In prior installments of this series, we looked at criminal and contract liability for minors. Today we look at minors and torts. The rules here are fairly straightforward, but there are different rules for each theory of liability (e.g. intentional misconduct, negligence).
Although many torts resemble crimes, they are still civil wrongs. Thus, the aim of tort law is to compensate the plaintiff rather than to punish the defendant, except in egregious cases. This is why, as we shall see, minors–even very young ones–tend to be more liable for torts than they are for crimes. It may do no good to punish a five year old for a crime, since the child may not understand the crime or the punishment, but if there has been an injury then it is only just and fair to compensate the victim. That’s the theory, anyway.
I. Intentional Misconduct
Intentional torts are things like assault, battery, false imprisonment, trespass, conversion, and so forth. A common element running through all of them is that the tortfeasor (i.e. the person who committed the tort) must have intended to commit the tort. Intent can mean acting purposefully or it can mean acting with knowledge to a substantial certainty that the tort would result. Note that this does not mean that one has to intend an injury. As you can see from the list of examples, this is the kind of thing that superheroes and supervillains alike may frequently be accused of.
The classic example is battery. Common law battery is defined as intentionally causing a harmful or offensive contact with the person of another or with an object closely associated with the person (e.g. something they are carrying).
The general rule for minors is that minors are liable for their intentional torts if they in fact intended the wrongful action or had knowledge to a substantial certainty that the wrongful action would result. Except inasmuch as it may defeat an allegation that the defendant had intent or knowledge, the defendant’s age does not matter. Garratt v. Dailey, 279 P.2d 1091, 1094 (Sup. Ct. Wash. 1955). This approach continues today. Recently a New York court ruled that an intentional tort suit against a four year old could proceed (NB the court did not rule that the child was liable, just that such a child could be liable).
This may seem like a harsh rule, but remember that the goal of tort law is to compensate the victim, not to punish the defendant.
As the seriousness of the misconduct lessens, so does the rule of liability for minors. Negligence is generally defined as breaching a duty of reasonable care owed to the plaintiff, thus causing an injury to the plaintiff. Certainly one could go into a great deal more detail, but here we’re really only interested in the duty of care, since that’s the part that really varies with age.
A. The General Rule
For adults, the duty of reasonable care is generally measured thusly: given the likelihood of the injury and the severity of the injury, would taking steps to avoid the injury have been cheaper? The theory is that a reasonable (or rational person) can only be expected to take the cheaper route, so if it’s cheaper, on average, to avoid the problem, then that’s what the law requires. But this presumes an ordinary adult’s understanding of the likelihood of the injury, its severity, and what steps could be taken to avoid it. What if the defendant is a child?
The general rule is that “a child’s negligence is to be determined by a standard of care which is based upon an individualized assessment of the child’s age, intelligence, maturity, and other factors relevant to the conduct involved.” Moffitt v. Carroll, 640 A.2d 169, 174 (Sup. Ct. Del. 1994). So a very young superpowered individual would be granted a great deal more leeway when it comes to alleged negligence, though enhanced intelligence would weigh against them. Familiarity with one’s superpowers (or lack thereof) would probably count as another ‘factor relevant to the conduct involved.’
It should be noted that some jurisdictions presume very young children (typically age seven or younger) to be incapable of negligence. See, e.g., Jorgensen v. Nudelman, 195 N.E.2d 422 (App. Ct. Ill. 1963). That may be relevant for a superpowered child causing accidental damage, but there are very few superheroes or supervillains that young.
B. The Big Exception
There is a significant exception to this general rule, however, and that is when children undertake adult activities, such as driving a car on public roads. Whether a given activity is an adult activity is determined on a case-by-case basis, but the usual factors are whether it’s an activity normally undertaken only by adults and whether adult qualifications are required. Restatement (Second) of Torts § 283A comment c (1965). Some courts also consider whether the activity is dangerous or hazardous to others. See, e.g., Goss v. Allen, 360 A.2d 388, 390 (Sup. Ct. N.J. 1976).
It’s probable that a court would hold that fighting crime is an adult activity. Although it’s sometimes undertaken by children, it is a dangerous activity and hazardous to others by its nature. Thus, underaged superheroes may find themselves judged as adults if they negligently injure bystanders or harm property during a fight.
III. So Who Pays For All This, Anyway?
With all these ways that a child can be held liable in tort, one wonders what the point is, exactly. After all, most children have little in the way of assets, yet they are capable of causing significant damage to people and property. The answer is twofold: insurance and parents. In the case of young superheroes and supervillains, however, neither of those are likely to apply. The problems of insuring against the damage caused by superheroes and supervillains has been discussed here before, and insuring a superhero–especially an underage one–against negligence in the course of duty would likely be prohibitively expensive. As for parents, well, most young superheroes seem to be orphans or runaways. The exceptions either hide their superhero identity from their parents (which likely defeats parental liability) or have superheroes for parents. As a result, plaintiffs may not have anyone with deep pockets to go after.
Although young superheroes and supervillains may be theoretically liable for their intentional torts and may be treated as adults for their negligence, it’s unlikely to present a problem in practice. Without assets of their own, applicable insurance, or an available parent to lean on, most young superpowered individuals are probably judgment proof.