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A child can possibly be blamed when a driver hits them while trick-or-treating, but the law measures a child against a reasonably careful child of the same age, intelligence, knowledge and experience, not against an adult (CACI 402). Pure comparative fault means any share assigned to a child reduces damages but does not bar recovery.
Halloween falls on Saturday, October 31, 2026, and neighborhood streets across California will fill with costumed children after dark. This week, agencies have urged extra care. The California Highway Patrol is reminding drivers to slow down and watch for trick-or-treaters, according to KESQ, which quotes CHP Officer David Torres on staying alert in residential neighborhoods. The San Diego County News Center (October 29) tells drivers to slow down in residential areas and suggests reflective tape or flashlights for costumes. Police in Berkeley (October 29) and Hayward (October 22) issued “Boo-ze and Driving Don’t Mix” notices, funded by a California Office of Traffic Safety grant, urging sober rides and extra caution around trick-or-treaters.
This article is a general explainer. It is not about any particular crash, and it assigns fault to no one. When a child is hurt, parents ask who pays, how much the driver can blame the child, and what to save. If a child died in a crash, see our guide to who can file a wrongful death claim after a child dies. Our pedestrian and micromobility accident page gives the broader picture.
A Driver’s Duty of Care on Residential Streets
Every driver must use ordinary care, and that duty rises when children are likely to be on the road. Vehicle Code section 21950 requires a driver to yield the right-of-way to a pedestrian crossing within any marked crosswalk or within any unmarked crosswalk at an intersection. A driver approaching must use all due care and slow down or take other action as needed to protect the pedestrian.
A crosswalk can exist without paint. Under Vehicle Code section 275, a crosswalk includes the part of a roadway within the extension of the sidewalk lines at an intersection where the streets meet at approximately right angles, unless local authorities have posted a no-crossing sign. Whether a spot qualifies depends on the layout, so photographs matter.
Crossing mid-block is different, but it does not erase the driver’s duty. Vehicle Code section 21954 asks such a pedestrian to yield to vehicles that are an immediate hazard, yet it says the driver must still exercise due care for any pedestrian on the roadway.
How Far Can a Driver Blame the Child?
California follows pure comparative fault. In Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, the California Supreme Court held that a person’s own negligence reduces damages in proportion to fault but does not bar recovery. Insurers may argue that a child ran into the street, and section 21950(b) does tell pedestrians not to suddenly leave a curb into the path of a vehicle that is too close to stop.
The standard for a child is different, though. CACI No. 402, the Judicial Council’s jury instruction, says children are not held to the same standards of behavior as adults. A child must use the care that a reasonably careful child of the same age, intelligence, knowledge and experience would use in the same situation. Its source notes also cite authority that children under five are incapable of contributory negligence as a matter of law. Street layout, lighting and the driver’s speed all feed into that comparison.
When the Driver Was Impaired
Impaired driving is a central theme of this year’s warnings, and the Berkeley and Hayward notices urge a sober ride home. If a driver was impaired, the civil claim still starts with ordinary negligence. An arrest is not a civil finding.
Punitive damages are a separate question. Under Civil Code section 3294, a plaintiff must prove by clear and convincing evidence that the defendant was guilty of oppression, fraud or malice. “Malice” includes despicable conduct carried on with willful and conscious disregard of the rights or safety of others. Impairment can be part of that story on the right facts, but punitive damages are never automatic. Our guide to DUI punitive damages and Braun’s Law goes deeper, and our post on a crosswalk crash involving a suspected drunk driver shows how those claims are analyzed.
Hosts, Bars and the Limits of Alcohol Liability
Families ask whether the party or bar that served the driver can be held responsible. California law is restrictive. Civil Code section 1714(c) generally provides that a social host who furnishes alcoholic beverages cannot be held legally accountable for injury to a third person resulting from the consumption of those beverages, because the consumption, not the serving, is treated as the proximate cause. Business and Professions Code section 25602(b) similarly protects those who furnish alcohol to an obviously intoxicated person from civil liability for injuries caused by that person’s intoxication.
There are exceptions tied to underage drinking. Under section 1714(d), a claim is not barred against a parent, guardian or other adult who knowingly furnishes alcohol at his or her residence to a person the adult knows or should know is under 21, and the person harmed by that underage drinker may bring the claim. Business and Professions Code section 25602.1 allows a claim against a licensed seller, and anyone else who sells alcohol, that sells, furnishes or gives it to an obviously intoxicated minor when that is the proximate cause of the injury.
When the Driver Is Uninsured or Flees: UM, UIM and Med-Pay
If the driver has no insurance, too little insurance or drives away, the family’s own policy may help. Uninsured motorist (UM) and underinsured motorist (UIM) coverage is governed by Insurance Code section 11580.2. Under subdivision (b), an “insured” can include resident relatives “while occupants of a motor vehicle or otherwise,” so a child on foot may qualify. Our UM and UIM claims page explains how these claims work.
