I. Introduction
Joseph is a sophomore at his local university, proudly representing the most popular fraternity in school. This year’s “Rush Week” was successful and even more pledges want to join the fraternity than last year. However, in the spirit of tradition, the new pledges must endure a secret ritual known as “Hell Night” to formally become members of the fraternity. Hell Night is finally here: Joseph’s assignment involves pouring kitchen items on the pledges while the pledges walk blindfolded through the house. After rounds of pancake batter, flour, and ketchup, the other fraternity brothers encourage Joseph to scour the pantry for more kitchen items. In the heat of the moment, Joseph grabs the lye-based liquid oven cleaner and pours it on one of the pledges. The gravity of the situation becomes apparent within minutes. The pledge suffers an adverse reaction to the oven cleaner, which leads to first-degree burns. Consequently, the pledge sues Joseph, the University, and the fraternity for negligence. The jury found that Joseph’s conduct was below the standard required of a “reasonable adult” and held him liable for negligence. Ultimately, the University and the fraternity escaped liability through jurisdictional and post-trial rulings, leaving Joseph liable for the entire judgment.
This anecdote is not fictitious: it is actually the story of Joseph Donchez, who was an upperclassman at the University of Delaware when these incidents occurred. The facts of this case illustrate a fundamental problem with negligence law’s approach to the liability of young adults. Because Donchez was over eighteen years old, the jury judged Donchez under the standard of a reasonable adult, rather than the more relaxed standard of care required of minors. This approach remains the norm in courts across the country. However, modern advances in neuroscience and psychology indicate that adolescent cognitive development continues well into adulthood. While it is too late for Donchez, these scientific insights could expand current negligence standards and bring greater fairness to similarly situated young adults in the future.
The traditional premise for liability in negligence law is fault. Courts find legal fault when an actor’s conduct is unreasonable in light of the risks they perceived—or should have perceived—from their actions. Thus, negligence law generally expects all actors to exercise reasonable care and courts rely on the reasonable person standard to judge whether their conduct was negligent. However, when the actor is a minor, the law allows consideration of the minor’s age, intelligence, and experience when determining negligence liability. One exception to this rule applies when the minor engages in an adult or inherently dangerous activity; in those cases, courts uniformly apply the reasonable adult standard. Overall, negligence law’s approach to the liability of minors has remained consistent for well over a century.
Recent developments in psychology and neuroscience have expanded the understanding of adolescent cognitive development and their trajectory to becoming fully mature adults. Such insights, in turn, hold the promise of future growth in how the law treats adolescents. Notably, the scientific literature shows protracted maturation of key brain regions, including the prefrontal cortex, the amygdala, and grey and white matter. These structures are responsible for many of the brain’s higher functions, and they play an important role in adolescent risk- taking behavior and susceptibility to peer pressure. While the influence of neuroscientific advances already started trickling into criminal law, applications in the civil context remain sparse. However, since negligence liability hinges on human behavior, negligence law represents another legal system ripe for neuroscience-based reform.
Modern neuroscience and psychology insights into brain development support expanding the current negligence standard of care for minors. This requirement is consistent with core negligence principles of fault, risk assessment, justice, and flexibility. Notably, the prevailing standard of care for minors provides a workable framework for analyzing the conduct of young adults in negligence cases. This Comment proposes courts should extend application of the relaxed standard of care for minors through age twenty-five while maintaining the adult activities doctrine as a critical safety net for negligence victims. Part II provides the basic framework and principles governing negligence liability. Part III considers the standard of care required of minors and the adult activities exception. Part IV explores the issues with negligence law’s current approach to minors and rationales for expanding the standard of care required of minors. Part V considers the adult activities doctrine in light of the scientific literature. Part VI discusses the role contributory negligence plays in cases applying the relaxed standard of care. Part VII articulates the scientific, legal, and cultural challenges associated with expanding the negligence standard of care for minors to age twenty-five.
II. Origins And Evolution Of The Negligence Standard Of Care
The Second Restatement of Torts defines negligence as “conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm.” This standard is objective rather than subjective, which means courts scrutinize negligent conduct based on external behavior rather than the individual’s internal state of mind. Thus, an actor is negligent when their conduct does not comport with what a reasonable person would do under similar circumstances. Section A discusses the foundational principles of negligence liability originating from the common law. Section B describes the evolution of the reasonable person standard and introduces exceptions to the general standard.
