Judge rules that parents aren’t liable for Aspen kindergarten incident | AspenTimes.com

Judge rules that parents aren’t liable for Aspen kindergarten incident

Andre Salvall
The Aspen Times
Aspen, CO, Colorado

ASPEN – Saying she faced a lack of evidence to rule otherwise, Pitkin County Judge Erin Fernandez-Ely decided in favor of the defendants Wednesday in a small-claims case that stemmed from a playground altercation between two Aspen kindergarteners in January 2010.

Parents of a 6-year-old boy were suing parents of another 6-year-old boy to recoup $5,045 in out-of-pocket medical expenses that resulted from a playground incident at Aspen Elementary School. The boy whose parents were defendants admitted that he jumped on the other boy and hurt him, but said he was provoked after his classmate bullied him and shoved snow into his face.

The plaintiff parents, whose son suffered a broken left elbow that required surgery, said their son was running from the other boy and tripped, falling to the icy ground. The defendants’ son then seized the opportunity to jump on their son with the intention of causing bodily harm, the plaintiffs testified.

The Aspen Times is not naming the parents nor the children involved in the case out of sensitivity for the children’s identities. The two boys were not present in court to testify.

The plaintiffs said they repeatedly attempted to discuss the situation with the defendants for several months after the incident but were ignored. But the defendants said after apologizing to the plaintiffs on the day of the incident for the fact that the boy was injured that there was little to discuss – especially since the other set of parents were looking for someone to hold legally liable.

“Our son’s role in this was very unclear,” said the father who was a defendant. “We maintain no liability. I’ve researched this and found no instance in which a 6-year-old in Colorado or any state has been held liable.”

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The plaintiff father believes otherwise: “This is not just a scratch on the hand. This is not just a playground accident,” he said.

The defendants said no one on the playground witnessed the incident. The plaintiffs said a young girl tried to stop the defendants’ son from jumping on the other boy, but they did not want to bring her to court to testify.

Before ruling in the matter, Fernandez-Ely said state law maintains that parents can be held liable for up to $3,500 for incidents in which a child under 18 “knowingly causes bodily injury.” But the law also states that children 6 or younger have not hit the “age of reason” and therefore are not typically liable for criminal acts.

“Seven is the magic age” for liability for criminal acts, Fernandez-Ely said. “Ten-year-olds often do get prosecuted for crimes.”

But the overriding reason in finding for the defendants, she said, was the lack of evidence and witness testimony. Both the plaintiffs and the defendants said they didn’t want to bring their young sons to court.

Fernandez-Ely said determining fault in a fight, whether it involves youths or adults, can be a complex undertaking. She said that while it might be clear that one boy jumped on the other boy and caused injury, “incitement can be a defense.”

She added that school officials should have held some sort of mediation – not among the parents to determine a level of liability – but so that the boys will get along as they move through the school system together.

Realizing at the beginning of the 2010-11 school year that the boys had been placed in the same class, the defendants asked the school to put their son in a different first-grade class.

“I wish the school had called a meeting,” Fernandez-Ely said. “These boys are suffering.”

asalvail@aspentimes.com