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Challenges in Conveying the Standard
  • 1 Vaughan v. Menlove--"The Unreasonable Hay Stacker"

    How does the reasonable person standard account for variations in human intelligence?

    Notes: Plaintiff’s property caught on fire due to the spontaneous combustion of hay stacked by the defendant nearby. The facts showed that plaintiff had explicitly warned defendant of the risk of fire; defendant responded by saying that “he would chance it.” Defendant insisted, throughout trial, that his stack did not carry a risk of igniting. However, the potential for hay stacks to spontaneously combust may have been common knowledge at the time.
    1

    132 Eng. Rep. 490

    2
    VAUGHAN
    3
    v.
    4
    MENLOVE.
    5

    Jan. 23, 1837.

    6

    [S. C. 4 Scott, 244; 3 Hodges, 51; 6 L.J. C.P. 92; 1 Jur. 215: at Nisi Prius, 7 Car. & P. 525.]

    7

    An action lies against a party for so negligently constructing a hay-rick on the extremity of his land, that in consequence of its spontaneous ignition, his neighbour's house is burnt down.—And upon pleas of not guilty, and that there was no negligence, held, that it was properly left to the jury to say whether the Defendant had been guilty of gross negligence, viewing his conduct with reference to the caution that a prudent man would have observed.

    8

    The declaration stated, that before and at the time of the grievance and injury, hereinafter mentioned, certain premises, to wit, two cottages with the appurtenances situate in the county of Salop, were respectively in the respective possessions and occupations of certain persons as tenants thereof to the Plaintiff, to wit, one thereof in the possession and occupation of one Thomas Ruscoe as tenant thereof to the Plaintiff, the reversion of and in the same with the appurtenances then belonging to the Plaintiff, and the other thereof in the possession and occupation of one Thomas Bickley as tenant thereof to the Plaintiff, the reversion of and in the same with the appurtenances then belonging to the Plaintiff: that the Defendant was then possessed of a certain close near to the said cottages, and of certain buildings of wood and thatch, [132 Eng. Rep. 491] also near to the said cottages; and that the Defendant was then also possessed of a certain rick or stack of hay before then heaped, stacked, or put together, and then standing, and being in and upon the said close of the Defendant. That on the 1st of August 1835, while the said cottages so were in the occupation of the said tenants, and while the reversion thereof respectively so belonged to the Plaintiff' as aforesaid, the said rick or stack of hay of the Defendant was liable and likely to ignite, take fire, and break out into a flame, and there had appeared, and were just grounds to apprehend and believe that the same would ignite, take fire, and break out into a flame; and by reason of such liability, and of the state and condition of the said rick or stack of hay, the same then was and continued dangerous to the said cottages; of which said several pre [3 Bing (N. C.) 469] mises the Defendant then had notice: yet the Defendant well knowing the premises, but not regarding his duty in that behalf, on, &c., and from thence until and upon a certain day, to wit, on, &c. wrongfully negligently, and improperly, kept and continued the said rick or stack of hay, so likely and liable to ignite and take fire, and in a state and condition dangerous to the said cottages, although he could, and might, and ought to have remove and altered the same, so as to prevent the same from being and continuing so dangerous as aforesaid; and by reason thereof the said cottages for a long time, to wit, during all the time aforesaid, were in great danger of being consumed by fire. That by reason of the premises, and of the carelessness, negligence, and improper conduct of the Defendant, in so keeping and continuing the said rick or stack, in a state or condition so dangerous as aforesaid, and so liable and likely to ignite and take fire and break out into flame, on, &c., and while the said cottages so were occupied as aforesaid, and the reversion thereof respectively so belonged to the Plaintiff; the said rick or stack of hay of the Defendant, standing in the close of the Defendant, and near the said c:ottages, did ignite, take fire, and break out into flame, and by fire and flame thence issuing and arising, the said standing of the Defendant so being of wood and thatch as aforesaid, and so being near to the said rick or stack as aforesaid, were set on fire; and thereby and by reason of the carelessness, negligence, and improper conduct of the Defendant, in so keeping and continuing the said rick or stack in such condition as aforesaid, fire and flame so, occasioned as aforesaid by the igniting and breaking out into flame, of the said rick or stack, was thereupon then communicated unto the said cottages in which the Plaintiff was interested as aforesaid, which were thereby then respectively set on fire, and then, to wit on, &c., by reason of such [3 Bing (N. C.) 470] carelessness, negligence, and improper conduct of the Defendent in so continuing the said rick or stack in such a dangerous condition as aforesaid, in manner aforesaid, were consumed, damaged, and wholly destroyed, the cottages being of great value, to wit, the value of 5001. And by means of the premises, the Plaintiff was greatly and permanently injured in his said reversionary estate and interest of and in each of them; to the Plaintiff's damage of 5001.