A. Foundational Principles of Negligence Liability
At the core of negligence liability is the concept of fault: an actor’s conduct must be negligent to deserve legal condemnation. However, legal fault in negligence actions does not faithfully correspond with moral fault. Instead, courts developed a standard that inquires whether an actor’s conduct comports with societal standards of reasonable conduct. This societal standard is objective; thus, negligence suits require measuring an individual’s conduct against that of a reasonable person under similar circumstances. Because the reasonable person is an abstract ideal, courts generally do not consider an individual’s shortcomings— such as poor judgment or clumsiness—when assessing fault. For example, an absentminded law student who accidentally drops heavy books on the librarian is negligent if a reasonable, attentive student would not have dropped the books. Accordingly, some individuals suffer the legal consequences of negligence liability for failing to comply with a standard they cannot meet.
The fault principle relies on whether an individual perceived, or should have reasonably perceived, the risks of their actions. The next step requires determining whether the individual, despite those risks, acted unreasonably. Within this context, risk assessment is fundamental to negligence liability. For example, a railroad company is negligent for not providing security at the premises of a train station with a history of robbery and assault. A grocer who neither knew or should have known of a rattlesnake on market premises, however, is not liable for a customer’s rattlesnake bite injury. Thus, risk assessment is a matter of probability rather than possibility: it requires individuals to analyze the probable risks of their conduct considering the knowledge available to them.
Just like the negligence fault principle relies on societal standards, negligence principles of justice and fairness also depend on public perception. The law presumes individuals have freedom of choice: an ability to reason and make autonomous behavioral decisions. While an actor can freely expose themselves to risk in pursuit of a goal, justice and fairness dictate that the actor cannot expose oblivious third-parties to involuntary risk. Further, fairness and justice require accountability for injuries and risks an actor should or could have prevented. These overarching principles ensure negligence law comports with community expectations.
Negligence law did not enter American jurisprudence fully developed. Instead, the law evolved over time in a piecemeal approach through a triangular interaction between law professors, judges, and legal practitioners. As society changed, so did negligence jurisprudence. This evolution continues today with the advent of America’s technological advances. However, negligence law has been particularly slow to embrace recent developments in neuroscience. For example, negligence law makes special accommodations for physical infirmities but not for mental illnesses, despite neuroscience showing how physical processes form the basis of mental disability. While inherent within negligence law is the flexibility to adapt to changing conditions, courts will dictate whether current paradigms will evolve in response to neuroscientific advances.
B. The Evolution of the Reasonable Person Standard
Renowned legal scholar and Supreme Court Justice Oliver Holmes described the standard for negligence liability as the reasonable “man of ordinary intelligence and prudence.” Rationales for the universality of the objective standard in negligence courts include practicality, justice, and the protection of injured victims’ interests. Notwithstanding the prevalence of the reasonable person standard, scholars have advocated for a refined standard as new advances in science emerge. Further, several exceptions to the rule have evolved over time. For example, courts hold physically disabled persons to the standard of a reasonable person with a like disability. Certain states employ the negligence per se doctrine, where regulatory schemes concerning public safety often substitute the reasonable person standard. Courts hold professionals, such as doctors and lawyers, to the standard of care established by the custom of their profession. Lastly, courts apply a modified standard of care for minors: comparing a minor’s conduct to that of other reasonable children with like age, intelligence, experience, and maturity.
III. The Standard Of Care For Minors In Negligence
The standard of care for minors developed early in negligence jurisprudence to recognize the capacity limitations of child defendants. Minors are immature, meaning they are incapable of exercising caution for their own safety and their actions are often impulsive. Typically, courts hold minors to the standard of care for ordinary minors of like age, intelligence, and experience under similar circumstances. While no consensus exists between jurisdictions for an age cut- off to the reasonable person standard, the general threshold is the age of majority: eighteen in most states. The literature provides several rationales for the relaxed standard of care for minors. From a public policy perspective, it would be unfair for courts to hold minors liable based on the reasonable person standard when most minors cannot meet this standard. From a welfare perspective, society wants to encourage minors to develop normally through childhood activities without the risk of adult burdens. Lastly, from a developmental perspective, minors lack the capacity to appropriately appreciate the risks of their actions because their brains are still maturing.
