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Standard of Care Required of Children, 37 Yale Law Journal 618 (1928)


It is undoubtedly true that the law of torts does not generally hold children to the exercise of the same degree of care and intelligence that it requires of adults. To do otherwise, would be to shut its eyes, ostrich-like, to the facts of life and to burden unduly the child's growth to majority. Similar concessions to immaturity are made in other branches of the law. The same realism, however, necessitates the recognition of the fact that at some age prior to twenty-one, and in some situations, a minor is fully as competent as a person over twenty-one and should be held to the same standard of conduct. It is not the purpose of this paper to discover that age and those situations. Assuming that the adult standard is not to be applied, the problem is what standard, if any, is to be used. Again, it is not the purpose of this paper to discuss the legal presumptions that many jurisdictions apply to minors. Such fictitious presumptions can be justified only, if at all, on grounds of expediency and facility in the administration of trials. But, whether or not the law of the particular jurisdiction raises a conclusive presumption that infants under seven years are incapable of contributory negligence, and rebuttable presumptions that minors between seven and fourteen are not capable and minors over fourteen are capable of contributory negligence, still the question is raised: If the minor is capable of negligence, by what standard, if any, is his conduct to be measured?

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