    9

    The Defendant pleaded, first, not guilty. Secondly, that the said rick or stack of hay was not likely to ignite, take fire, and break out into flame; nor was the same by reason of such liability, and of the state or condition of the said rick and stack of hay, dangerous to the said cottages; nor had the Defendant notice of the said premises, in manner and form as the Plaintiff had in and by his declaration in that behalf alleged. Thirdly, that the Defendant did not, well knowing the premises in the declaration in that behalf mentioned, wrongfully, negligently, or improperly, keep or continue the said rick or stack of hay, in a state and condition dangerous to the said cottages. Fourthly, that the said rick or stack of hay, did not by reason of the carelessness, negligence and improper conduct of the Defendant in that behalf, ignite, take fire, and break out in flame. And fifthly, that the said cottages were not consumed, damaged, and destroyed by reason of the carelessness, negligence, and improper conduct of the Defendant.

    10

    At the trial it appeared that the rick in question had been made by the Defendant near the boundary of his own premises; that the hay was in such and state when put together, as to give rise to discussions on the probability of fire: that though there were conflicting opinions on the subject, yetduring a period of five weeks, the Defendant was repeatedly warned of his [3 Bing (N. C.) 471]peril; that his stock was insured; and that upon one Occasion, being advised to take the rick down to avoid all danger, he said “he would chance it.” He made an aperture or chimney through the rick; but in spite, or perhaps in consequence of this precaution, the rick at length burst into flames from the spontaneous heating of its materials; the flames communicated to [132 Eng. Rep. 492] the Defendant's barn and stables, and thence to the Plaintiff's cottages, which were entirely destroyed.

    11

    Patteson J. before whom the cause was tried, told the jury that the question for them to consider, was, whether the fire had been occasioned by gross negligence on the part of the Defendant; adding, that he was bound to proceed with such reasonable caution as a prudent man would have exercised under such circumstances.

    12

    A verdict having been found for the Plaintiff, a rule nisi for a new trial was obtained, on the ground that the jury should have been directed to consider, not, whether the Defendant had been guilty of gross negligence with reference to the standard of ordinary prudence, a standard too uncertain to afford any criterion; but whether he had acted bona fide to the best of his judgment; if he had, he ought not to be responsible for the misfortune of not possessing the highest order of intelligence. The action under such circumstances, was of the first impression.

    13

    Talfourd Serjt. and Whately, shewed cause.

    14

    The pleas having expressly raised issues on the negligence of the Defendant, the learned Judge could not do otherwise than leave that question to the jury. The declaration alleges that the Defendant knew of the dangerous state of the rick, and yet negligently and improperly allowed it to stand. The plea of not guilty, therefore, puts in issue the scienter, it being of the sub [Bing (N. C.) 472] stance of the issue; Thomas v. Morgan (2 Cr. M. & U. 496). And the action, though new in specie, is founded on a principle fully established, that a man must so use his own property as not to injure that of others. On the same circuit a defendant was sued a few years ago, for burning weeds so near the extremity of his own land as to set fire to and destroy his neighbors’ wood. The plaintiff recovered damages, and no motion was made to set aside the verdict. Then, there were no means of estimating the defendant's negligence, except by taking as a standard, the conduct of a man of ordinary prudence: that has been the rule always laid clown, and there is no other that would not be open to much greater uncertainties.

    15

    R V. Richards, in support of the rule.

    16

    First, there was no duty imposed on the Defendant, as there is on carriers or other bailees, under an implied contract, to be responsible for the exercise of any given degree of prudence: the Defendant had a right to place his stack as near to the extremity of his own land as he pleased; Wyatt v. Harrison (3 B. & Adol. 871): under that right, and subject to no contract, he can only be called on to act bona fide to the best of his judgment: if he has clone that, it is a contradiction in terms, to inquire whether or not he has been guilty of gross negligence. At all events what would have been gross negligence ought to be estimated by the faculties of the individual, and not by those of other men. The measure of prudence varies so with the varying faculties of men, that it is impossible to say what is gross negligence with reference to the standard of what is called ordinary prudence. In Crook v. Jadis (5 B. & Adol. 910), Patteson J. says, "I never could understand [Bing (N. C.) 473]what is meant by parties taking a bill under circumstances which ought to have excited the suspicion of a prudent man:" and Taunton J., “I cannot estimate the degree of care which a prudent man should take.”

    17

    In Foster v. Pearson too, (1 C. M. & H. 855) it appears that the rule which called on persons taking negotiable instruments to act with the circumspection of a prudent man, has at length been abandoned. There, the judge left it to the jury to say whether the holder of bills took them with due care and caution in the ordinary course of business; and upon a motion to set aside a verdict for the plaintiff, the Court said: “Of the mode in which the question was left, the defendant has certainly no right to complain; but, if the verdict had been in his favour, it would have become necessary to consider whether the learned Judge was correct in adopting the rule first laid down by the Court of Common Pleas, in the case of Snow v. Peacock (3 Bingh. 406), and which was founded upon the dicta, rather than the decision, of the judges of the King's Bench in the case of Gill v. Cubitt (5 D. & R. 324. 3 B. & C. 466); more especially since the opinion of the latter court has been so strongly intimated in the late cases of Crook v. Jadis (3 N. & M. 257) and Backhouse v. Harrison (ibid. 188). The rule of law was long considered as being firmly established, that the holder of bills of exchange indorsed in blank or other negotiable securities transferable by delivery, could give a title which he himself did not possess to a bona fide holder for value; and it may well be questioned whether it has been wisely departed from in the case to which reference has been made, and other subsequent cases in which care and caution in the taker of [132 Eng. Rep. 493] such securities has been treated as essential to the validity of his title, besides, and independently of, honesty of purpose.”

