How responsible can you expect a four-year-old to be? A lawsuit in Manhattan has raised that question after a judge ruled that a young girl accused of running down an elderly woman while racing a bicycle with training wheels on a sidewalk can be sued for negligence.

Sound tough? Well, in these days when pre-schoolers may have cut their teeth on Baby Einstein videos, started sex education and sport a mobile phone, it may be more difficult to argue that they cannot be held accountable for how they ride a bike.

Actually, the negligence suit is against two children and their mothers, but only one mother and child pair (Dana and Juliet Breitman) sought to dismiss the case against them:

The suit that Justice Wooten allowed to proceed claims that in April 2009, Juliet Breitman and Jacob Kohn, who were both 4, were racing their bicycles, under the supervision of their mothers, Dana Breitman and Rachel Kohn, on the sidewalk of a building on East 52nd Street. At some point in the race, they struck an 87-year-old woman named Claire Menagh, who was walking in front of the building and, according to the complaint, was “seriously and severely injured,” suffering a hip fracture that required surgery. She died three months later of unrelated causes.

Juliet’s lawyer argued that courts have held children under four are incapable of negligence, but Justice Paul Wooten of State Supreme Court in Manhattan declined to stretch that rule to children over four. Juliet, in fact, was only three months short of her fifth birthday.

But what about the mothers, who were said to be “supervising” the children?

“A parent’s presence alone does not give a reasonable child carte blanche to engage in risky behavior such as running across a street,” the judge wrote. He added that any “reasonably prudent child,” who presumably has been told to look both ways before crossing a street, should know that dashing out without looking is dangerous, with or without a parent there. The crucial factor is whether the parent encourages the risky behavior; if so, the child should not be held accountable.

In Ms. Menagh’s case, however, there was nothing to indicate that Juliet’s mother “had any active role in the alleged incident, only that the mother was ‘supervising,’ a term that is too vague to hold meaning here,” he wrote. He concluded that there was no evidence of Juliet’s “lack of intelligence or maturity” or anything to “indicate that another child of similar age and capacity under the circumstances could not have reasonably appreciated the danger of riding a bicycle into an elderly woman.”

One might answer that it all depends on how the child has been brought up. Allowing a couple of four-year-olds to “race” bikes on a city sidewalk does not sound like the decision of normally responsible parents. Even one child on a bike, not racing, could be a hazard. Were there character trainer wheels in the children’s lives?

Other questions arise. Were the moms totally absorbed in conversation and not paying enough attention to their children? Were the kids made more careless by the reassuring presence of their parents? Were they just carried away with the excitement of their game, or was there an element of deliberate recklessness and disregard for others? Aren’t children who are nearly five capable of such an attitude, just as they would be capable of respect and care for a pedestrian — particularly someone who might be their grandmother or great-grandmother?

The New York Times report on this case has drawn hundreds of comments. If it does go to court, it will be interesting to see how it is argued. In the meantime, you be the judge…

Carolyn Moynihan

Carolyn Moynihan is the former deputy editor of MercatorNet