Happy Tortsoween (Costume and Hypo)

Halloween is my second favorite holiday (after April Fools’ Day).  In prior years, I have dressed as the standard of review “abuse of discretion” and the exception to but-for causation for “multiple sufficient causes.”  Can you guess my costume this year?


tortsoween students


This year, I am a child performing adult activities.  Normally, in a negligence lawsuit, defendants who are children (under the age of 18) are held to the standard of care of a reasonable child of that child defendant’s age and capacity. Adults, by contrast, are held to the general standard of care of a reasonable adult under the circumstances.  However, when children are performing adult activities (driving cars or other motorized vehicles is a quintessential adult activity), they are held to the standard of a reasonable adult, not of a child of their age and capacity.

The rationale for the “child performing adult activities” exception is largely one of safety and deterrence.  If children are going to cause harm in ways indistinguishable from adults, and engage in behavior where they cannot be identified as children, so that others can anticipate youthful behavior, the child must accept being held to a higher standard of care in negligence law.

As your treat, below is an excellent Halloween Torts hypothetical that a student presented to me before class yesterday.  If the student, let’s call her K, places Snickers bars outside her door, and a trick or treater with a peanut allergy becomes ill, can K be sued in tort for causing harm to that child?

This is a fantastic hypothetical that can be analyzed as either negligence or an intentional tort.  The student, K, is unlikely to be liable for an intentional tort of battery unless a trick or treater — let’s create a fake plaintiff Ron — can show either purpose or knowledge on the part of K to cause an offensive contact (here, the contact between the candy and Ron’s body).  Since K has no such purpose, and she does not have knowledge to a substantial certainty that Ron will suffer from peanut ingestion, no intentional tort can be proven.  Dismissal as a matter of law in favor of K is likely.

Negligence becomes a harder question.  Here, K has a general duty of ordinary care to avoid causing harm through malfeasance – here, providing the candy.  So, the hard question will be whether K breached her duty by either supplying a candy to which some are allergic or by not warning Ron of the peanuts inside Snickers bars.  Most of the students in the class thought that providing Snickers would not be a negligent breach of the duty of ordinary care, and I tend to agree.

However, because reasonable jurors may differ on this question, I could imagine a court refusing to dismiss this suit as a matter of law and allowing the case to go to a jury.  Even if a jury ultimately finds for K, with no damages for Ron, anticipation of the sheer cost and burden of the lawsuit might deter K (and others) from providing peanut candy.  Thus, tort law may be overdeterring behavior, although you may think this is a good outcome, given the risk of harm to people with peanut allergies.  You may even think that, as a juror, you would find K negligent for providing peanut candy.

Some judges may think it is unreasonable as a matter of law to hold K responsible, and would take the case away from the jury, but many courts would let this go to a jury, as the jury is generally the party who decides the element of breach unless the case is so clear that reasonable jurors cannot differ.

One other final note in thinking about this question.  When working through this question, do not conflate defendant’s negligence with plaintiff’s possible negligence.  Just because Ron (or his parent) is negligent for not checking the Snickers bar does not mean K cannot also be negligent.   In that case, we would compare the negligence of both when assigning damages.