    18
    [Bing (N. C.) 474] TINDAL C.J.
    19

    I agree that this is a case primæ impressionis; but I feel no difficulty in applying to it the principles of law as laid down in other cases of a similar kind. Undoubtedly this is not a case of contract, such as abailment or the like where the bailee is responsible in consequence of the remuneration he is to receive: but there is a rule of law which says you must so enjoy your own property as not to injure that of another; and according to that rule the Defendant is liable for the consequence of his own neglect: and though the Defendant did not himself light the fire, yet mediately, he is as much the cause of it as if he had himself put a candle to the rick ; for it is well known that hay will ferment and take fire if it be not carefully stacked. It has been decided that if an occupier burns weeds so near the boundary of his own land that damage ensues to the property of his neighbour, he is liable to an action for the amount of injury done, unless the accident were occasioned by a sudden blast which he could not forsee: Turbervill v. Stamp (1 Salk. 13). But put the case of a chemist making experiments with ingredients, singly innocent, but when combined, liable to ignite; if he leaves them together, and injury is t hereby occasioned to the property of his neighbour, can anyone doubt that an action on the case would lie?

    20

    It is contended, however, that the learned Judge was wrong in leaving this to the jury as a case of gross negligence, and that the question of negligence was so mixed up with reference to what would be the conduct of a man of ordinary prudence that the jury might have thought the latter the rule by which they were to decide; that such a rule would he too uncertain to act upon; and that the question ought tohave been whether the Defendant had acted honestly and bona fide to the best of his own judgment. That, [Bing (N. C.) 475]however, would leave so vague a line as to afford no rule at all, the degree of judgment belonging to each individual being infinitely various: and though it has been urged that the care which a prudent man would take, is not an intelligible proposition as a rule of law, yet such has always been the rule adopted in cases of bailment, as laid down in Coggs. v. Bernard (2 Ld. Raym. 909). Though in some cases a greater degree of care is exacted than in others, yet in “the second sort of bailment, viz. commodatum or lending gratis, the borrower is bound to the strictest care and diligence to keep the goods so as to restore them hack again to the lender; because the bailee has a benefit by the use of them, so as if the bailee he guilty of the least neglect he will be answerable; as if a man should lend another a horse to go westward, or for a month; if the bailee put this horse in his stable, and he were stolen from thence, the bailee shall not be answerable for him: but if he or his servant leave the house or stable doors open and the thieves take the opportunity of that, and steal the horse, he will be chargeable, because the neglect gave the thieves the occasion to steal the horse.” The care taken by a prudent man has always been the rule laid down; and as to the supposed difficulty of applying it, a jury has always been able to say, whether, taking that rule as their guide, there has been negligence on the occasion in question.

    21

    Instead, therefore, of saying that the liability for negligence should be co-extensive with the judgment of each individual, which would be as variable as the length of the foot of each individual, we ought rather to adhere to the rule which requires in all cases a regard to caution such as a man of ordinary prudence would observe. [Bing (N. C.) 476] That was in substance the criterion presented to the jury in this case, and therefore the present rule must be discharged.

    22
    PARK J.
    23

    I entirely concur in what has fallen from his Lordship. Although the facts in this case are new in specie, they fall within a principle long established, that a man must so use his own property as not to injure that of others. In Tubervill v. Stamp (1 Salk. 13), which was “an action on the case upon the custom of the realm, quare negligenter custodivit ignem suum in clauso suo, ita quod per flammas blade Quer. in quodam clauso ipsius Quer. combusta fuerunt; after verdict pro Quer. it was objected that the custom extended only to fire in his house, or curtilage (like goods of guests) which were in his power: Non alloc. For the fire in his field was his fire as well as that in his house; he made it, and must see that it did no harm, and must answer the damage if he did. Every man must use his own so as not to hurt another: but if a sudden storm had risen which he could not stop, it was matter of evidence, and he should have shewn it. And Holt, and Rokesby, and Eyre were against the [132 Eng. Rep.494] opinion of Turton, who went upon the difference between fire in a house which was in a man's custody and power, and fire in a field which was not properly so; and that it would discourage husbandry, it being usual for farmers to burn stubble, &c. But the Plaintiff had judgment according to the opinion of the other three." That case, in its principles, applies closely to the present.

