This opinion is subject to revision before final

publication in the Pacific Reporter

2015 UT 79

IN THE

SUPREME COURT OF THE STATE OF UTAH

COREY AND CAROL NIELSEN, for and in behalf of C.N., a minor,

Appellees,

v.

WADE AND LAURA BELL, on behalf of B.B., a minor

Appellants.

No. 20131047

Filed March 24, 2016

On Appeal of Interlocutory Order

Third District, Salt Lake Dep’t

The Honorable Denise P. Lindberg

No. 120903223

Attorneys:

Daniel F. Bertch, Kevin K. Robson, Darren A. Davis,

Nathan Langston, Salt Lake City, for appellees

Peter H. Christensen, Kathryn T. Smith, Salt Lake City,

for appellants

JUSTICE DURHAM authored the opinion of the Court in which

CHIEF JUSTICE DURRANT, JUSTICE HIMONAS, and JUDGE ROTH joined.

ASSOCIATE CHIEF JUSTICE LEE filed a dissenting opinion.

JUSTICE PARRISH did not participate herein. Court of Appeals

JUDGE STEPHEN L. ROTH sat.

JUSTICE DURHAM, opinion of the Court:

INTRODUCTION

¶1 In this appeal we must decide whether there is a minimum 

age below which a child is conclusively deemed incapable of 

negligence under Utah’s common law, and if so, what that minimum 

age is. We hold that children under the age of five, as a matter of 

law, may not be held liable for negligence.
NIELSEN v. BELL

Opinion of the Court

BACKGROUND

¶2 Ms. Nielsen was babysitting a boy who was four years and 

nine months old. The boy threw a toy rubber dolphin at her, striking

her in the eye. Ms. Nielsen had previously received a cornea 

transplant, and, tragically, the impact caused her to lose all vision in 

that eye.

¶3 Ms. Nielsen sued the boy’s parents for negligent 

supervision. She also sued the four-year-old boy for negligence. The 

defendants moved for summary judgment, and Ms. Nielsen 

conceded that she had no evidence that the boy’s parents had been 

negligent. She argued, however, that a dispute of material fact 

precluded summary judgment on the negligence claim against the 

boy. Ms. Nielsen further asserted that a four-year-old boy could be 

liable for negligence under Utah law. The district court agreed, 

ruling that it could not find as a matter of law that the boy was 

incapable of negligence. The court therefore granted summary 

judgment on the negligent supervision claim against the parents and 

denied summary judgment on the negligence claim against the child.

¶4 We granted a petition for interlocutory review of the 

portion of the district court’s order denying summary judgment on 

the claim against the child. We review de novo the district court’s

legal determination that a four year old may be held liable for 

negligence. See Daniels v. Gamma W. Brachytherapy, LLC, 2009 UT 66, 

¶ 46, 221 P.3d 256 (interpretations of the common law reviewed for 

correctness).

ANALYSIS

¶5 State courts have adopted a variety of approaches when 

determining whether young children may be held liable for 

negligence. Some states reject fixed age limits, resolving the issue of 

a child’s capacity to be negligent as a matter of law only where 

“reasonable minds could not differ on the matter.” Lester v. Sayles, 

850 S.W.2d 858, 866 (Mo. 1993). But “the overwhelming majority of 

jurisdictions support the idea of some minimum cutoff age.” 

RESTATEMENT (THIRD) OF TORTS: PHYS. & EMOT. HARM § 10 reporters’ 

note, cmt. d (AM. LAW INST. 2010). Courts in these states have 

adopted different cutoff ages for liability, variously holding that 

children under seven, six, five, or four may not be negligent as a 

matter of law. Id.

¶6 In order to determine whether the four-year-old 

defendant in this case may be held liable for negligently throwing a 

toy at Ms. Nielsen, we assess which of these approaches to the 

liability of young children most closely matches this court’s 

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Opinion of the Court

precedents. Ms. Nielsen contends that Utah should not recognize a 

fixed age cutoff for negligence liability. The four-year-old defendant, 

on the other hand, asserts that our precedents hold that children 

under the age of seven are conclusively presumed to be incapable of 

negligence. Alternatively, the defendant argues that we have 

recognized that children under the age of five may not be held liable 

for negligence.

¶7 We reject the defendant’s contention that this court has 

held that children under seven may not be negligent. We agree, 

however, with the defendant’s alternative argument that children 

under the age of five may not be liable for negligence. We therefore 

reverse the district court’s order denying summary judgment on the 

negligence claim against the four-year-old defendant.

I. THE ILLINOIS RULE

¶8 The defendant first contends that Utah has adopted the 

Illinois rule regarding the liability of young children for negligence. 

Under this rule, children under seven are deemed incapable of 

negligence; for children between seven and fourteen, there is a 

rebuttable presumption against a child’s capacity for negligence; and 

for adolescents fourteen years old and above there is a rebuttable 

presumption of capacity for negligence. RESTATEMENT (THIRD) OF 

TORTS: PHYS. & EMOT. HARM § 10 cmt. b (AM. LAW INST. 2010). The 

Illinois rule is followed in about a dozen states. See id. § 10 reporters’ 

note, cmt. b.

¶9 This court first referenced this rule in Nelson v. Arrowhead 

Freight Lines, 104 P.2d 225, 228 (Utah 1940). But although the Nelson 

court stated that “[o]rdinarily a child under seven years of age is 

conclusively presumed not guilty of contributory negligence,” this 

pronouncement was pure dictum.1 Id. The minor accused of 

contributory negligence in that case was sixteen—well above the 

1 While the child accused of negligence in this case is a defendant, 

the issue of a child’s capacity to be negligent has most often been 

addressed in cases where the defendant has asserted that a child 

plaintiff should be charged with contributory negligence. These 

contributory negligence cases are relevant to this case because the 

capacity for negligence of a child defendant and a child plaintiff is 

measured by the same standard. See RESTATEMENT (THIRD) OF TORTS:

PHYS. & EMOT. HARM § 10 cmt. e (AM. LAW INST. 2010); see also Rowe v. 

