If a driver hit your child while they were trick-or-treating, the fact that your child stepped into the street usually does not end the case.
That surprises people, because Alabama's fault rule is famously unforgiving. An adult who is even one percent at fault for their own injury normally recovers nothing at all. But that rule does not apply the same way to children. Under what Alabama courts call the rule of sevens, a child under seven is presumed incapable of contributory negligence, and a child between seven and fourteen is presumed incapable unless the other side can prove otherwise.
In other words: the argument the insurance adjuster is most likely to make — your kid darted out, so this is on you — is the argument Alabama law is least willing to accept when the pedestrian is a child.
At BRW Lawyers, we have represented injury victims along the Gulf Coast for more than 25 years. Below is what Alabama law actually says, what the insurer will try, and what to do in the days right after.
Halloween is measurably the most dangerous night of the year to walk
This is not a feeling. Researchers at the University of British Columbia reviewed forty-two years of federal crash records and published the results in JAMA Pediatrics. Comparing Halloween evenings against control evenings one week earlier and one week later, they found the risk of a pedestrian being killed was 43 percent higher on Halloween.
Two details from that study matter for families:
- The risk concentrated between 5 p.m. and 8 p.m. — the trick-or-treating window, when the light is failing and drivers are still commuting.
- The sharpest increase was among children roughly four to eight years old, the exact ages most likely to be out in a costume. The researchers cautioned that the size of that increase is uncertain because the number of deaths involved is small, but the direction of it is not in doubt.
Dark costumes, masks that narrow a child's field of vision, excitement, and crossing mid-block instead of at a corner all stack on top of each other for three hours a year.
Why Alabama's fault rule usually ends injury cases — and why a child's case is different
Alabama is one of a small handful of states that still follows pure contributory negligence. If an injured adult contributed to their own injury at all, even slightly, the claim is barred completely. There is no reduction of damages by percentage the way there is in most states. It is all or nothing, and insurers in Alabama know it. We wrote about how this works in detail in our guide to Alabama's contributory negligence rule.
Children are treated differently, and the framework is old and well-settled:
- Under 7. Alabama follows Jones v. Strickland, 201 Ala. 138, 77 So. 562 (1917), for the rule that a child under seven is presumed incapable of contributory negligence. A six-year-old who runs between two parked cars has not, as a matter of law, done something that defeats their own claim.
- Ages 7 to 14. Under King v. South, 352 So. 2d 1346 (Ala. 1977), a child in this range is presumed incapable of contributory negligence. That presumption can be overcome, but only by showing the particular child had the discretion, intelligence, and sensitivity to danger of a normal fourteen-year-old. That is a real burden, and it falls on the defense.
- Over 14. A teenager is presumed capable of contributory negligence, though evidence about that specific child can still matter.
The practical effect is that the defense of "the child caused this" is available to the driver's insurer only in a narrow band of cases, and almost never when the child is small.
What the insurer will argue instead
When blaming the child is off the table, adjusters shift to the parent. Expect some version of: the child was unsupervised, the costume was dark, they were crossing mid-block.
Be careful here, because this is where good cases get damaged. In Alabama, a parent's own negligence is generally not imputed to the child to defeat the child's claim — the child's claim belongs to the child. But an adjuster asking friendly questions on a recorded line is building a record, and an offhand "I only looked away for a second" is exactly what they are listening for.
The other common move is speed. A driver doing 35 in a 25 on a residential street full of children, three hours into the one evening of the year when everyone knows children are in the road, is a different defendant than one doing 25. Speed is provable from the crash report, scene evidence, and vehicle data — which is why what happens in the first few days matters so much.
What to do in the first 48 hours
- Get the child fully evaluated, even if they got up and walked. Head injuries and internal injuries in children can present late, and a gap between the crash and the first medical record is the first thing an adjuster points at.
- Get the crash report. In Alabama most reports are purchased from ALEA, though some smaller Baldwin County cities post theirs elsewhere. We walk through exactly where to look in our guide to getting your ALEA crash report.
- Photograph the scene at the same hour. Street lighting, sight lines around parked cars, and whether that stretch even has a sidewalk all look completely different at 6:30 p.m. than they do at noon.
- Find the witnesses now. On Halloween a residential street is full of other parents. Those names are gettable the same week and gone a month later. Doorbell and porch cameras on that street are often recording, and most systems overwrite within days.
- Do not give a recorded statement to the other driver's insurer before you have talked to a lawyer.
If a dog bit your trick-or-treater
Dogs that are fine all year can be overwhelmed by a doorbell ringing forty times and strangers in masks.
Alabama has a dog bite statute, Ala. Code § 3-6-1, that imposes liability on an owner when a dog bites or injures someone who is lawfully on the owner's property without provoking the animal — and unlike the common-law "one bite" rule, the owner does not have to have known the dog was dangerous. A child who walks up a front path to a porch with the lights on is, in the ordinary case, there by the homeowner's implied invitation.
There is a limit worth knowing: where the owner can show they had no prior knowledge the dog was dangerous, Alabama caps recovery at the victim's actual expenses. A bite off the property, on a sidewalk or in the street, falls under different rules and generally requires showing the owner knew or should have known.
If you are the homeowner
Handing out candy means inviting the public onto your property in the dark. A few minutes of work removes most of the risk: light the path and the steps, clear the cords running to the inflatable, keep open flames off the walkway and out of jack-o'-lanterns at ground level, and put the dog in a back room rather than behind a door that keeps opening.
If someone is hurt at your house anyway, report it to your homeowner's insurer promptly. That is what the liability coverage on the policy is for, and delayed notice is one of the few things that can genuinely jeopardize it.
How long you have to act
For most Alabama injury claims the deadline is two years from the date of injury, under Ala. Code § 6-2-38(l). We break down the deadlines that catch people out — including the much shorter ones for offshore and on-the-job injuries — in our guide to Alabama's statutes of limitations.
Deadlines for an injured child's claim can run differently than an adult's. That is a question worth asking a lawyer rather than guessing at, because getting it wrong ends the case regardless of how strong it was.
Frequently asked questions
My child ran into the street. Do we still have a case?
Probably yes. Alabama presumes a child under seven is incapable of contributory negligence, and presumes the same for a child between seven and fourteen unless the defense proves that particular child had the judgment of a normal fourteen-year-old.
Does it matter that my child was wearing a dark costume?
It is an argument the insurer will make, but it does not automatically defeat the claim. A driver still has a duty to keep a proper lookout, and that duty is heightened on a residential street on an evening when children are known to be out.
What if the driver says they never saw my child?
Not seeing a pedestrian is not a defense in itself. The question is whether a reasonably careful driver, at a reasonable speed, in those conditions, should have seen them.
Can I be blamed for letting my child trick-or-treat?
A parent's conduct is generally not used to defeat the child's own claim in Alabama. Adjusters still ask questions aimed at building that narrative, which is a good reason not to give a recorded statement early.
Talk to us before you talk to the adjuster
If your child was hurt while trick-or-treating anywhere in Mobile or Baldwin County, we will tell you plainly whether you have a case. There is no fee unless we recover for you.
BRW Lawyers — Boteler Richardson Wolfe, P.C. Call us, or send us the details and we will call you back.