    24

    As to the direction of the learned Judge, it was perfectly correct. Under the circumstances of the case it was proper to leave it to the jury whether with reference to the caution which would have been observed by [Bing (N. C.) 477]a man of ordinary prudence, the Defendant had not been guilty of gross negligence. After he had been warned repeatedly during five weeks as to the consequences likely to happen, there is no colour for altering the verdict, unless it were to increase the damages.

    25
    GASELEE J. concurred in discharging the rule.
    26
    VAUGHAN J.
    27

    The principle on which this action proceeds, is by no means new. It has been urged that the Defendant in such a case takes no duty on himself; but I do not agree in that position: every one takes upon himself the duty of so dealing with his own property as not to injure the property of others. It was, if any thing, too favourable to the Defendant to leave it to the jury whether he had been guilty of gross negligence; for when the Defendant upon being warned as to the consequences likely to ensue from the condition of the rick, said, "he would chance it," it was manifest he adverted to his interest in the insurance office. The conduct of a prudent man has always been the criterion for the jury in such cases: but it is by no means confined to them. In insurance cases, where a captain has sold his vessel after damage too extensive for repairs, the question has always been, whether he had pursued the course which a prudent man would have pursued under the same circumstance. Here, there was not a single witness whose testimony did not go to establish gross negligence in the Defendant. He had repeated warnings of what was likely to occur, and the whole calamity was occasioned by his procrastination.

    28

    Rule discharged.

  • 2 Wood v. Groh--"The Gun from the Cabinet"

    Does the reasonable person standard require increased care for dangerous instrumentalties?

    Notes: Defendant, age fifteen, obtained his father’s gun and accidentally shot the plaintiff while intoxicated. He had retrieved the gun from his father’s locked gun cabinet after using a screwdriver to force it open.
    1

    269 Kan. 420
    7 P.3d 1163

    2
    SARAH WOOD, LINDA WOOD, and WARREN WOOD, Appellants/Cross-appellees,
    v.
    DERRY GROH and CHOON GROH, Appellees/Cross-appellants.
    3

    No. 81,826.

    4

    Supreme Court of Kansas.

    5

    Opinion filed June 9, 2000.

    6

    [269 Kan. 421] David R. Cooper, of Fisher, Patterson, Sayler & Smith, L.L.P., of Topeka, argued the cause, and David P. Madden, of the same firm, of Overland Park, and Don C. Krueger, of Krueger & Huth Law Office, of Emporia, were with him on the briefs for appellants/cross-appellees.

    7

    Paul Hasty, Jr., of Wallace, Saunders, Austin, Brown & Enochs, Chtd., of Overland Park, argued the cause, and Jeffrey W. Deane, of the same firm, was with him on the briefs for appellees/cross-appellants.

    8

    The opinion of the court was delivered by

    9
    DAVIS, J.:
    10

    The primary question in this appeal involves the civil standard of care required of those persons having ownership or control of a firearm. The defendant parents kept a .22 caliber handgun in their home. Their minor son obtained the gun and later accidently shot the plaintiffs' minor daughter. In the plaintiffs' personal injury action against the parents, the jury was instructed that the standard of care required of the parents was that of reasonable [269 Kan. 422] care. However, the standard of care required in this state is the highest degree of care. We reverse and remand for further proceedings.

    11

    On the afternoon of May 27, 1995, Ed Groh, age 15, used a screwdriver to open his father's locked gun cabinet and removed a .22 caliber handgun. The gun was not loaded; however, the loaded ammunition clip, as well as additional ammunition, was stored in the cabinet along with the gun. Ed took the gun and ammunition to a friend's house where he and some friends drank beer and practiced "target shooting with some cans." Later that night, Ed went to a party at the Archdekins' house. There were no adults present at the party. Ed carried the gun with him and showed it to others at the party. Sarah Wood, age 15, arrived at the party around midnight. Both Sarah and Ed consumed alcoholic beverages at the party.

    12

    At about 1:30 or 2 a.m., Ed left the party to drink more beer at another friend's house. He returned to the party and at approximately 2:30 a.m., as Sarah and Ed proceeded up the stairs at the Archdekins' house, the gun accidentally discharged, striking Sarah in the left buttock.

    13

    Sarah and her parents, Linda and Warren Wood, filed suit against Ed's parents, Derry and Choon Groh, alleging negligent parental supervision and negligent safeguarding of a gun. The Archdekins were also named defendants in the suit but were dismissed on summary judgment and are not involved in this appeal.

    14

    Trial testimony established that Deny Groh had taken his son target shooting with the gun five or six times. Derry specifically forbade Ed from using the gun without strict parental supervision. Ed knew that he was not to take any of the weapons from the cabinet without Derry's permission. Derry was the only person with a key to the gun cabinet and he kept the key on his personal key ring at all times.

