Who Is At Fault When a Child Runs Into Traffic in Bonita Springs?
The calls I dread most are the ones about children. After more than thirty years representing accident victims out of our office in Bonita Springs, I can tell you that nothing prepares you for them — not the trial work, not the volume of files, not anything. So when a parent calls and asks whether their child can be at fault for running into traffic, I want to give them an answer that’s clear, grounded in Florida law, and free of the hedging that helps no one.
The short answer is that Florida treats young children very differently from adults on this question. The longer answer involves a specific rule about how young is too young to be at fault, a higher duty of care drivers owe in places where children are present, and a legal move drivers’ insurance companies will sometimes use to flip blame onto the parents. I’ll walk through all of it.
The “Rule of 6” — children under 6 cannot be at fault
Florida courts have followed a long-standing precedent (the case is Swindell v. Hellkamp, if you want to look it up) that children under the age of 6 are conclusively presumed incapable of negligence. In plain English: if a five-year-old chases a ball into the road, a jury isn’t allowed to assign any percentage of fault to that child. Legally, the child is 0% responsible. Drivers and their insurance companies will sometimes try to argue otherwise. They lose.
For children 6 and older, courts use a “reasonable child” standard. The question becomes what another child of the same age, intelligence, and experience would have done. That’s a more flexible test, and it leaves room for a jury to find some shared fault as kids get older. A 9-year-old who darts out from between two parked cars is almost certainly not going to be assigned the same fault percentage as the 35-year-old driver going 40 in a 25. A 16-year-old who jaywalks across Bonita Beach Road against a green light, looking at a phone, is a different conversation entirely.
The driver’s duty of care is higher around children
Florida law doesn’t just hold children to a different standard. It holds drivers to a higher one in places where kids are likely to be around:
- School zones and playgrounds. The case law uses the phrase “anticipate childish conduct,” meaning if a driver sees children, the driver is on notice that one of them might do something unpredictable, and is legally required to drive accordingly.
- Residential neighborhoods. If a driver sees children playing on a sidewalk, they are required to slow down and stay extra alert. In our practice, that means the residential pockets running off Old 41, the streets feeding into Bonita Beach Road, the neighborhoods along Imperial Parkway, the places where most of our local child-pedestrian cases happen.
Three Florida statutes drive most of these cases. Florida Statute 316.172 is the school bus stop-arm law: if a school bus has its red lights flashing and stop arm extended, traffic in both directions stops at least 30 feet away unless there is a paved median between you and the bus. Section 316.130 requires drivers to stop and remain stopped for any pedestrian in a marked or unmarked crosswalk, and posted school zone speed limits drop to 15–20 mph during arrival and dismissal windows. Section 316.1985 places the duty on a driver backing up to confirm the path is clear, not on a small child to stay out of it.
One thing I want to address: the “Sudden Emergency” or “Dart-Out” defense. A driver who hits a child appearing from behind a parked car will sometimes raise this, arguing the accident was unavoidable for any cautious driver. Sometimes it works. Most of the time it doesn’t, especially if there’s any evidence the driver was speeding or distracted. The doctrine doesn’t protect a driver who wasn’t already paying attention.
The “Fabre” defense — when the driver tries to blame the parents
Even when the child is legally 0% at fault, the driver’s insurance company will often try to name the parents as a “Fabre Defendant.” The term comes from a 1993 Florida Supreme Court case, Fabre v. Marin, and it lets the driver argue that the parent was negligent in supervising the child.
Why does that matter? Because in Florida, fault gets divided by percentage. If a jury decides the driver was 60% responsible and the parent was 40% responsible for the supervision lapse, the child’s recovery gets reduced by 40%. The math is brutal.
I don’t say this to scare anyone. I say it because the parent’s account of what happened: what supervision was in place, what the driver should have seen, what the driver could have done differently, needs to be prepared carefully from day one. In our experience, insurance carriers raise it in nearly every child-pedestrian case.
Florida law also doesn’t require a parent to maintain unbroken eye contact on a child every second. It requires reasonable supervision for the child’s age and the situation. A 10-year-old riding a bike home from a friend’s house on a Saturday afternoon is engaged in age-appropriate activity. A 4-year-old playing unattended in a front yard that opens directly onto Old 41 is not. Courts know the difference. Even if a parent ends up sharing some percentage of fault, it almost never erases the driver’s responsibility, it just redistributes it.
Two changes from Florida’s 2023 tort reform that families need to know
The statute of limitations was cut in half. The time you have to file a personal injury claim in Florida used to be four years from the date of the accident. As of March 2023, it’s two years. That clock starts running fast, and it doesn’t pause while a child is recovering or while a family is figuring out what to do next.
Florida moved to “modified comparative negligence.” If a victim is found more than 50% at fault for their own injury, they recover nothing. Children under 6 can’t be at fault, so the rule doesn’t touch them. But for older kids, and for parents being targeted with a Fabre defense, the 50% threshold matters.
What we did for a Bonita Springs client
One of the first larger cases I took on, years ago, was a six-year-old boy who chased a ball into the road. He was hit so hard he flew across the road (out of his shoes, literally) and landed on his head. He was in the hospital for months. He came out of it with moderate permanent brain damage.
