Torts

Fact pattern

A is the parent of B, a 10-year-old child. B’s friend, Z, is another 10-year-old child. Both B and Z are of average maturity, intelligence, and physical ability for their age.

A and B invite Z to go fishing with them at a nearby lake. Z has never been fishing before. 

At the lake, A equips both B and Z with fishing rods. The rods have barbed fishhooks at their tips. A hands the fishing rods to B and Z. A instructs B and Z that the hooks are sharp, and should not be allowed to get close to anyone.

One minute later, B and Z begin to swordfight, using the fishing rods as mock swords. A tells B and Z to stop, but they do not obey.

After a few more seconds of play, Z accidentally hits B in the face with the tip of Z’s fishing rod. The hook on Z’s rod enters B’s eye. B screams and falls to the ground in pain. At that moment, A is approximately 10 feet away from B and Z, and A sees the accident occur. 

The injury causes permanent impairment of B’s vision. As a result of witnessing the accident, A suffers from insomnia and depression.

The applicable law allows tort actions to be brought by and against minors. Accordingly, both A and B sue Z. B asserts a claim for personal injury. A asserts a claim for negligent infliction of emotional distress. 

Applicable law permits bystander actions for emotional distress, and rejects the zone-of-danger rule. The applicable law does not impose a minimum age at which a child may be found negligent.

Questions

1. Is Z liable to B on a theory of negligence? Explain.
2. Is Z liable to A on a theory of negligent infliction of emotional distress? Explain.