2020 Georgia Code
Title 51 - Torts
Chapter 11 - Defenses to Tort Actions
Article 1 - General Provisions
§ 51-11-6. Infancy

Infancy is no defense to a tort action so long as the defendant has reached the age of discretion and accountability prescribed by Code Section 16-3-1 for criminal offenses.

(Orig. Code 1863, § 2996; Code 1868, § 3009; Code 1873, § 3064; Code 1882, § 3064; Civil Code 1895, § 3904; Civil Code 1910, § 4501; Code 1933, § 105-1806.)

- For article surveying torts law, see 34 Mercer L. Rev. 271 (1982). For article, "Defending the Lawsuit: A First-Round Checklist," see 22 Ga. St. B. J. 24 (1985). For comment criticizing Hatch v. O'Neill, 231 Ga. 446, 202 S.E.2d 44 (1973), holding individual under age of criminal responsibility not civilly liable for willful torts, see 26 Mercer L. Rev. 367 (1974).

This section refers to liability of infant for the infant's torts, and not to the proper manner of bringing suit against the infant therefor. Maryland Cas. Co. v. Lanham, 124 Ga. 859, 53 S.E. 395 (1906); Miller v. Luckey, 132 Ga. 581, 64 S.E. 658 (1909).

This section determines policy of this state as to torts of minors under age of criminal responsibility, and it is immaterial what the rule is in other jurisdictions, or what the rule was at common law. Hatch v. O'Neill, 231 Ga. 446, 202 S.E.2d 44 (1973).

This section reflects the General Assembly's determination that infants under the age of 13 are not liable in tort for their actions. While the wisdom of this determination may be debatable, it does not violate equal protection. Barrett v. Carter, 248 Ga. 389, 283 S.E.2d 609 (1981); Horton v. Hinely, 261 Ga. 863, 413 S.E.2d 199 (1992).

Question of immunity of infant who is under age of criminal responsibility is reasonable subject for regulation by legislative branch of government, and it is not a denial of due process of law to provide that no cause of action exists for torts committed by infants of such age. Hatch v. O'Neill, 231 Ga. 446, 202 S.E.2d 44 (1973).

This section positively provides that those over age of discretion and accountability for criminal offenses may not use infancy as a defense. However, as to those under such age, the section, by its very nature, just as unequivocally provides that infancy is a defense. Brady v. Lewless, 124 Ga. App. 858, 186 S.E.2d 310 (1971).

Former Code 1933, § 105-1806 (see now O.C.G.A. § 51-11-6) meant that a minor under the age of 13 was immune from suit for tort, and was distinguished from the rule in former Code 1933, § 105-204 (see now O.C.G.A. § 51-1-5) as to the negligence of a child in an action for damages because of injuries to the child. Hatch v. O'Neill, 231 Ga. 446, 202 S.E.2d 44 (1973).

An infant under the age of criminal responsibility is immune from suit for tort. Bartoletti v. Kushner, 140 Ga. App. 468, 231 S.E.2d 358 (1976), cert. dismissed, 238 Ga. 688, 235 S.E.2d 8 (1977).

This section provides immunity from suit for tort to a minor under the age of 13. Barrett v. Carter, 248 Ga. 389, 283 S.E.2d 609 (1981).

Child is responsible for its torts under same rules applicable to commission of crime. Brady v. Lewless, 124 Ga. App. 858, 186 S.E.2d 310 (1971).

If infant chooses to sue, the infant in effect gives up or waives protection and subjects oneself to the rule as laid down in the cases under former Code 1933, § 105-204 (see now O.C.G.A. § 51-1-5). Brady v. Lewless, 124 Ga. App. 858, 186 S.E.2d 310 (1971).

The rule is quite different when the negligence of a child relates to action in which the child is the plaintiff, or in which the child's parents are litigating because of injuries to the minor child. In that situation, most of the cases provide that the child cannot be accounted negligent if the child is six years of age or less; and in one case, Harris v. Combs, 96 Ga. App. 638, 643, 101 S.E.2d 144, (1957), it was held that a child seven years of age was too young to be negligent. But if the action is brought against the child, the child may plead the child's infancy as an absolute defense, provided the child was less than 13 years of age at the time of the alleged tort. Brady v. Lewless, 124 Ga. App. 858, 186 S.E.2d 310 (1971).

While a defendant under 13 is protected by O.C.G.A. § 51-11-7, the plaintiff under 13 is not allowed to ignore the plaintiff's lack of due care and recover damages from a defendant whose negligence is less than that of the plaintiff. Barrett v. Carter, 248 Ga. 389, 283 S.E.2d 609 (1981).

Defendant child being six years of age at time of alleged tort is, as matter of law, not liable therefor even though willful. Scarboro v. Lauk, 133 Ga. App. 359, 210 S.E.2d 848 (1974).

- In a tort action filed by a nine-year-old child's parent, as next friend, the appeals court declined to assume that merely because the child assented to the requests of adults, the child consented to the treatment the adults imposed. Todd v. Byrd, 283 Ga. App. 37, 640 S.E.2d 652 (2006), overruled on other grounds, Ferrell v. Mikula, 295 Ga. App. 326, 672 S.E.2d. 7 (2008).

Cited in Central R.R. v. Brinson, 70 Ga. 207 (1883); Elder v. Woodruff Hdwe. & Mfg. Co., 9 Ga. App. 484, 71 S.E. 806 (1911); Landers v. Medford, 108 Ga. App. 525, 133 S.E.2d 403 (1963); Soles v. Beasley, 234 Ga. 622, 216 S.E.2d 864 (1975); Soles v. Beasley, 137 Ga. App. 280, 223 S.E.2d 477 (1976); Hill v. Morrison, 160 Ga. App. 151, 286 S.E.2d 467 (1981); Townsend v. Moore, 165 Ga. App. 606, 302 S.E.2d 398 (1983); Green v. Gaydon, 174 Ga. App. 796, 331 S.E.2d 106 (1985); Spivey v. Sellers, 185 Ga. App. 241, 363 S.E.2d 856 (1987).

RESEARCH REFERENCES

Am. Jur. 2d.

- 74 Am. Jur. 2d, Torts, § 49 et seq.

- 43 C.J.S., Infants, §§ 220 et seq., 295 et seq.