While most jurisdictions adopted some variation of the relaxed standard for minors, a few states developed supplementary doctrines in furtherance of judicial expediency and efficiency. For example, the Tender Years Doctrine posits that children under a certain age—which varies by jurisdiction—are legally incapable of negligence. Several jurisdictions also adopted the Illinois Rule, which proposes fixed, age-based presumptions. Under the Illinois Rule, children under the age of seven are incapable of negligence as a matter of law. Notwithstanding these minority age-based doctrines, the modern trend inquires whether the minor acted negligently based on case-specific facts rather than age-based presumptions.
The Adult Activities Doctrine—an important caveat in the standard of care for minors—holds minors to the reasonable person standard when they engage in adult activities. The leading case is Dellwo v. Pearson, where the court determined that operation of a motorboat was an adult activity. Courts justify the doctrine under the premise that adult activities are inherently dangerous and generally insured; thus, society expects minors to exercise due care when engaging in these activities. Examples of adult activities include operating a snowmobile, playing golf, and driving a farm tractor. Notably, courts apply different standards for determining whether an activity is an adult activity. Although the doctrine became entrenched in negligence law over time, scholars have criticized the approach as ambiguous and arbitrary.
IV. Neuroscience And Psychology Insights On Brain Development Through Young Adulthood
American society is experiencing a cultural shift marked by a delay in adolescents’ developmental trajectory to adulthood. Today’s adolescents and young adults are less likely to obtain driver’s licenses compared to their counterparts fifty years ago. Similarly, teenagers today are less likely to engage in traditional adult activities, such as drinking alcohol, having sex, or working for pay, than their 1970s counterparts. These trends indicate that modern society perceives adolescents and young adults as cognitively immature, not fully-fledged adults. Concurrently, recent insights in psychology and neuroscience show adolescents continue their cognitive development beyond their teenage years. Scientific research substantiates what society is beginning to recognize: adolescents do not reach full cognitive maturity until their mid-twenties.
In the field of cognitive psychology, adolescence is a developmental period extending into the early twenties; this period is also known as young adulthood. Several themes emerge as adolescents gradually reach full cognitive maturity. Compared to fully mature adults, developing adolescents are more likely to engage in risky behaviors and “less likely to anticipate the consequences of their actions.” Adolescents also display developmental immaturity on measures of temperance, defined as “the ability to evaluate a situation before acting.” With respect to peer pressure, adolescents are more vulnerable to coercion from their peers than older adults. While individuals vary, these tendencies are characteristic of adolescent behavior and development.
Neuroscience research provides an anatomical and physiological basis for the behavioral trends observed in adolescents as they develop into fully mature adults. Recent advances in neuroimaging technology led to the discovery that children’s brains do not fully mature, on average, until age twenty-five. Particularly, the prefrontal cortex—the area of the brain that coordinates executive functioning—is among the last to mature. Studies using magnetic resonance imaging (MRI) techniques show that adolescent cognitive immaturity is a result of an underdeveloped prefrontal cortex. The prefrontal cortex is essential for controlling voluntary behavior, assessing risk, controlling impulses, and evaluating rewards and punishments. In addition to the prefrontal cortex, the brain region associated with emotional control and stress management, the amygdala, also plays an important developmental role. Together, the prefrontal cortex and the amygdala are responsible for an adolescent’s maturity of judgment.
Neuroimaging studies also reveal brain connectivity plays an important role in brain maturation. The neural processing and communication engines of the brain—gray matter and white matter—do not fully mature until the mid- twenties. Gray and white matter are composed of brain cells that allow the brain to process information more quickly and efficiently. While the volume of gray matter peaks early in adolescence, a process known as “pruning” selectively removes superfluous neural connections in response to environmental demands through adulthood. Connection “pruning,” as opposed to gray matter, is important in determining brain maturation because it represents a person’s ability to learn and adapt. On the other hand, white matter continues to increase from childhood to adulthood. These dual neural systems work in tandem to facilitate the integration of brain activity and ensure efficient brain functioning. Ultimately, scientific research illuminates the neural mechanisms responsible for brain maturation and reflects the transitory, yet fundamental, transition of adolescents into adulthood. Given the mounting evidence showing adolescents continue cognitive development until age twenty-five, it is time for courts to rethink the negligence standard of care for minors.