For a hit-and-run with an unknown driver, the statute adds conditions. The injury must arise out of physical contact with the insured or a vehicle the insured occupies, the accident must be reported within 24 hours to the proper police agency, and a sworn statement must be filed with the insurer within 30 days. UIM coverage generally applies only after the at-fault driver’s liability limits are exhausted, and subdivision (i) sets its own two-year timing rule.
Medical payments coverage, often called med-pay, is optional and can help with medical bills whatever the fault, up to the policy limit. See our med-pay guide.
Evidence to Save First
- Doorbell and Ring video. Save it now. Some systems overwrite clips, so download the footage and ask neighbors to do the same.
- Witnesses. Write down names and phone numbers of parents and residents who saw the crash.
- Photos of visibility and lighting. Photograph the costume as worn, any reflective tape or lights, nearby streetlights, parked cars, signs and the crossing point. Keep the costume, shoes and bucket.
- The police report. Get the report number and the officer’s name.
- Medical records. Keep bills and discharge papers.
Avoid posting details on social media, and be careful about recorded statements to insurers.
If your child was hurt on an e-bike rather than on foot, see our guide to who pays when a child is hurt on an e-bike and when parents can be held responsible.
Deadlines Parents Should Know
The general injury deadline is two years under Code of Civil Procedure section 335.1. For a child, section 352 says the time during which the person is under the age of majority is not counted against that period, which can extend the child’s own claim. A parent’s separate claims may not get that extra time, so treat two years as the working deadline.
Public entities follow a different rule. If a city, school district or other public entity may share responsibility, for example through a dangerous road condition, section 352 does not apply to claims that require a government claim. Under Government Code section 911.2, a written claim for injury generally must be presented within six months. A late-claim application under section 911.4 must come within a reasonable time not to exceed one year, and section 911.6 addresses minors in some situations, but the details are technical and acceptance is not guaranteed. See our government claims page.
Settling a child’s claim also takes court approval. Under Probate Code section 3500, a parent’s compromise of a minor’s disputed claim is valid only after the superior court approves it on a petition, and the money must be paid or held as the court orders. See the Judicial Council’s rule 7.950 and form MC-350.
A Short Safety Checklist for Parents
- Add reflective tape, glow sticks or flashlights, and choose light colors when you can.
- Make sure costumes fit so children can see and walk safely, and consider face paint instead of masks.
- Walk on sidewalks, cross at corners and look both ways, and avoid crossing between parked cars.
- Keep younger children with a trusted adult, use familiar, well-lit routes and stay off your phone near traffic.
- If you drink, plan a sober ride home with a designated driver, transit or rideshare.
Frequently Asked Questions
Can a child be blamed when a driver hits them while trick-or-treating?
Possibly, but the law measures a child against a reasonably careful child of the same age, intelligence, knowledge and experience, not against an adult (CACI 402). California’s pure comparative fault rule means any share of fault assigned to a child reduces damages but does not bar recovery.
What if the driver who hit my child left the scene?
Your own uninsured motorist coverage may apply. Under Insurance Code section 11580.2, a hit-and-run vehicle with an unknown driver generally qualifies when there was physical contact, the crash was reported to police within 24 hours, and a sworn statement went to the insurer within 30 days. Check your policy quickly.
Can I sue the host of a party where the driver was drinking?
Usually not. Civil Code section 1714(c) generally shields social hosts who furnish alcohol, and Business and Professions Code section 25602(b) limits claims against those who serve obviously intoxicated people. The exceptions involve underage drinkers: Civil Code section 1714(d) and Business and Professions Code section 25602.1.
How long do I have to file a claim for an injured child?
The usual injury deadline is two years under Code of Civil Procedure section 335.1, and section 352 can pause that clock while the child is a minor. Claims against a public entity generally need a written claim within six months. Because the rules differ, do not wait.
Does a court have to approve a settlement for my child?
Yes. Under Probate Code section 3500, a parent’s compromise of a minor’s disputed claim is valid only after the superior court approves it on a petition, and the court sets how the money is paid or held for the child.
Does medical payments coverage help if the driver was at fault?
Medical payments coverage, if it is on your policy, is designed to help with medical bills whatever the fault, up to the limit you bought. Check your declarations page and keep every bill.
Talk to us
If your child was hurt, we can explain your options and the deadlines that apply, without pressure. Win Attorneys handles cases statewide across California, and our team speaks Spanish and Vietnamese. Visit us at 17291 Irvine Blvd., Suite 210, Tustin, CA 92780, or call (562) 296-5380.
This article is general information for educational purposes. It is not legal advice and does not create an attorney-client relationship. News details are as reported by the cited sources as of October 30, 2026. No fault is assigned to anyone. Outcomes depend on the facts of each matter.