Florida law has determined that children under the age of six are presumed to be incapable of comparative negligence. This concept that was developed under Florida case and it makes complete sense. Florida is a comparative negligence state. In other words, a jury may apportion fault between different parties and even non parties at trial. As such, a jury could split the liability and damages between different persons and entities. There is one exception to this general rule in Florida. Pursuant to Swindell v. Hellkamp, 242 So.2d 708 (Fla. 1970) and related case law, a child under the age of six years old is conclusively presumed to be incapable of committing such negligence. As such, the actions or inactions of a five year old cannot as a matter of law be considered to be negligence for purposes of liability. However, if a child is six or older, a jury can consider the actions or inactions of the six year old in determining liability for injuries to the child. Whether your child is under or over six years old, businesses, drivers, and others have a duty to act reasonably when children are present.