    15

    Linda Wood testified, however, that Ed told her that Derry knew he had the gun and that Derry knew that he occasionally took the gun from the cabinet and shot it. Testimony also revealed that Ed had been arrested prior to the shooting for taking someone's car without permission and "joyriding." Under the terms of his probation [269 Kan. 423] from that incident, Ed was not to possess a firearm without the permission of his probation officer. Derry took Ed target shooting with the gun shortly after the joyriding incident. Ed had a curfew of 11 to 11:30 p.m. on weekends, which he violated by being at the party well past midnight on the night of the shooting. Neither of the Grohs knew where Ed was the night of the shooting.

    16

    A jury returned a verdict in favor of the Woods, finding the Grohs 10% at fault, Sarah 20% at fault, and Ed, who was not a party to the lawsuit, 70% at fault. The jury awarded $100,000 in damages to Sarah and $9,162.50 to her parents, Linda and Warren Wood. Judgment was, therefore, entered in favor of Sarah in the amount of $10,000 and in favor of Linda and Warren in the amount of $916.25.

    17

    The Woods raise two issues on appeal: (1) whether the district court erred in refusing to instruct the jury that the Grohs owed the highest degree of care in safeguarding a handgun; and (2) whether the district court erred by refusing to find the Grohs jointly and severally liable for the combined fault of themselves and their son. The Grohs raise three issues on cross-appeal: (1) whether the district court erred by refusing to impose sanctions for the Woods' post-trial filings; (2) whether the district court properly instructed the jury on the issue of negligent parental supervision of their son; and (3) whether the district court erred by instructing the jury that the Grohs could be found negligent for failing to prevent their son from breaking into a locked gun cabinet.

    18
    (1) Whether the district court erred in refusing to instruct the jury that the Grohs owed the highest degree of care in safeguarding a handgun.
    19
    Standard of Review
    20

    The trial court is required to properly instruct the jury on a party's theory of the case. Errors regarding jury instructions will not demand reversal unless they result in prejudice to the appealing party. Instructions in any particular action are to be considered together and read as a whole, and where they fairly instruct the jury on the law governing the case, error in an isolated instruction may be disregarded as harmless. If the instructions are substantially [269 Kan. 424] correct and the jury could not reasonably have been misled by them, the instructions will be approved on appeal. Hawkinson v. Bennett, 265 Kan. 564, 577-78, 962 P.2d 445 (1998). Where, however, the appellate court reaches a firm conviction that if the trial error had not occurred, there is a real possibility that the jury would have returned a different verdict, the appellate court must reverse and remand. Jackson v. City of Kansas City, 263 Kan. 143, 148, 947 P.2d 31 (1997).

    21
    Discussion and Analysis
    22

    The Woods objected to jury Instruction No. 14, which stated:

    23

    "The plaintiffs, Sarah Wood, Warren Wood and Linda Wood, claim that they sustained damages due to the negligence of Ed Groh.

    "The plaintiffs also claim that they sustained damages due to the fault of Derry Groh and Choon Groh as follows:

    (a) Derry Groh and Choon Groh failed to exercise reasonable care to prevent their son, Ed Groh, from gaining access to the gun;

    (b) Derry Groh and Choon Groh failed to exercise reasonable care to ascertain the whereabouts of their minor child, Ed Groh; and

    (c) Derry Groh and Choon Groh failed to properly exercise reasonable care in the parental supervision over their minor child, Ed Groh." (Emphasis added.)

    24

    In place of Instruction 14, the Woods proposed the following instruction:

    25

    "The duty of one owning a handgun is that of the highest degree of care in safekeeping the handgun because a handgun is considered an inherently dangerous instrument. [Citations omitted.]" (Emphasis added.)

    The proposed instruction was denied based upon the district court's conclusion that a handgun is "not a dangerous instrumentality when it's in an unloaded state."

    26

    Recently, in Long v. Turk, 265 Kan. 855, 962 P.2d 1093 (1998), this court addressed the standard of care required when dealing with a dangerous instrumentality. In Long, the defendant's minor son, Matthew, was driving his car when he encountered the plaintiff's minor son, Tony, driving a van. Matthew and Tony shouted at each other while the vehicles drove side-by-side for a few blocks. Matthew eventually reached under the floor mat and pulled out his father's .357 Magnum handgun and fired one shot out the passenger [269 Kan. 425] side window. The hollow point slug went through the window of Tony's van, killing him.

    27

    Matthew's father owned several guns which were kept in a locked safe, although Matthew knew where the keys were kept. A.357 Magnum and the hollow point bullets for the gun were kept in a gun cabinet. Testimony conflicted as to whether Matthew had permission to take the gun out of the locked cabinet. After depositions were taken of Matthew and his father, Matthew's father moved for summary judgment, asking the court to dismiss the case. The district court granted the motion for summary judgment.