His mom was a single parent. She was the kind of client you don’t forget. I would visit him in the hospital. We’d bring food when she couldn’t think about cooking. Her family, and they were a big extended family, sort of took us in. We didn’t have children of our own at the time, and we got invited to family reunions for years afterwards. She still checks in from time to time, decades later.
That case settled at the policy limit. Because the client was a minor, the settlement had to be approved by a Florida judge under what’s called a “minor court settlement”: the money is placed in a court-supervised account that the child receives at age 18. By the time he turned 18, he had enough to pay for college and get a real start in life. He did.
The case is confidential beyond that. But I’ll say one thing about it: the legal answer matters, but how you take care of a family in the worst week of their lives matters just as much. That’s been true across thirty years of practice.
What to do if your child was hit by a car
If you’re reading this in the aftermath of a crash, here’s the order I’d talk a parent through on the phone:
- Get medical care for your child first. Even if the injuries seem minor in the moment, since kids are stoic and head injuries can take 24–48 hours to manifest. The ER visit creates the medical record everything else depends on.
- Call the police and get a crash report. Don’t accept the driver’s offer to “handle it privately.” A police report fixes the timeline before memories fade.
- Photograph the scene if you can. The vehicle’s resting position, any skid marks, the line of sight from where the driver was approaching, signage, lighting.
- Don’t give a recorded statement to the driver’s insurance company. They will call. They will be polite. It is not your job to give them a recorded statement, and giving one almost always hurts your case.
- Keep a “what hurts” journal for your child. Even brief daily notes: sleep changes, mood, things they used to do that they’re avoiding now. This becomes powerful evidence later.
- Talk to a personal injury attorney before you settle anything. Florida’s two-year statute of limitations runs out faster than people think.
Key takeaways
- Children under 6 cannot legally be assigned any fault in Florida — the Rule of 6 is conclusive.
- Drivers owe a heightened duty of care in school zones, residential neighborhoods, and anywhere children are predictably present.
- The Fabre defense lets drivers’ insurance companies try to shift blame onto parents for negligent supervision; it almost never erases the driver’s responsibility, but it can reduce recovery.
- Florida’s 2023 tort reform cut the statute of limitations in half, to two years from the date of the accident, and adopted a 50% modified comparative negligence rule.
- Speeding, distracted driving, failure to yield, and DUI are the four driver behaviors that drive fault percentages up the fastest in child-pedestrian cases.
Frequently Asked Questions
Can a 5-year-old be partially at fault for an accident in Florida?
No. Under Florida’s Rule of 6 (from Swindell v. Hellkamp), children under age 6 are conclusively presumed incapable of negligence. A jury is not allowed to assign any fault to a child under 6, even if the child ran into the road.
What about an older child?
For children 6 and older, courts apply a “reasonable child” standard — comparing the child’s actions to what another child of the same age, intelligence, and experience would have done. A jury can find some shared fault, but the child’s age weighs heavily and the threshold is much lower than for adults.
The driver says my child “darted out” — does that get the driver off?
Sometimes. The Sudden Emergency or “Dart-Out” Doctrine can be raised when a child appears from a hidden position. But it only protects drivers who were otherwise following the law — not speeding, not on the phone, paying attention. In most cases where it’s raised, the driver still loses.
Can the driver’s insurance company try to blame me as the parent?
Yes, and they often do. It’s called a Fabre defense, after the Florida Supreme Court case Fabre v. Marin. The driver argues that the parent was negligent in supervising the child. Any percentage of fault a jury assigns to the parent reduces the child’s recovery dollar-for-dollar.
How long do I have to file a claim in Florida?
Two years from the date of the accident. Florida cut the statute of limitations for negligence claims from four years to two in the 2023 tort reform. The clock starts running on the day of the accident.
If your child was injured
If your child was hurt by a driver in Bonita Springs, Estero, Naples, Fort Myers, or anywhere across Lee or Collier County, call Pittman Law Firm at 239-992-8259 or request a free consultation online. There’s no fee unless we recover compensation for your family.
About the Author
David B. Pittman, Esq. is the founder of Pittman Law Firm, P.L., and has practiced personal injury law from the firm’s Windsor Place office on Bonita Beach Road for more than thirty years. Bonita Springs is home (for the firm and personally), and most of the firm’s child-pedestrian and family-injury cases come from this stretch of Lee County, from the corridors off Old 41 and Imperial Parkway through the residential neighborhoods and school zones across Bonita Springs and Estero.
David has held a Florida real estate broker license for twenty-five years, a credential that shapes how the firm reads the property side of premises cases. The firm handles personal injury cases across Lee and Collier Counties, serving Fort Myers, Bonita Springs, Naples, Cape Coral, Estero, and Lehigh Acres, with offices at Windsor Place in Bonita Springs (main) and Fort Myers (satellite). Call 239-992-8259 for a free consultation.
Pittman Law Firm represents clients across Lee and Collier Counties — Bonita Springs, Fort Myers, Naples, Estero, Cape Coral, and Lehigh Acres — with a particular concentration in car accidents, child-pedestrian injuries, and serious-injury claims. Free consultations are available at 239-992-8259.
The information on this page is for general information purposes only. Nothing here should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship with Pittman Law Firm, P.L.