• October 4, 2017

What goes on in the mind of a four year-old? A five year-old? What dangers are “known and obvious” to four or five year-old children? A boy named Shawn went to the house of his great uncle, Peter Carlson, on the Mississippi River as part of a birthday party celebration. Everyone lost sight of Shawn until he was found face-down in the river, having suffered severe brain damage. His family sued Mr. Peterson, the party-thrower/property owner.

Justice David Lillehaug, writing for the majority of the Minnesota Supreme Court, stated the question the Court faced like this:


“[W]as the danger of returning to the Mississippi River to swim alone known or obvious to Carlson’s 4-year-old guest, Shawn, and, even if it was, should Carlson have anticipated the harm to Shawn?”

(1) Why are those the questions that decide the outcome of this case? (2) How are judges qualified to penetrate into the minds of the typical four-to-five year-old child?

(1) Those questions decide the outcome of the case because judicial reasoning is an accretive process — like the growth of a forest. Gradually over time the common law develops and paths emerge that courts are bound to follow as far as they lead.

(2) We would submit that judges (or juries) are not qualified to penetrate the minds of a specific four-to-five year-old child, much less the mind of an average four-to-five year-old child. We’ll take it a step further and suggest they’re not even in a good position to do so with testimony from experts (child psychologists or experts on cognitive development).

In our view, the best analysis to reach the best outcome in cases like this sad situation is the classic “least cost avoider” analysis (discussed recently in another post): As between the property owner and the child, who is in the position to take steps necessary to address the risk of accident?

Using this alternative reasoning, the Minnesota Supreme Court got the right answer.

The dissent, on the other hand, worries about “an enormous expansion in social host liability.”

Note that there will obviously not be any increase in terrible accidents as a result of this decision. Note that there might not be any increase in “social host liability” lawsuits because the clarification of a legal rule likely diminishes rather than increases litigation.

Moreover, if we imagine our tort system works like it is supposed to, the decision will actually decrease the number of similar accidents since a clear legal rule placing risk on social hosts would increase vigilance, precaution, and risk management.

And, finally, as a practical matter, the Minnesota Supreme Court’s decision may well result in a small increase in premises liability insurance to account for the increased risk to property owners in light of the decision but will lower litigation costs (again, because of the clarification of the applicable rule).


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