    28

    On appeal, this court reversed the summary judgment, concluding that genuine issues of material fact existed. We concluded that the .357 Magnum handgun was a dangerous instrumentality requiring the highest degree of care. 265 Kan. at 860. We examined the history in this state regarding the standard of care required in dealing with a dangerous instrumentality. Quoting from an earlier opinion of Wroth v. McKinney, 190 Kan. 127, 373 P.2d 216 (1962), we stated:

    29

    "'Kansas has long followed the rule that the highest degree of care is required of all responsible persons having ownership or control of dangerous explosives such as dynamite and firearms.... [T]he degree of care has to be commensurate with the dangerous character of the instrumentality and a duty to exercise the highest degree of care never ceases.'" 265 Kan. at 861.

    30

    Long referred to and quoted from Comment b of the Restatement (Second) of Torts § 298 (1964):

    31

    "'Care required. The care required is always reasonable care. This standard never varies, but the care which it is reasonable to require of the actor varies with the danger involved in his act, and is proportionate to it. The greater the danger, the greater the care which must be exercised.'

    "'... Thus, those who deal with firearms ... are required to exercise the closest attention and the most careful precautions, not only in preparing for their use but in using them.'" 265 Kan. at 861-62.

    32

    This court determined in Long that firearms are inherently dangerous instrumentalities and commensurate with the dangerous character of such instrumentalities, the reasonable care required was the highest degree of care. Long had not been decided at the time this case was submitted to the jury. Nevertheless, consistent [269 Kan. 426] with Long and the cases cited therein, we conclude that the district court erred by not instructing the jury that the highest standard of care is required when dealing with a dangerous instrumentality.

    33

    The instructional error in this case goes to the heart of the controversy. The factual issue to be decided by the jury was whether the Grohs were negligent in storing the gun. There is a substantial difference between the two standards proposed: ordinary care or the highest degree of care. Other jurisdictions considering instructional errors concerning the standard of care to be applied by the jury in its evaluation of the defendant's conduct have concluded that such an error requires reversal. See Ruth v. Rhodes, 66 Ariz. 129, 137, 185 P.2d 304 (1947) (noting generally that failure to instruct on the proper standard of care to which a defendant should be held is usually reversible error, for it is improper that a jury should be allowed to hold against a party when it was given the wrong standard by which to measure the party's conduct); Bailey v. Rose Care Center, 307 Ark. 14, 19, 817 S.W.2d 412 (1991) (holding that reversal was required where the court instructed the jury on the wrong standard of care); Wilson v. City & County of S. F., 174 Cal. App.2d 273, 277, 344 P.2d 828 (1959) (reversal required where jury instructions misled jury into applying ordinary care standard instead of heightened standard of care to carrier); Blackwell's Adm'r v. Union Light, Heat & Power Co., 265 S.W.2d 462, 464-65 (Ky. App. 1953) (holding that instruction which erroneously defined the "highest degree of care" so as to mislead jury into believing that the defendant was held to standard of ordinary care was error requiring reversal); Lindstrom v. Yellow Taxi Co., 298 Minn. 224, 230, 214 N.W.2d 672 (1974) (affirming the trial court's decision to grant a new trial where the trial court had erroneously instructed the jury in a way that led the jury to believe that the defendant was held to an ordinary care standard rather than the "highest degree of care" standard); Urban v. Minneapolis Street Ry. Co., 256 Minn. 1, 6, 96 N.W.2d 698 (1959) (holding that the instructions were confusing as the jury was likely to evaluate the defendant's actions under an ordinary care standard rather than the "highest degree of care" standard); Woods v. Chinn, 224 S.W.2d 583, 587 (Mo. App. 1949) (giving of instruction which [269 Kan. 427] placed ordinary care standard on party rather than "highest degree of care" was erroneous, thereby requiring reversal); Jones v. Port Authority, 136 Pa. Commv. 445, 448-49, 583 A.2d 512 (1990) (noting that carriers owe a heightened duty of care to their fare paying passengers and holding that the trial court erred in instructing the jury in such a way as to mislead it into applying an ordinary care standard); Magbuhat v. Kovarik, 382 N.W.2d 43, 46 (S.D. 1986) (noting that it is prejudicial to instruct the jury on the wrong standard of care); and Coyle v. Metro Seattle, 32 Wash. App. 741, 747, 649 P.2d 652 (1982) (holding that instructions were confusing to jury and that jury could have been misled into thinking that the defendant only had a duty of ordinary care when jury should have evaluated defendant under a "highest degree of care" standard).

    34

    We have concluded that the parents in this case owed the highest duty to protect the public from the misuse of the gun, a dangerous instrumentality, stored in their home. The fact that the gun was not loaded is insignificant, for the ammunition was kept in the same locked cabinet as the gun. Once access to the gun was obtained, access to the ammunition immediately followed. Storage of the ammunition in the same location as the gun in this case resulted in the gun being easily loaded and made it a dangerous instrumentality.

    35

    The parents took significant steps to prevent their son from obtaining possession of the gun. The gun cabinet was locked at all times. Derry Groh was the only person with a key to the cabinet. The key was on his key ring and in his possession at all times. Their son was told and was aware that he was not to use the guns without parental supervision. Their son had attended and passed a hunter safety class. Their son, however, only had to use a screwdriver to gain access to the cabinet and was able to obtain possession of both the gun and the ammunition by doing so.