Sisters of the Pallottine Missionary Soc‘y, 560 S.E.2d 491, 498 (W. Va. 

2001) (comparative negligence defense requires proof of each of the 

elements of negligence).

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Opinion of the Court

seven-year cutoff age. Id. at 227. Moreover, the sixteen-year-old 

plaintiff’s capacity to be negligent was not at issue. Instead, the 

plaintiff argued on appeal that she was entitled to an instruction 

informing the jury that she should be held to the standard of care of 

persons of similar age, capacity, and experience. Id. Therefore, any 

rule regarding the age when a child may be held liable for 

negligence, or any rule regarding a presumption of either incapacity 

or capacity for negligence, was not relevant to the outcome of the 

case.

¶10 We specifically held that the Nelson court’s articulation of 

the Illinois rule was dictum and declined to follow it. In Mann v. 

Fairbourn, this court had to decide whether a five-and-a-half-year-old 

boy could be contributorily negligent in an accident that caused his 

death. 366 P.2d 603, 604, 606 (Utah 1961). We acknowledged our 

prior statement in Nelson that children under seven may not be 

negligent, but reasoned that “the statement was mere dictum 

inasmuch as the plaintiffs in that case were 16 and 20 years at age” 

and that “[s]uch a rule of law has not been observed by this court in 

other cases.” Id. at 606. The Mann court held that the capacity for 

negligence of the five-year-old plaintiff was a factual inquiry to be 

resolved by a jury. Id. In subsequent cases we continued to ignore 

the Nelson dictum and held that a jury should decide whether a sixand-a-half year old and a child just under six had the capacity to be 

negligent. Donohue v. Rolando, 400 P.2d 12, 13–14 (Utah 1965); Rivas v. 

Pac. Fin. Co., 397 P.2d 990, 991–92 (Utah 1964).

¶11 Despite this court’s refusal to apply the Illinois rule, 

however, we later used at least a portion of that rule. In Kilpack v. 

Wignall, we had to determine as a matter of law whether a seven 

year old had the capacity to be negligent. 604 P.2d 462, 463, 465–66

(Utah 1979). The Kilpack court ignored our caselaw that either 

explicitly rejected or disregarded the Nelson dictum and quoted the 

Nelson opinion’s articulation of the Illinois rule. Id. at 466. Because 

the child plaintiff in Kilpack was seven, this court then applied a 

presumption that he was incapable of contributory negligence. Id. 

We held that because no evidence was presented to rebut this 

presumption of incapacity, the seven-year-old plaintiff was not 

negligent as a matter of law. Id.

¶12 The holding of the Kilpack opinion, however, does not 

control in this case. In Kilpack, we applied the Illinois rule’s 

rebuttable presumption that children between the ages of seven and 

fourteen are incapable of negligence. We had no occasion to apply 

the rule’s conclusive presumption that children under seven are not 

liable for negligence. Indeed, when this court has been presented 

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Opinion of the Court

with claims that five and six year olds have been negligent, we have 

held that the child’s capacity for negligence was a jury question.

Donohue, 400 P.2d at 13–14 (six-and-a-half-year-old child); Rivas, 397 

P.2d at 991–92 (child just under six); Mann, 366 P.2d at 604, 606 (fiveand-a-half-year-old child).

¶13 We therefore reject the defendant’s assertion that Utah has 

recognized a conclusive presumption that children under seven are 

incapable of negligence.2 Statements we have made to this effect are 

dicta, and this court has explicitly refused to follow this rule when 

the issue has been squarely presented. Mann, 366 P.2d at 606.

II. THE RESTATEMENT RULE

¶14 Although this court has never held that children under 

seven may not be held liable for negligence, we have recognized that 

there is an age at which a child is “so young and immature as to 

require the court to judicially know that he is not responsible for his 

act.” Donohue v. Rolando, 400 P.2d 12, 14 (Utah 1965). But we have not 

yet explicitly held what the cutoff age for negligence liability is. This 

court has previously decided this question on an ad hoc basis. An 

examination of our caselaw, though, reveals a dividing line between 

children under the age of five and children aged five and above.

¶15 As noted above, when we have examined the capacity of 

five and six year olds to be negligent we have held that it was a jury 

question unless reasonable minds could not differ on the issue. 

Donohue, 400 P.2d at 13–14; Rivas v. Pac. Fin. Co., 397 P.2d 990, 991–92 

(Utah 1964); Mann v. Fairbourn, 366 P.2d 603, 604, 606 (Utah 1961). 

We have found only one opinion in which this court has assessed the 

capacity of a child under five to be negligent. In Herald v. Smith, a 

motorist struck a four-year-and-ten-month-old girl while she was 

crossing the street. 190 P. 932, 933 (Utah 1920). The girl sued the 

motorist for negligence. Id. at 932. After the trial, the district court 

directed a defense verdict after apparently concluding that the 

evidence could only support a finding that the child’s negligence 

2 We do not resolve the question of whether Utah recognizes a 

rebuttable presumption that children under the age of fourteen are 

incapable of negligence. Our caselaw is in conflict on this point. The 

Kilpack court applied this presumption in a case involving a seven 

year old. But that case appears to contradict earlier cases addressing 

a child’s capacity for negligence that rejected the Illinois rule and 

resolved this issue without referring to a judicially created 

presumption of either incapacity or capacity for negligence. See 

Donohue, 400 P.2d at 13–14; Rivas, 397 P.2d at 991–92; Mann, 366 P.2d 

at 606.

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Opinion of the Court

had contributed to the accident. Id. at 933. On appeal, we held that 

the child could not be charged with contributory negligence: “A 

child of that age cannot, as a matter of law, be held to have 

appreciated the danger and is not presumed to conduct herself as an 

adult person would under similar circumstances.” Id.