V. Expanding The Negligence Standard Of Care For Minors
Pioneering American psychologist G. Stanley Hall introduced American society to the concept of “adolescence” in 1904. Hall described adolescence as a distinct developmental period between childhood and adulthood, characterized by cognitive and emotional maturation. This notion was revolutionary at the time and quickly became ingrained in popular culture and scientific discourse. In response to this scientific and cultural development, courts and legislatures began treating adolescents differently than fully mature adults. Recent neuroscience insights into brain maturation signal a new shift in how society and science view adolescents. Negligence law should follow suit. Section A describes the problems with the current standard of care for minors’ liability in negligence law. Section B explains how contemporary neuroscience advances support extending the negligence standard of care for minors to age twenty-five. Section C discusses how expanding the standard of care for minors comports with fundamental negligence principles. Section D evaluates whether expanding the minor standard of care will frustrate negligence law’s aim to compensate victims.
A. Problems with the Current Negligence Standard of Care for Minors
The prevailing standard for determining whether a minor is negligent requires judging the minor’s ability to perceive risk according to their own experience, intelligence, and capacity. This standard is both subjective and objective, which means courts can consider the minor’s individual shortcomings in making this determination. In application, courts generally stop applying the minor standard at the age of majority; beyond this age, courts judge individuals based on the objective reasonable person standard. This approach ignores recent scientific advances regarding adolescent development, unfairly imposes liability on adolescents that cannot meet the adult standard, and is a stark contrast to earlier, more flexible iterations.
Broad generalizations and archaic assumptions about child development form the current age-based negligence standards. However, negligence law must evolve as the scientific community broadens its understanding of the adolescent brain. Adolescent maturation into adulthood does not occur at the moment of turning age eighteen, but is rather a slow neurological process peaking when an adolescent reaches twenty-five years of age. Indeed, Congress already recognizes eighteen-year-olds are not fully mature adults. Most recently, Congress enacted the Foster Care Act of 2008, providing states financial incentives to extend foster care services to individuals between the ages of eighteen and twenty-one. Because judicial decisions create most negligence law, courts must develop new negligence standards in response to changes in science and society.
In terms of fault, applying the adult standard of care to adolescents over eighteen in negligence actions imposes liability when there is no culpability. Because the prefrontal cortex of adolescents does not fully develop until age twenty-five, this population is more prone to risky behavior and peer pressure. For example, courts should apply the relaxed standard of care when a student under twenty-five pours various kitchen items on another, as a form of hazing, and an adverse reaction occurs. Courts should also apply the relaxed standard of care when a young adult attempts a risky TikTok challenge or prank resulting in injuries to unsuspecting victims. Whether the individual was unable to assess the risk of their actions due to their developmental immaturity is a matter better suited for jury evaluation. Instead, courts invariably analyze these cases under the reasonable adult standard, even if the young adult cannot meet this standard. Morality has historically played a prominent part in shaping public policy and legal doctrine. Thus, from a public policy perspective, courts should not apply the reasonable person standard to adolescents who lack the capacity to assess risks as fully mature adults.
Perhaps the most critical issue with the current application of the standard of care for minors is its inflexibility. Today, the application of the relaxed standard for minors ends with the age of majority. However, early twentieth century courts first developing the relaxed standard for minors recognized the age of majority was not dispositive in determining its application. For example, in 1906, the California Supreme Court applied the relaxed standard of care to a nineteen-year-old girl who sustained injuries operating a fabric machine. The court acknowledged that while the age of majority signals physical maturity, adolescents do not possess the cognitive prowess of fully mature adults. Similarly, in 1873, the Michigan Supreme Court applied the relaxed standard of care to a twenty-year-old girl that collided with a carriage while horse-riding. The Missouri Supreme Court also applied the relaxed standard to an eighteen-year- old boy operating a shoe factory machine in a 1915 case. In its holding, the court noted that “boy[s] 18 or 19 years of age . . . should [not] be held to the full accountability of adult[s].” These cases display how the standard of care for minors developed as a flexible framework, not bound by the constraints of the age of majority. It is possible that, over time, courts perceived a risk of inconsistency in applying the standard of care for minors to individuals over eighteen, justifying a departure from this early flexible framework. Notwithstanding, recent scientific insights on adolescent development justify the adoption of a flexible and adaptable standard of care for minors.