    36

    We conclude, under the facts of this case, that the instructional error did result in prejudice to the plaintiffs. There is a real possibility that the jury would have returned a different verdict had the correct standard been given to the jury in measuring the conduct of the parents. We, therefore, reverse and remand for further proceedings.

    37
    [269 Kan. 428] (2) Whether the district court erred by refusing to find the Grohs jointly and severally liable for the combined fault of themselves and their son.
    38

    The Woods argue that the district court erred by refusing to find the Grohs jointly and severally liable for the acts of their son.

    39
    Standard of Review
    40

    The interpretation of K.S.A. 60-258a is a question of law and, thus, this court's scope of review is unlimited. See Hamilton v. State Farm Fire & Cas. Co., 263 Kan. 875, 879, 953 P.2d 1027 (1998) (noting that our review is unlimited where the issue is interpretation of a statute).

    41
    Discussion and Analysis
    42

    The Woods objected to submission of this case on a theory of comparative fault pursuant to K.S.A. 60-258a. They argue that the Grohs should be jointly and severally liable for the 70% fault found on the part of their minor son, Ed. They rely on several cases dealing with the duty to control one who intentionally injures another. See Kansas State Bank & Tr. Co. v. Specialized Transportation Services, Inc., 249 Kan. 348, 374-76, 819 P.2d 587 (1991) (imposing joint liability upon those whose duty is to prevent third parties from inflicting injury); Gould v. Taco Bell, 239 Kan. 564, 571, 722 P.2d 511 (1986) (intentional acts of a third party cannot be compared with the negligent acts of a defendant whose duty it was to protect the plaintiff from the intentional acts committed by the third party); M. Bruenger & Co. v. Dodge City Truck Stop, Inc., 234 Kan. 682, 686-87, 675 P.2d 864 (1984) (holding the district court should not have permitted the fault of the negligent bailee to be compared with that of the intentional act of the thief).

    43

    The above-cited cases provide no support for the plaintiffs' argument. The shooting in this case was accidental. The record confirms this and provides no evidence otherwise. Where joint tortfeasors are liable on a theory of negligence, their fault must be compared pursuant to K.S.A. 60-258a. The concept of joint and several liability between joint tortfeasors does not apply in comparative negligence actions. Brown v. Keitt, 224 Kan. 195, Syl. ¶ 5, 580 P.2d 867 (1978).

    44
    [269 Kan. 429] Cross-petition: (1) Whether the district court erred by refusing to impose sanctions for the Woods' post-trial filings.
    45

    Following the trial, the Woods filed a motion to amend to conform to the evidence, a motion to substitute parties, and an objection to the entry of judgment. The thrust of the Woods' motions was to attempt to make the Grohs responsible for the fault of Ed, as the jury had apportioned his fault at 70% and apportioned only 10% fault on the Grohs. A hearing was held and the district court denied the motion to amend and motion to substitute parties. The district court overruled the objection to the entry of judgment. The district court found that the motions "were unnecessary enough to what I consider, without mincing words, garbage. I think they were not appropriate...." The court further noted that it was "convinced that some of the documents filed in this case are an attempt to backdoor judgment against a party [Ed] who has been denied his due process rights." The court also noted that the motions filed by the Woods "rise to the level of legal garbage." Although the court found that the three post-trial filings violated K.S.A. 1999 Supp. 60-211(b), the court chose to verbally admonish the Woods' counsel instead of awarding attorney fees as the Grohs had requested.

    46
    Standard of Review
    47

    The imposition of sanctions pursuant to K.S.A. 1999 Supp. 60-211 is discretionary with the trial court, and its ruling on sanctions will not be disturbed on appeal absent an abuse of discretion. Summers v. Montgomery Elevator Co., 243 Kan. 393, 399, 757 P.2d 1255 (1988); Cornett v. Roth, 233 Kan. 936, 945, 666 P.2d 1182 (1983). Judicial discretion is abused only where no reasonable person would take the view adopted by the trial court. If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. Stayton v. Stayton, 211 Kan. 560, 562, 506 P.2d 1172 (1973).

    48

    The Grohs argue that because the court made a finding that K.S.A. 60-211(b) was violated, the statute requires that the court "shall" award sanctions. Because this is a question involving the [269 Kan. 430] interpretation of 60-211, the standard of review is unlimited, as the interpretation of a statute is a question of law. Smith v. Printup, 262 Kan. 587, 603-04, 938 P.2d 1261 (1997).

    49
    Discussion and Analysis
    50

    The Grohs argue that because the district court found that the Woods' post-trial filings were "unnecessary" and "not appropriate," the court was required to award sanctions in the form of attorney fees.

    51

    K.S.A. 1999 Supp. 60-211 provides in pertinent part:

    52

    "(c) ... If a pleading, motion or other paper provided for by this article is signed in violation of this section, the court, upon motion or upon its own initiative upon notice and after opportunity to be heard, shall impose upon the person who signed it or a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion or other paper, including reasonable attorney fees." (Emphasis added).