¶16 Granted, the procedural posture of Herald makes it a less 

than ideal signpost for determining the minimum age for negligence 

liability under Utah’s common law. The Herald court reversed the 

trial court’s legal conclusion that the child plaintiff had been 

negligent. Notably, we were not affirming a lower court’s legal 

determination that a child had not been negligent. Herald indicates, 

however, that this court’s conclusion that the four-year-old plaintiff 

was not capable of negligence was arrived at “as a matter of law.” Id.

In line with this legal determination, Herald further held that the 

resolution of a factual dispute at trial as to whether the motorist 

sounded his horn before the accident would not affect its conclusion 

that the child did not have the capacity to be negligent, reasoning 

that an “ordinary child of that age could neither appreciate nor 

understand the object sought or the reasons for giving such 

warning.” Id. at 934. We therefore held that upon remand, the child 

plaintiff was entitled to submit to a jury the question of whether the 

motorist had negligently caused the accident, further indicating that 

the Herald opinion had resolved the contributory negligence issue in 

favor of the child plaintiff as a matter of law. Id.

¶17 The Herald court’s holding that a girl two months shy of 

her fifth birthday could not be negligent marks a dividing line with 

subsequent cases holding that five year olds could have the capacity 

to be negligent. See Rivas, 397 P.2d at 991–92; Mann, 366 P.2d at 604, 

606. This division matches the line drawn by the Restatement (Third) 

of Torts, which states: “A child less than five years of age is 

incapable of negligence.” RESTATEMENT (THIRD) OF TORTS: PHYS. &

EMOT. HARM § 10(b) (AM. LAW INST. 2010). The restatement rule is 

consistent with the rule adopted by the majority of states, which 

holds that children under the age of at least five (several states have 

a higher age limit) may not be held liable for negligence. Id. § 10 

reporters’ note, cmt. d. The restatement authors note that “only in a 

tiny handful of states are there actual cases that have permitted 

findings of negligence in the conduct of children who are less than 

five.” Id.

¶18 A number of policy considerations support the 

restatement rule. Children under the age of five have a limited 

capacity to appreciate how their actions can cause harm to 

themselves or others and have an inadequate internal ability to 

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Opinion of the Court

control impulses that may lead to injuries. See id. § 10 cmt. d. Absent 

an adequate ability to foresee consequences or control their behavior, 

“the possibility is slight that the conduct of a child under five is 

either deserving of moral criticism or is capable of being deterred by 

the application of tort rules.” Id. Moreover, assessing a young child’s 

capacity for negligence by placing the child on the witness stand to 

answer questions about her individual understanding of cause and 

effect, foreseeability, and capacity for impulse control is problematic 

to say the least. See id. This is especially true where the trial 

examination would likely occur years after the incident when the 

child has matured, making it difficult for the child to reclaim her 

earlier state of mind. Finally, the restatement rule recognizes that 

there is an age below which it is unseemly to subject a child to the 

judicial process or to adjudicate a child’s liability for negligence.

¶19 Of course, categorical rules are, by their nature, imperfect. 

Children develop at different rates, and some four year olds are 

undoubtedly more mature than some five year olds. Despite the 

inherent drawbacks of age-based rulemaking, however, we must 

engage in this line-drawing process to some extent. Legislatures 

have done so by setting the age at which individuals can work, 

drive, marry, vote, serve in the military, smoke, and drink alcohol, as 

well as establishing the age of consent. Courts also make hard, agebased rules. The Supreme Court has determined that the 

Constitution prohibits the execution of an “adolescent” who 

commits murder just days before his eighteenth birthday, but 

permits the death penalty for an “adult” who commits the same 

crime just days after turning eighteen. Roper v. Simmons, 543 U.S. 551, 

578 (2005); see also id. at 574 (rejecting objections to drawing a hard 

line at eighteen). This court has also created age-based rules as part 

of the common law—finding that parent’s waiver of a minor’s 

prospective claim for negligence is unenforceable, for example. 

Hawkins ex rel. Hawkins v. Peart, 2001 UT 94, ¶ 13, 37 P.3d 1062. And 

although statutes now establish the age of majority, determining the 

age when individuals assume independent legal rights, such as the 

capacity to contract, was a common law function. 42 AM. JUR. 2D

Infants § 4 (2010); RESTATEMENT (SECOND) OF CONTRACTS § 14 cmt. a 

(AM. LAW INST. 1981).

¶20 In each of these instances the advantages of uniformity, 

consistency, and efficiency justify a bright-line rule, despite its 

imperfections. Determining the appropriate age at which each of 

these rules should be applied on an individualized, case-by-case 

basis—e.g., conducting a review process to determine when every 

person is mature enough to vote or consent to sexual relations—

would be so inefficient and create such uncertainty as to be 

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Opinion of the Court

unworkable. Rejecting definitive age-based rulemaking also unduly 

impairs policy making concerning the appropriate ages for certain 

activities. 

¶21 We conclude that the instances where it would be 

appropriate to hold a child under the age of five liable for negligence 

would be rare enough that the social costs of conducting an 

individualized inquiry are not justified. Litigants are entitled to some 

amount of certainty and consistency. And this court has the duty to 

consider the propriety of subjecting children of tender years to tort 

liability, or, when they are plaintiffs, denying them recovery for the 

negligence of others. 

¶22 We therefore adopt the restatement rule that children 

under the age of five may not be held liable for negligence. The 

question of whether a child five or over is capable of negligence is 

reserved for the fact-finder, unless a court determines that no 

reasonable jury could disagree on the issue. Such a rule conforms 

with our precedents and promotes important public policies.

CONCLUSION

¶23 We reverse the district court’s order denying summary 

judgment in favor of the four-year-old defendant. We remand with 

instructions to grant summary judgment.

