“Civil actions against one minor by another are quite rare,” at least according to the opinion in Robinson v Fellin, decided Jan. 2 in the Alberta Court of Justice. That seems to be understating the rarity, at least if you read the first part of it literally, and in the next paragraph I am going to pretend we did that.
Minors don’t have the legal capacity to sue or be sued themselves, so any action involving one would have to be brought or defended by a parent, guardian, or some other authorized legal representative. (The parents were doing that here.) Even if a minor could file an action on their own behalf, they wouldn’t know how to do it, couldn’t afford the filing fee, and don’t know words like “hereinafter.” You can’t file a complaint without the word “hereinafter,” according to about 85% of adult lawyers, so these kids would be out of luck. Also, there would be very little point in suing a minor defendant, because at least in my experience the little deadbeats don’t have any money.
I guess there is also the point that usually, someone who hasn’t reached the age of majority isn’t legally responsible for their actions. That age is usually defined by statute, although, as we have discussed, that isn’t the case in Connecticut. See “Jury Finds for 12-Year-Old in Closely Watched Negligent-Hugging Case” (Oct. 13, 2015) (reporting jury found defendant did not breach the duty to act as “a reasonable eight-year-old” would have under the circumstances).
That is probably also true in Canada, where the age of majority appears to be 18. But to be honest, I wasn’t that comfortable running searches using terms like “age of majority in ____,” even for an important research purpose like this one. <clears browser history> I had hoped the Robinson court would discuss this issue in the opinion, but it went a different route.
According to the opinion, the incident occurred at a day-care facility in 2022, when the future plaintiff and defendant were nine and 11 respectively. “[A]t around 11:00 am [a fact that is in no way relevant], the two boys were playing with a toy dinosaur.” Now, this will shock you, given that there were two boys but only one toy dinosaur, but “[s]ome type of dispute over the toy apparently took place.” Unsurprisingly, the dispute turned violent. Surprisingly, this toy-related violence may have caused a serious injury:
In a swatting match the toy was used by the Defendant boy to strike at the Plaintiff. In the process, the Plaintiff’s finger was struck…. The injury caused a serious dislocational fracture to the Plaintiff’s “ring finger” on his right hand. The finger was essentially severed at the bone but still attached. The injury required surgery or the finger would apparently have been lost. Unfortunately no actual hospital or doctor’s records were produced.
Emphasis added. That’s why I said “may.” Generally, when there has been surgery, there is some sort of record of it. (If not, you chose the wrong surgeon.) In fact, the association between the two is strong enough that it’s fair to argue a plaintiff who hasn’t produced medical records hasn’t met their burden to prove surgery occurred. But again, the court did not go this route.
Instead, it seems to have reasoned that nobody did anything wrong. The defendant’s parents (who were also defendants and acted as his legal representatives) weren’t supervising at the time. (The day care might have had some responsibility, but it was no longer in business.) There was no evidence of “encouragement” or “poor child-rearing.” According to the court, at trial “[t]he Plaintiff’s mother seemed fixated on the Defendant’s parents’ lack of attention or contact” with her, not any negligent conduct. But that’s not a basis for liability. So the parents weren’t liable. Nor was the kid:
[T]he issue of consent and voluntary assumption of risk are also relevant. I assess the incident as an unfortunate “fluke” injury that could not easily have been anticipated. It was not in my opinion part of any concerted or intentional assault. It was a highly accidental fluke from children engaging in typical enough child activities. Reasonable people expect the possibility of children having minor disagreements and minor altercations. Children in these situations are within the expected scope of risk of injury, especially a difficult to foresee risk.
To me this seems like the right result but for the wrong reasons. Consent and assumption of risk are valid defenses (the latter can also be a comical one), but here the plaintiff was a minor, and again, minors generally don’t have the legal capacity to consent or (I think) to assume risks on their own behalf. If the parents weren’t negligent, the day care was out of business, and the minor defendant was … a minor, then the plaintiff is out of luck for those reasons, not because of these two defenses. Still, the right result. And I don’t feel too bad about that here because, you know, no medical records.
If this had happened in the United States, they’d probably have sued the toy manufacturer claiming the dinosaur was defective in some way. Not that I want to give them any ideas.
