ages to act like adults. Appellate courts in Texas have held that no special considerations are due to minors of such age—their negligence is weighed with the adult standard of care. Austin v. Hoffman, 379 S.W.2d 103 (Tex. Civ. App. – Austin 1964, no wFct).

The final age group covers children between their fifth birthday and the loosely defined older age group. In this middle age group, juries determine the negligence of a minor by assessing if the child failed to behave as an ordinarily prudent child of the same age, experience, intelligence, and capacity would have in the same circumstance. Even though juries consider if a minor of such age is negligent, Texas courts have frequently found that children as old as seven lack the capacity to realize their unreasonable character; therefore, juries are not able to assign contributory negligence to the minor. Even if the jury determines the minor has the capacity to be negligent, the degree of the child’s negligence is handicapped by their age, intellect, and experience.

However, a claim can still be defensible even if no contributory negligence can be assigned to the minor tortfeasor. In Yarborough v. Berner, supra, the Supreme Court of Texas ruled that even though the minor in the claim at issue was too young to be negligent, a defendant could still assert the affirmative defense of sudden emergency and argue they were in no way negligent for the damages at issue.467 S.W.2d at 191. Further, the court ruled that the parents’ failure to supervise their children can be a proximate cause to an accident; however, the negligence of a parent does not bar the child from recovering for their claim, it simply reduces the liability apportioned to the defendant(s). Id. at 189-90.

Marcell Rodriguez Segovia, Appellant v. Houston Metals, LLC, Appellee, No. 14-22-00130-CV 

The 14^th Court of Appeals affirmed a Summary Judgment granted in favor of Lori Wiese's client.

Lori represented a metal scrapping business in Houston, Texas, where a severe injury occurred on their premises to Plaintiff, an employee of a trucking company. Plaintiff fell off his truck filled with scrap metal. Lori discovered that the reason Plaintiff did not also file suit against his non-subscriber employer is that Plaintiff received weekly payments from his employer while on leave from his duties.

The trial court agreed that the Defendant owed no duty to protect or warn Plaintiff against dangerous conditions which were open and obvious and known to Plaintiff, a dangerous condition did not exist on Defendant’s premises at the time of Plaintiff’s fall, and the necessary use exception to the general no-duty rule did not apply nor was it pleaded by Plaintiff.

Associate William Sharp obtained a Take-Nothing Judgment during a bench trial in Dallas County Justice of the Peace Court. The Plaintiff claimed our client negligently performed services on his vehicle, irreparability damaging the engine. At trial Plaintiff sought a new vehicle, and damages associated with the clean up of an oil spill. The Judge agreed with our contention that Plaintiff did not have evidence that our client caused the engine issues and found in favor of the Defendant.