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JUSTICE LEE, dissenting

ASSOCIATE CHIEF JUSTICE LEE, dissenting:

¶24 The court today adopts a categorical rule exempting 

children under the age of five from a finding of negligence in tort. It 

bases that conclusion on both legal authority and its own 

assessments of cognitive psychology. I agree with some of the court’s 

premises. I accept the need for a categorical age cutoff at some point. 

And I have no doubt that many children under the age of five are 

incapable of negligence in some activities. But I respectfully dissent 

from the court’s adoption of a categorical cutoff at age five because I 

disagree with the conclusion that “the instances where it would be 

appropriate to hold a child under the age of five liable for 

negligence” are “rare enough that the social costs of conducting an 

individualized inquiry” into a child defendant’s mental capacity for 

negligence “are not justified.” Supra ¶ 21. 

¶25 This is not a question for disposition “as a matter of law” 

by reference to an aging body of caselaw. It is, at bottom, a question 

of social science. The relevant field of social science (cognitive 

psychology), moreover, is one that has seen significant advances in 

recent years. For that reason it seems perilous to defer too quickly to 

the armchair assessments of a child’s analytical capacity made by 

judges in decades past.

¶26 I would take a fresh look at the age at which a child may 

properly be charged with negligence. I would do so based on a 

careful assessment of the state of our current understanding of the 

field of cognitive psychology. Recent advances in that field undercut 

the premises of the standard endorsed by the majority. Cognitive 

psychologists do not view all children aged five or older as fully 

capable of the kind of thinking necessary to charge them with 

negligence; nor do they see all children four or younger as 

categorically incapable of that kind of thinking. Instead they 

generally agree that children begin to develop cognitive skills like 

planning and impulse control at about age three, and continue 

developing those skills as they grow older. And although experts in 

this field have identified developmental and environmental factors 

that explain why different children develop at different rates, they 

also generally agree that most children acquire the ability to engage 

in planning and impulse control by the age of eight.

¶27 With this in mind, I would reject the age five cutoff 

adopted by this court and others. I would embrace instead a 

framework that would deem all children under the age of three 

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JUSTICE LEE, dissenting

incapable of negligence and also presume (subject to rebuttal by 

expert evidence) that those who are aged three to seven lack that 

capacity.

¶28 As noted below, I find nothing in the caselaw in this field 

that would sustain the cutoff endorsed by the court. The cases 

adopting a five-year (or seven-year) cutoff for negligence in other 

jurisdictions are based mostly on armchair assessments of cognitive 

psychology advanced by judges. To the extent the cases cite any 

literature from any relevant fields of expertise, moreover, the 

citations are to outdated science. And despite the majority’s 

insistence to the contrary, our court has never held “‘as a matter of 

law’” that a four-year-old is “not capable of negligence.” Supra ¶ 16 

(quoting Herald v. Smith, 190 P. 932, 933 (Utah 1920)). 

¶29 Even if the cited case could be understood to have 

embraced such a holding, I would not be inclined to defer to it on 

this appeal. The Herald case is almost a century old. And our 

understanding of cognitive psychology has advanced markedly in 

the many decades since that decision. A reconsideration of the 

question of where to draw the line on an age cutoff for negligence is 

past due. I would do so here. And I would adopt a framework that 

would deem the four-year-old defendant in this case presumptively 

incapable of negligence, subject to rebuttal on remand by expert 

testimony to be presented by the plaintiffs.

I

¶30 The majority’s approach finds support in judicial decisions 

of our sister states. But I cannot agree that this court has held that a 

child under the age of five is incapable of negligence as a matter of 

law. See supra ¶ 16 (discussing Herald v. Smith, 190 P. 932 (1920)). 

And in any event I would not defer to the outdated, unsupported 

analysis of this important question in the decades-old caselaw in this 

or other jurisdictions.

A

¶31 The majority correctly concludes that this court has never 

expressly adopted “a conclusive presumption that children under 

seven are incapable of negligence.” Supra ¶ 13. And it rightly 

concedes that our past cases “have not yet explicitly held what the 

cutoff age for negligence liability is,” but have instead “decided this 

question on an ad hoc basis.” Supra ¶ 14. Yet the court also asserts 

that our cases have implicitly adopted “a dividing line between 

children under the age of five and children aged five and above.” Id. 

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JUSTICE LEE, dissenting

Specifically, the majority views our decision in Herald v. Smith as 

concluding “‘as a matter of law’” that a four-year-old is “not capable 

of negligence.” Supra ¶ 16 (quoting Herald, 190 P. at 933). And it 

insists that Herald “held that upon remand, the child plaintiff” in that 

case “was entitled to submit to a jury the question of whether the 

motorist had negligently caused the accident, further indicating that 

the Herald opinion had resolved” the question of the child’s 

contributory negligence “in favor of the child plaintiff as a matter of 

law.” Id.

¶32 I read Herald differently. The Herald court’s analysis of the 

child plaintiff’s capacity for contributory negligence had nothing to 

do with establishing a categorical age cutoff as a matter of law. In 

fact the court espoused the opposite view—that “[t]he degree of care 

required of a child must be graduated to its age, capacity, and 

experience, and must be measured by what might ordinarily be 

expected from a child of like age, capacity, and experience under 

similar conditions.” 190 P. at 933-34 (quoting Gesas v. O.S.L. R.R., 93 

P. 274, 279 (Utah 1907)). To the extent Herald was endorsing a 

generally applicable rule, then, it was one counter to the age cutoff 

adopted by the court today—a rule under which the four-year-old 

plaintiff could not “be charged with contributory negligence” “[i]f it 

acted as might reasonably be expected of such a child” of her age. Id. 

at 934 (citation omitted).

¶33 The Herald court’s assessment of the child plaintiff’s 

contributory negligence was not based on a categorical analysis of 

the cognitive capacity of young children. It was based purely on the 

facts and circumstances of that case.

