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Children under six years of age are incapable of fault as that term is used in Wash. Rev. Code § 4.22.070(1) and are not "entities" to which fault may be apportioned under the statute.
The child pulled an emergency stop lever on a bus causing the passenger to aggravate a back injury. The passenger filed an action against the bus company, the child, and the father who was holding the child's other hand when the child engaged the emergency stop switch. The child and the father settled before trial. The trial court found that the child was 80 percent at fault, the father was 10 percent at fault, and the bus company was 10 percent at fault. The court of appeals ruled that the trial court improperly assigned fault to the child, and remanded for reapportionment of fault. The bus company petitioned for review.
Was a 4-year-old child an “entity” to which fault can be apportioned under Wash. Rev. Code § 4.22.070(1)?
On appeal, the court affirmed. The court determined that the trial court erred when it apportioned fault to the child because children under six years old were incapable of fault. The court further held that evidence that the back-up driver, whose responsibilities included assisting the driver, allowed the child to get close enough to the lever to pull it, that the lever itself was placed in such a position that even children could reach it, and that passengers were allowed to approach the front of the bus before it stopped was sufficient to support a finding that the bus company was negligent. Moreover, the finding of total damages was supported by the evidence.