B. Science Supports Extending the Negligence Standard of Care for Minors to Age Twenty-Five
Negligence law already recognizes that courts should not hold children to exercise the same degree of care as fully mature adults. Modern courts rely on the age of majority when determining whether to apply the relaxed standard of care. However, a burgeoning body of scientific literature supports the notion that children’s cognitive development continues through the mid-twenties. These scientific insights have already influenced criminal law jurisprudence, with the U.S. Supreme Court relying on scientific evidence to recognize the diminished culpability of juvenile offenders. The latest of these Supreme Court cases is Miller v. Alabama, where the Court noted juveniles “lack maturity” and “are more vulnerable. . . to peer pressure.” The Court further stated, “developments in psychology and brain science continue to show fundamental differences between juvenile and adult minds.” Negligence jurisprudence should follow in criminal law’s steps and adopt the Supreme Court’s view of juvenile offenders in light of scientific advances. If implemented, negligence courts would judge the behavior of adolescents in the early twenties against their peers of like age, intelligence, and experience.
Neuroscience research provides a quantitative measure to trends observed in psychology: until age twenty-five, adolescents cannot appropriately assess risk because key brains areas are still developing. An underdeveloped prefrontal cortex links to adolescent propensity for engaging in risky behavior. Put simply, adolescents are not fully mature in their ability to differentiate between positive and negative rewards until age twenty-five—an ability often called “good judgment.” Because developing adolescents cannot perceive risk like fully mature adults, courts should not hold them to the same standard of care. Given that risk appreciation is essential for determining negligence liability, these insights on prefrontal cortex development provide a basis for expanding the current standard of care for minors.
Another key brain region linked to adolescent brain development is the amygdala: a structure responsible for emotional regulation. While the amygdala is well developed at birth, structural and functional changes continue through adulthood. Most strikingly, the neural connections between the amygdala and the prefrontal cortex become denser in late adolescence. This discovery suggests adolescents do not have the ability to properly integrate their emotional and cognitive processes until their mid-twenties. Further, because the amygdala plays an important role in how peer influences impact decision-making, these underdeveloped connections prevent adolescents from properly assessing risk in social settings. Accordingly, the amygdala’s salient role in risk-taking and peer influence, which develops through early adulthood, provides another basis for expanding the current standard of care for minors.
The maturation of the neural connections between the prefrontal cortex and the amygdala is a small part of a much wider process occurring throughout the brain. During adolescence, the development of gray and white matter helps explain why adolescents tend to engage in riskier behavior than adults. Recent scientific studies also indicate incomplete white matter myelination makes adolescents more vulnerable to peer pressure, and thus more likely to engage in dangerous behavior. These findings corroborate and strengthen previous evidence demonstrating an underdeveloped prefrontal cortex and amygdala hinder risk perception in the adolescent population.
One of the most significant conclusions from the scientific literature is that adolescent risk-taking behavior and susceptibility to peer pressure is the norm across the population—not an anomaly. Until age twenty-five, adolescents are categorically worse at weighing the risks and likely consequences of their actions than fully mature adults. This universality gives credence to extending application of the relaxed standard of care for minors through age twenty-five.
C. Expanding the Negligence Standard of Care for Minors Comports with Fundamental Principles of Negligence
Negligence law developed from fundamental concepts of societal fault, risk assessment, flexibility, and fairness. Any adjustments to existing negligence standards, then, should comport with these core principles. Because courts already make special allowances for minors due to their immaturity, extending the standard of care to age twenty-five falls within the concept of societal fault. As evidenced by their propensity for risky behavior and susceptibility to peer pressure, adolescents are unable to properly assess the risks of their actions like fully mature adults. Thus, it is unfair to hold adolescents under twenty-five to the same standard of care as fully mature adults. Finally, negligence law’s intrinsic ability to change in response to scientific and cultural progress provides another basis for extending the current standard of care for minors. While negligence law has been slow to respond to recent neuroscientific advances, it can easily adapt the frameworks developed from Supreme Court decisions on juvenile criminal justice. As the scientific community’s understanding of adolescent development continues to evolve, so should negligence law.