¶34 The Herald court’s holding was a rejection of the theory of 

contributory negligence advanced by the defendant in the case. That 

theory was a stretch—that the defendant driver of a car “had a right 

to assume” that the child pedestrian “would not move forward” 

“when he blew the horn” on his car, and that the child plaintiff was 

therefore negligent because she disregarded the horn. Id. at 933. In 

rejecting that theory, the Herald court did not adopt a blanket rule of 

immunity. It concluded only that “[t]he defendant’s duty to the 

plaintiff cannot be measured by what he might reasonably have 

expected to be the conduct of an adult person in such 

circumstances.” Id. 

¶35 In rejecting the defendant’s theory of contributory 

negligence, moreover, the court was not assessing the cognitive 

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JUSTICE LEE, dissenting

capacity of children in general; it was rejecting the defendant’s 

theory of contributory negligence under the facts of that case. The 

court’s analysis was as follows:

Under the circumstances and facts of this case it is 

immaterial whether such alarm [the defendant’s horn]

was given or not. The plaintiff was a little girl not yet five 

years of age. The ordinary child of that age could neither 

appreciate nor understand the object sought or the 

reasons for giving such warning. If it made any 

impression at all upon her mind, she probably accepted it 

as for her amusement rather than anything else; in other 

words, we regard the fact as to whether defendant 

sounded the horn as immaterial. It would in no way 

relieve the defendant of the charge of negligence, if he 

was negligent in going forward after he observed the 

child crossing the street, nor would it charge the plaintiff 

with contributory negligence.

Id. at 934.

¶36 I find no basis in the above for the conclusion that the 

Herald court in any way established a “signpost for determining the 

minimum age for negligence liability under Utah’s common law.” 

Supra ¶ 16. Its only “signpost” was the proposition that a child is 

held to a standard “‘graduated to its age, capacity, and experience,” 

to be “measured by what might ordinarily be expected from a child 

of like age, capacity, and experience under similar conditions.” 

Herald, 190 P. at 933-34 (citation omitted). And its holding that the 

child plaintiff in that case was not negligent “as a matter of law” was 

based on the court’s analysis of the facts of that case, not an 

assessment of the cognitive capacity of four-year-olds in general.

¶37 In all events the Herald case is almost a century old. Even if 

it could be read to establish a hard age cutoff on the basis of the 

court’s understanding of cognitive psychology, that question would 

surely be ripe for reconsideration in light of advances in our 

understanding in this field in recent decades.

B

¶38 As the majority indicates, the Restatement (Third) of Torts 

concludes that “[a] child less than five years of age is incapable of 

negligence.” Supra ¶ 17 (quoting RESTATEMENT (THIRD) OF TORTS:

PHYS. & EMOT. HARM § 10(b) (AM. LAW INST. 2010)). And a “majority 

of states” has embraced an age cutoff along these lines. Id. Some set 

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JUSTICE LEE, dissenting

the cutoff at five, and others at age seven. But most state courts agree 

that children in this age range are categorically incapable of 

negligence. Only a “handful” deem children under the age of five 

capable of the kind of thinking that would render them eligible for a 

finding of negligence. Supra ¶ 17 (quoting RESTATEMENT (THIRD) OF 

TORTS: PHYS. & EMOT. HARM § 10 reporters’ note, cmt. d).1

¶39 In my view, however, the number of these decisions far 

exceeds the depth of their analysis. The widespread notion of a 

young child’s incapacity for negligence is rooted more in judicial 

tradition than cognitive science. Many courts have alluded to what 

they see as “common knowledge of the mental development of . . . 

children.”2 They view the cognitive capacity of a child as a matter of 

judicial notice, asserting (without citation to expert authority or 

literature) that children under the age of five (or sometimes seven) 

have not “developed the mental capacity for foreseeing the 

possibilities of their inadvertent conduct which would rationally 

support a finding” of negligence.3

¶40 Occasionally our judges have cloaked these conclusions in 

the legal-sounding garb of Latin phrases—deeming young children 

“non sui juris” (not their own master),4 or described by the maxim 

“quaedam personœ sui juris sunt, quaedam olicuo juri subjectœ” (some 

1 But see Beggs v. Wilson, 272 A.2d 713, 714 (Del. 1970) (rejecting an 

age cutoff because “[i]n growing up, each child is physically unique, 

and the law should recognize this uniqueness”); Lester v. Sayles, 850 

S.W.2d 858, 867 (Mo. 1993) (concluding that “[p]ositing a 

predetermined age at which negligence or fault can occur has little 

basis in reason or logic”).

2 Christian v. Goodwin, 10 Cal. Rptr. 507, 509 (Cal. Ct. App. 1961)

(citation omitted).

3 Id. (citation omitted) (holding that a child under the age of five 

is incapable of negligence); see also Cox v. Hugo, 329 P.2d 467, 469 

(Wash.1958) (asserting, without reliance on any expert or scientific 

authority, that a child under the age of six “is a creature of impulse

and impetuosity” and “has no habits of deliberation and 

forethought” (citation omitted)); Swindell v. Hellkamp, 242 So. 2d 708, 

710 (Fla. 1970) (opining that children under six are “conclusively 

presumed to be incapable of committing contributory negligence”).

4 Graham v. Rolandson, 435 P.2d 263, 278 (Mont. 1967).

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JUSTICE LEE, dissenting

persons are independent, and some are subject to another).5 But 

legal-sounding words cannot turn this question into a matter for 

legal analysis; the premise of the age cutoff for young children is a 

scientific question of cognitive psychology, not a proper subject of 

legal analysis or judicial notice. 

¶41 Still, courts have long resisted challenges to the judicial 

prerogative of fixing a lower bound on a child’s capacity for 

negligence. Some acknowledge “the arbitrary nature” of a hard 

cutoff at age five or seven, yet fall back on the notion that such cutoff 

“has been the law” for many decades.6 Another went so far as to 

“agree . . . that the arbitrariness of the rule supports its 

abandonment,” while “reluctantly conclud[ing] that the principle of 

stare decisis require[d] th[e] court” to retain it. Appelhans v. McFall, 

757 N.E.2d 987, 991 (Ill. Ct. App. 2001).

¶42 To their credit, some courts have looked to the cognitive 

psychology literature in fixing an age cutoff for negligence. To the 

extent they have done so, they have relied principally on the 

research and publications of psychologist Jean Piaget.7 Piaget 

grouped children into four rigid developmental categories; he placed 

children under seven in a category of children deemed “incapable of 

understanding the physical world” and “unable to foresee the 

consequences of action.”8 Piaget’s analysis was respected in its day.9

5 Mangum v. Brooklyn City R.R. Co., 38 N.Y. 455, 459 (N.Y. 1868)

(Mason, J.).

6 Graham, 435 P.2d at 267.

7 See generally BÄRBEL INHELDER & JEAN PIAGET, THE GROWTH OF 

LOGICAL THINKING FROM CHILDHOOD TO ADOLESCENCE (1958); Lisa 

Perrochet & Ugo Colella, What A Difference A Day Makes: Age 

Presumptions, Child Psychology, and the Standard of Care Required of 

Children, 24 PAC. L.J. 1323, 1351 (1993) (“The view among courts that 

young children are incapable of caring for their own well-being 

probably emerged from the influence of the developmental portrait 

painted by Piaget.”); see also Tyler v. Weed, 280 N.W. 827, 832 (Mich. 

1938) (relying on the research of Piaget and others, which “brought a 

new light upon the mysterious mind of the child”).

8 Perrochet & Colella, supra note 7, at 1335–36.

9 Perrochet & Colella, supra note 7, at 1334 (noting that “[p]rior to 

the 1970s, the work of Swiss Psychologist Jean Piaget was the 

dominant paradigm among developmental psychologists”).

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JUSTICE LEE, dissenting

But cognitive psychology, not surprisingly, has seen substantial 

developments in the past few decades. And for decades Piaget’s 

approach has been viewed as rooted in outdated notions of rigid, 

universal phases of child development.10

¶43 For these reasons I would not base a decision in this case 

on existing caselaw. However widely accepted, the notion of a hard 

age cutoff at age five finds no reasoned basis in the caselaw. I would 

therefore take a fresh look at the question of a child’s cognitive 

capacity for negligence by examining the relevant literature in the 

field of cognitive psychology.

II

¶44 The majority seeks to root its age cutoff in assertions about 

cognitive psychology. It claims that “[c]hildren under the age of five 

have a limited capacity to appreciate how their actions can cause 

harm to themselves or others and have an inadequate internal ability 

to control impulses that may lead to injuries.” Supra ¶ 18. And it 

insists that “[a]bsent an adequate ability to foresee consequences or 

control their behavior, ‘the possibility is slight that the conduct of a 

child under five is either deserving of moral criticism or is capable of 

being deterred by the application of tort rules.’” Id. (quoting 

RESTATEMENT (THIRD) OF TORTS: PHYS. & EMOT. HARM § 10 cmt. d 

(assuming, without citing support in social science literature, that 

“by the time children reach the age of five, moral rules are becoming 

internalized, rather than being controlled by external sources”)).11

10 Id. at 1336 (explaining that “Piaget’s views have been 

challenged by cognitive psychologists”).

11 The Restatement asserts that “modern developmental 

psychology tends to divide the years before adulthood into several 

phases”—birth to two, two to six, six to eleven, and eleven to 

eighteen. Id. § 10 cmt. b. But there is very little that is “modern” 

about the Restatement’s notions of cognitive psychology. Its 

“phases” are based on the outmoded thinking of Piaget, who 

adopted similar age cutoffs. See Perrochet & Colella, supra note 7, at 

1335–36. So the Restatement seems suspect for reasons identified 

herein. See infra ¶¶ 46–50. And it also seems problematic for another 

reason: It adopts a cutoff at an age (five) that falls in the middle of one 

of its listed phases of development. RESTATEMENT (THIRD) OF TORTS:

PHYS. & EMOT. HARM § 10 cmt. b.

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JUSTICE LEE, dissenting

¶45 I do not doubt that the majority’s premises hold for many 

children under the age of five in some circumstances. But I cannot 

agree that most all such children are incapable of the kind of 

thinking required to sustain a finding of negligence—or that so 

many of them lack that capacity that we should endorse a hard fiveyear cutoff as a matter of law.

¶46 In recent decades cognitive psychologists have repudiated 

the notion that children become capable of the kind of thinking 

necessary to sustain a finding of negligence only at the age of five. 

Experts in this field have come to understand that “children vary 

widely in their mental development and do not move magically 

from one developmental stage to another simply because they have 

celebrated a birthday.”12 Importantly, cognitive psychologists have 

identified an age younger than five at which some young children 

begin to acquire the mental attributes necessary to be held morally 

culpable and to be deterred from such behavior. They generally 

agree that some children acquire those attributes as early as age 

three.13 And they have identified factors that affect the rate of 

development of such attributes in individual children—such as the 

physical development of the brain and the social environment that 

shapes cognitive human responses.14

¶47 To merit attribution of fault, children must be able to 

foresee the consequences of their actions and avoid them by 

controlling their impulses. This involves the ability to plan—to 

“understand and anticipate the causal connection between actions 

and outcomes.”15 In order to plan, children “must (1) have the ability 

to understand cause and effect relationships in the physical world; 

12 Perrochet & Colella, supra note 7, at 1337.

13 See, e.g., Rochel Gellman, Cognitive Development, in 2

D.L. STEVENS’ HANDBOOK OF EXPERIMENTAL PSYCHOLOGY 533, 537540 

(3rd ed. 2002) (compiling studies showing increasing awareness of 

cognitive ability in children at age three or even earlier); John R. Best 

& Patricia H. Miller, A Developmental Perspective on Executive 

Function, 81 CHILD DEV. 1641, 1643-52 (2010) (discussing recent 

studies measuring inhibition in young children).