D. Expanding the Negligence Standard of Care for Minors Does Not Significantly Frustrate Negligence Law’s Goals of Victim Compensation and Deterrence
The primary aims of negligence law are to compensate victims and deter individuals from engaging in unsafe conduct. It is within these goals that negligence liability principles of fault, risk assessment, flexibility, and fairness intersect. However, there is a natural tension between negligence law’s core principles and goals. Expanding the relaxed standard of care for minors to age twenty-five illustrates this tension. On the one hand, expanding the standard of care for minors will more closely equate culpability to negligence liability. Courts will judge the conduct of young adults based on other young adults of like age, intelligence, and experience while accounting for fault, risk perception, and fairness. Conversely, expanding the standard of care for minors could theoretically impose a higher financial burden on victims and promote unsafe conduct. While these concerns are valid, they are readily addressed by current safeguards in negligence law.
Courts expect increased maturity from minors as they age; in most cases involving young adults, applying the relaxed standard will likely not yield a different result. Notably, expanding the relaxed standard of care to age twenty- five will make a legal difference exactly where it should—cases involving risk perception and peer pressure. The adult activities doctrine provides another safeguard for protecting victims’ financial interests and deterring unsafe conduct. Given the large umbrella of conduct covered under the adult activities doctrine, the reasonable adult standard will continue to feature prominently in negligence cases involving young adults.
VI. The Adult Activities Doctrine
Courts have identified two main policy rationales for implementing the adult activities exception to the minor standard of care: insurance and victims’ reasonable expectations. The insurance rationale posits that because adult activities normally require insurance, children engaging in these activities do not need protection from liability. But not all adult activities require insurance; thus, the reasonable expectations rationale fills the gaps. The reasonable expectations rationale proposes that victims expect individuals engaging in adult activities, regardless of age, to exercise the care of a reasonable adult. Together, the insurance and reasonable expectations rationales justify imposing an adult standard on children for injuries resulting from adult activities.
While these rationales are not immune from criticism, their widespread acceptance cements the adult activities doctrine’s place in negligence law. Further, these rationales would continue applying with equal force should courts expand the relaxed standard of care to age twenty-five. Due to young adults’ proximity to full cognitive maturity, the apparent injustice of imposing an adult standard on young adults for adult activities becomes less concerning. With respect to insurance, “all states have financial responsibility laws” for motor vehicle drivers, usually requiring drivers to obtain auto insurance. In the future, states may also begin requiring firearm liability insurance. Young adults engaging in these adult activities would not need protection from liability. Finally, society reasonably expects young adults, compared to their younger counterparts, to exercise greater care when engaging in adult activities. Given these considerations, expanding the negligence standard of care would smoothly integrate the adult activities doctrine.
VII. Dual Standard: The Standard Of Care For Minors And Contributory Negligence
Before the advent of comparative negligence, traditional negligence doctrine established contributory negligence as a complete bar to recovery. Thus, a dual standard arose early in negligence jurisprudence: minor plaintiffs would receive the benefit of the relaxed standard of care while courts would judge minor defendants under the reasonable adult standard. While the doctrine of comparative negligence weakened the dual standard regime, the adult activities doctrine remains a driving force for applying the adult standard to minor defendants. Notwithstanding, the literature shows most negligence cases involving minors deal with contributory negligence. Extending the relaxed standard of care to age twenty-five could justify a resurgence of the dual standard in contributory negligence cases. At a minimum, negligence plaintiffs under twenty-five should receive the benefits of the relaxed standard. This dichotomy will have the most impact in states where contributory negligence is still a complete bar to recovery for plaintiffs: Alabama, Maryland, North Carolina, Virginia, and Washington, D.C.
VIII. Challenges Of Extending The Negligence Standard Of Care For Minors To Age Twenty-Five
While neuroscience advances could lead to more refined negligence standards, it is critical to recognize important caveats of expanding the current standard of care for minors. Section A explores societal expectations of young adults through a public policy lens. Section B discusses the limitations of using neuroscience data in the courtroom, including evidentiary and pragmatic concerns. Section C describes why, despite these limitations, neuroscience should lead to reform negligence doctrine by expanding the standard of care for minors.