14 Perrochet & Colella, supra note 7, at 134850; see also generally

Tracey Fay-Stammbach et al., Parenting Influences on Executive 

Function in Early Childhood: A Review, 8 CHILD DEV. PERSP. 258 (2014).

15 Perrochet & Colella, supra note 7, at 1339 (citations omitted).

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JUSTICE LEE, dissenting

(2) believe that actions produce outcomes in the physical world; and 

(3) have the ability to exercise self-regulation.”16 Young children 

vary widely in their capacity for this kind of thinking because they 

develop cognitive abilities at different rates.17

¶48 Core executive functions, including working memory, 

inhibitory control, and cognitive flexibility, are key components in 

brain development during preschool years.18 “Executive 

functions . . . make possible [skills such as] mentally playing with 

ideas; taking the time to think before acting; meeting novel, 

unanticipated challenges; resisting temptations; and staying 

focused.”19 Individual components of executive function emerge 

before the age of three.20 Primitive signs of working memory and 

inhibition can be observed in infancy, and experts have identified 

substantial variability in the development of this attribute among

young children.21 From age three and on, children typically undergo 

the most significant period of executive function development.22

¶49 Of particular relevance to a child’s capability for 

negligence is the development of inhibition: “[I]nhibition is a 

necessary precursor to the forward-planning, self-regulating, goal16 Id.

17 Perrochet & Colella, supra note 7, at 1337 (“[C]hildren vary 

widely in their mental development and do not move magically 

from one developmental stage to another simply because they have 

celebrated a birthday.”).

18 See generally Adele Diamond, Executive Functions, 64 ANN. REV.

PSYCHOL. 135 (2013); Nancy Garon et al., Executive Function in 

Preschoolers: A Review Using an Integrative Framework, 134 PSYCHOL.

BULL. 31 (2008).

19 Diamond, supra note 18, at 135.

20 Garon at al., supra note 18.

21 See generally Peter J. Anderson & Natalie Reidy, Assessing 

Executive Functions in Preschoolers, 22 NEUROPSYCHOL. REV. 345, 355

(2012).

22 See, e.g., HARV. UNIV. CTR. on the Developing Child, In Brief: 

Executive Function (2012), https://perma.cc/G3E8-G782 (noting that 

“executive function skills . . . begin to develop shortly after birth, 

with ages 3 to 5 a window of opportunity for dramatic growth in 

these skills”).

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JUSTICE LEE, dissenting

directed, higher processes that integrated executive functions 

engender.”23 Studies show that there is rapid change in developing 

inhibitory control between the ages of three and five.24 Most children 

are able to demonstrate inhibitory control by the age of five,25 and a 

child’s capacity for inhibition improves markedly through the age of

seven.26 So the ages identified in the caselaw are not entirely 

arbitrary. But the cognitive psychology literature does not support 

the notion that most all children under the age of five are incapable 

of inhibition. At least some children at younger ages have that 

capacity.

¶50 A child aged three or four may well possess sufficient 

capacity for executive functions like planning and inhibition to be 

held responsible for at least some kinds of basic life activities. And 

for me that is a sufficient ground for rejecting the five-year cutoff 

advanced by the majority. Our tort law, after all, is not just aimed at 

protecting the interests of defendants; it must also account for the 

interest of providing compensation to injured plaintiffs.

¶51 With the above in mind, I would adopt a tiered framework 

for assessing the negligence of children: (a) children under the age of 

three would be categorically immune from a finding of negligence; 

(b) children between the ages of three and seven would be subject to 

a presumption of incapacity for negligence—a presumption that 

could be rebutted by expert testimony establishing the individual 

child’s capacity for the kind of executive functions (planning and 

inhibition) necessary to hold them responsible for the actions in 

question; and (c) children aged eight or older would be held to a 

standard of a reasonable child of like age, capacity, and experience 

under similar conditions. This framework seems to me to follow 

from the premises of cognitive psychology outlined above. 

23 Jacqui A. Macdonald et al., Age-Related Differences in 

Inhibitory Control in the Early School Years, 20 CHILD 

NEUROPSYCHOL. 509, 510 (2014).

24 HARV. UNIV. CTR., supra note 22; see also generally Philip David 

Zelazo et al., The Development of Executive Function in Early Childhood, 

68(3)in Monographs of the SOC’Y for Res. in Child Dev. 68(3) (2003).

25 Macdonald et al., supra note 23, at 509; see also Anderson & 

Reidy, supra note 21; Livia Freier et al., Preschool Children’s Control of 

Action Outcomes, DEV. SCI., Oct. 28 2015, at 13.

26 Macdonald et al., supra note 23, at 509.

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JUSTICE LEE, dissenting

¶52 This framework would lead to an affirmance of the district 

court’s decision in this case. Because the child defendant in this case 

was four years old, he should be entitled to a presumption that he is 

incapable of negligence; but the plaintiffs should also be entitled to 

present evidence aimed at rebutting that presumption. I would 

affirm and remand to give the plaintiffs a chance to present evidence 

of the defendant’s capacity for the kind of thinking necessary to hold 

him responsible for the injury he caused by throwing a toy at his 

babysitter.

¶53 That act was a fairly simple one. At least some four-yearolds seem capable of anticipating the consequence of the basic act of 

throwing something at another person, and of controlling their 

impulse to do so. In any event I would leave such questions for caseby-case disposition by the court on the basis of expert testimony 

instead of foreclosing the possibility as a matter of law.

¶54 I acknowledge the complication introduced by the likely 

gap between the date of the tort and the time when the child’s 

cognitive capacity is assessed by the court. See supra ¶ 18. But the 

majority overstates the problem. Under my framework the child’s 

capacity would not be judged on the basis of trial testimony from the 

child as to “her individual understanding of cause and effect, 

foreseeability, and capacity for impulse control.” Id. It would be 

judged on the basis of expert testimony. And that testimony could 

often be judged as a matter of law on pretrial motions.

¶55 Expert analysis of a child’s capacity for negligence would 

be complicated by the noted time gap between the tort and the 

decision by the trial judge. But the complication is hardly intractable. 

A cognitive psychologist could inquire into the child’s history and 

experience and offer an opinion on the child’s likely ability to engage 

in the sort of planning and inhibition necessary to be responsible at 

the time of the activity in question. And ultimately the presumption 

would go against allowing a suit to go forward. So if the time 

problem identified by the majority becomes too difficult, it will count 

against a determination of a child party’s capacity for negligence.

¶56 The timing problem, moreover, is hardly evaded by the 

majority’s approach. The problem remains for the children aged five 

or older left open to a finding of negligence by the court. So the 

question presented in this case should not be resolved on the basis of 

the timing problem identified by the majority. It must be resolved by 

our careful assessment of the age below which most all children are 

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JUSTICE LEE, dissenting

incapable of the kind of thinking required to sustain a determination 

of negligence.

¶57 The answer to that question is a difficult one. Our current 

understanding of cognitive psychology suggests that the answer is 

age three. It also indicates that many children between the age of 

three and seven are similarly incapable. I would adopt a legal 

framework that reflects this understanding.

III

¶58 Few young children are likely to engage in the kind of 

risky activity that will often result in significant harm to others. And 

when they do, many would-be claimants are likely to cut them some 

slack for one reason or another—in recognition, for example, of their 

minimal capacity for culpability, or their limited resources (absent 

insurance) for payment of damages. In the rare case when a young 

child is brought to bar, however, our law should reflect the current 

understanding of cognitive psychology. The framework that I 

propose would accomplish that objective.

¶59 It would not, however, open any floodgates for child tort 

litigation. My framework would impose a presumption that sweeps 

more broadly than the majority’s age cutoff. It would hold children 

aged three through seven presumptively incapable of negligence, 

subject to rebuttal by expert testimony.

¶60 For many children and many activities, this presumption 

would be difficult to rebut. But at least some young children are 

likely to be shown capable of understanding the likely consequences 

of the kind of basic activity at issue in this case—of throwing a toy at 

another person’s face—and of controlling their impulses in such acts. 

I would not foreclose the possibility of such a determination as a 

matter of law. 

¶61 I dissent from the majority’s adoption of a cutoff at age 

five because I find no basis for it in the caselaw or in the relevant 

field of science. I also find the majority’s focus short-sighted. Its 

analysis of the relevant policy considerations is focused exclusively 

on the question of a defendant’s capacity for moral missteps. Yet tort 

suits are a two-way street. They are aimed not only at deterrence of 

unreasonable conduct but also at compensation for the injuries that 

are caused thereby. I would also consider the claimant’s interest in 

compensation before we decide to cut off an entire category of 

claims. And because at least some children between the ages of three 

and seven are capable of planning and impulse control, I would 

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JUSTICE LEE, dissenting

leave the door open to the possibility of compensating a plaintiff 

who is both injured by a child defendant and who can prove by 

expert testimony that the child is capable of negligence.

¶62 The majority’s decision is also short-sighted in a second 

respect: It ignores the effect of its decision in cases initiated by child 

plaintiffs. If young children are mentally or morally incapable of 

negligence, they will not only be immune from suit as defendants; 

they will also be deemed incapable of fault when they initiate suit as 

plaintiffs.27 That prospect raises the stakes for our decision today. I 

suspect that more children file suit as plaintiffs than are named in 

suits as defendants. If so, the predominant effect of today’s decision 

will not be to restrict liability in suits involving children but to 

expand it. If no young plaintiff will ever have any fault attributed to 

him in a negligence suit, the defendant in such a suit will be left with 

full responsibility in every case no matter how minimal his degree of 

actual relative fault.

¶63 Consider a (presumably common) case involving a child 

pedestrian plaintiff and a somewhat older driver defendant. The 

driver defendant will be deemed 100 percent at fault in 100 percent 

of the cases—even if the defendant is barely negligent and the 

plaintiff is borderline reckless. So a driver who exceeds the speed 

limit by one mile per-hour will be 100 percent at fault even in a case 

filed by a plaintiff who recklessly darted into the roadway in full 

view of an oncoming car.28 So long as the plaintiff is under the age of 

five, he can never have any fault attributed to him under the 

standard adopted today. 

27 See RESTATEMENT (THIRD) OF TORTS: PHYS. & EMOT. HARM § 10

cmt. e. (“The rules relating to children and negligence apply also to 

children and contributory negligence.”); Benallo v. Bare, 427 P.2d 323, 

325 (Colo. 1967) (finding children under six incapable of contributory 

negligence); Swindell v. Hellkamp, 242 So. 2d 708, 710 (Fla. 1970) 

(holding that children under seven are “conclusively presumed to be 

incapable of committing contributory negligence”).

28 Swindell, 242 So. 2d at 710 (concluding that a nearly five- yearold girl who darted into traffic could not be held contributorily 

negligent); Benallo, 427 P.2d at 325 (finding that six-year-old who 

darted across the street could not be held contributorily negligent); 

Baker v. Alt, 132 N.W.2d 614, 620 (Mich. 1965) (holding that a sixyear-old who rode his bike against traffic at an excessive speed could 

not be held contributorily negligent).

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JUSTICE LEE, dissenting

¶64 That will hold for any plaintiff so long as the defendant is 

at least five years old. Thus, the prospect of full fault for the barely 

negligent defendant would hold if the hypothetical involves not an 

adult driver of a vehicle but a five-year-old operator of a bicycle or a 

motorized scooter. The five-year-old is 100 percent at fault as a 

matter of law even if his conduct is only barely unreasonable and the 

pedestrian’s acts border on reckless.

¶65 I find these prospects troubling. And I see no legal or 

scientific basis for adopting the age five cutoff that will lead us down 

this path. I respectfully dissent.

22