A. Society Largely Expects Adolescents Over Eighteen to Behave Like Fully Mature Adults
While society is beginning to recognize that adolescents do not have the cognitive prowess of fully mature adults, public policy still largely dictates societal expectations. America’s enshrinement of age eighteen as a signal of adulthood permeates many areas of law. Negligence doctrine is no exception. Expanding the negligence standard of care for minors to age twenty-five will challenge this status quo. However, it would not be the first time public policy recognized young adults lack cognitive maturity. Car rental companies historically did not rent cars to drivers under twenty-five years of age; today, most charge high daily underage fees for these services. Similarly, the Constitution contains several age of candidacy requirements. One notable example is candidacy for the House of Representatives, which holds a minimum age requirement of twenty-five years. Once ahead of their time, these policies now match neuroscience research on adolescent development. Conversely, laws codifying age eighteen as a manifestation of cognitive maturity represent a systemwide failure to account for recent neuroscience advances. It is time for a comprehensive overhaul of age- based presumptions within the legal system.
B. Evidentiary and Pragmatic Concerns of Using Neuroscience Data in the Courtroom
The primary evidentiary concern of implementing neuroscience data in negligence cases is reliability. Particularly, extrapolating the knowledge derived from generalized studies to specific cases will call into question the accuracy of neuroscience technology. Because the bounds of normal development vary from person to person, relying on neuroscience data may result in false positives or false negatives. A court evaluating negligence may erroneously attribute peer- pressure-susceptibility to an adolescent’s conduct when, in fact, this trait did not dictate their actions. However, the trier-of-fact bears the burden of assessing all the relevant evidence to determine whether an individual breached their standard of care.
While fact finders play a vital role in determining negligence liability, their role is vulnerable to pollution from neuroscience data’s purported objectivity. Put simply, fact-finders are more likely to find neuroscience data credible because they believe neuroscience is objective. Because neuroscience also involves elements of subjectivity, courts may be reluctant to introduce neuroscience evidence in the courtroom. Federal Rule of Evidence allows courts to “exclude relevant evidence if its probative value is substantially outweighed” by dangers of unfair prejudice or misleading the jury. If history is any indication, neuroscience data on adolescent development will likely overcome this hurdle. From a pragmatic standpoint, expanding the relaxed standard of care for minors to age twenty-five faces two major hurdles: expert testimony use and administrative burdens. While federal courts exclusively rely on the comprehensive Dauber test to determine the admissibility of expert evidence, state courts are split between Dauber and the lenient Frye test. This dichotomy will result in forum shopping and inequitable results in negligence cases involving young adults. Additionally, increased reliance on neuroscience expert testimony in the courtroom will disadvantage litigants who cannot afford to produce this evidence. Because scientific expert testimony will become commonplace in negligence cases involving young adults, there may be a higher administrative burden on the courts. However, as more neuroscience evidence floods the courtrooms, courts will become more experienced in tackling this domain.
C. Despite These Limitations, Neuroscience Should Reform Negligence Doctrine
Expanding the negligence standard of care for minors to age twenty-five will require overcoming evidentiary and pragmatic hurdles, as well as societal expectations of adolescent behavior. However, these limitations do not justify completely barring neuroscience evidence in negligence cases involving young adults. As neuroscience continues to evolve, so will its legal value. In the courtroom, neuroscience evidence on adolescent development should be one of many factors courts will consider to determine negligence liability. Further, adopting robust jury instructions will alleviate the prejudicial concerns of using complex neuroscience data. Although neuroscience evidence on its own will not define negligence liability, it will provide adolescents greater access to justice in cases hinging on risk perception and peer pressure.
IX. Conclusion
Recent neuroscience advances show that adolescents under twenty-five years old are cognitively different than fully mature adults; a difference carrying legal significance. Adolescent faulty risk-perception and susceptibility to peer pressure are necessary components of their development to adulthood. Now that neuroscience has established the baseline knowledge to develop a new framework, negligence law should follow suit. Accordingly, courts should extend application of the negligence standard of care for minors to age twenty-five. While there are limitations to this proposal, neuroscience will only become more sophisticated and more prevalent with time. As neuroscience begins to infiltrate negligence doctrine, courts will need to balance the scientific literature with the social, administrative, and ethical goals of negligence law.