    53

    The plain wording of K.S.A. 1999 Supp. 60-211(c) requires that a district court "shall impose" a sanction when a violation of K.S.A. 1999 Supp. 60-211(b) is found, as in this case. The statute, however, does not specifically require a sanction of attorney fees, as it gives the district court the discretion to apply "an appropriate sanction." Further, the statute indicates that the sanction "may include" attorney fees. The statute does not require a district court to award monetary sanctions for a violation of 60-211(b). The word "sanction" does not require courts to award "fees" as the Grohs argue.

    54

    Kansas courts often look to the case law on the federal rules as guidance for interpretation of our own rules, as the Kansas rules of civil procedure were patterned after the federal rules. See Stock v. Nordhus, 216 Kan. 779, 782, 533 P.2d 1324 (1975) (noting that the Kansas courts have traditionally followed the interpretation of federal procedural rules and that the federal case law is highly persuasive). Although Fed. R. Civ. Proc. 11 is not identical to K.S.A. 1999 Supp. 60-211, the intent behind the rules is the same. The purpose of both rules is to deter "repetition of improper conduct." Waltz v. County of Lycoming, 974 F.2d 387, 390 (3d Cir. [269 Kan. 431] 1992). An award of attorney fees "should not automatically be the sanction of choice." 974 F.2d at 390.

    55

    Courts should take the following factors into consideration when determining whether to sanction a party and what kind of sanction to impose:

    56

    (1) whether the improper conduct was willful or negligent;

    (2) whether it was part of a pattern of activity or an isolated event;

    (3) whether it infected the entire pleading or only one particular count or defense;

    (4) whether the person has engaged in similar conduct in other litigation;

    (5) whether it was intended to injure;

    (6) what effect it had on the litigation process in time or expense;

    (7) whether the responsible person is trained in the law;

    (8) what amount, given the financial resources of the responsible person, is needed to deter that person from repetition in the same case; and

    (9) what amount is needed to deter similar activity by other litigants.

    57

    Fed. R. Civ. Proc. 11, Advisory Committee notes 1993.

    58

    We hold that the plain meaning of K.S.A. 1999 Supp. 60-211(c), coupled with the legislative intent of the statute, allows courts to impose nonmonetary sanctions in the form of admonitions, as well as monetary sanctions. Courts are not required to award attorney fees when a violation of K.S.A. 1999 Supp. 60-211(b) is found. The district court has the discretion to determine what type of sanctions are appropriate in a given case. The district court did not abuse its discretion in admonishing the Woods for the filing of the three post-trial motions.

    59
    (2) Whether the district court properly instructed the jury on the issue of negligent parental supervision.
    60

    The Grohs, in their cross-appeal, argue that there was insufficient evidence to justify a jury instruction on the issue of negligent parental supervision. Although the Grohs frame this issue as one [269 Kan. 432] of an incorrect jury instruction, the argument actually concerns a sufficiency of evidence question.

    61
    Standard of Review
    62

    "[W]hen a verdict is challenged for insufficiency of evidence or as being contrary to the evidence, [the appellate court] does not weigh the evidence or pass on the credibility of the witnesses. `If the evidence, with all reasonable inferences to be drawn therefrom, when considered in the light most favorable to the prevailing party, supports the verdict, it will not be disturbed on appeal.'" Brown v. United Methodist Homes for the Aged, 249 Kan. 124, 127, 815 P.2d 72 (1991).

    63
    Analysis and Discussion
    64

    The Restatement (Second) of Torts § 316 (1964) sets forth the tort of negligent parental supervision and states:

    65

    "A parent is under a duty to exercise reasonable care so to control his minor child as to prevent it from intentionally harming others or from conducting itself as to create an unreasonable risk of bodily harm to them, if the parent

    (a) knows or has reason to know that he has the ability to control his child, and

    (b) knows or should know of the necessity and opportunity for exercising such control."

    66

    The jury was given Instruction No. 14A, which states:

    67

    "A parent is under a duty to exercise reasonable care to control their minor child as to prevent said child from intentionally harming others or from so conducting themselves as to create an unreasonable risk of bodily harm to others, if the parents know or have reason to know that they have the ability to control their child and know or should know of the necessity and opportunity for exercising such control."

    68

    Contrary to the Grohs' argument, Instruction No. 14A is a correct statement of the tort of negligent parental supervision. The instruction given is consistent with the Restatement (Second)of Torts and with the Court of Appeals' decision in Mitchell v. Wiltfong, 4 Kan. App.2d 231, 604 P.2d 79 (1979), and properly framed the question raised by the evidence.

    69
    (3) Whether the district court erred by instructing the jury that the Grohs could be found negligent for failing to prevent Ed from breaking into a locked gun cabinet to obtain the .22 caliber handgun.
    70

    [269 Kan. 433] The Grohs make an additional argument concerning Instruction No. 14A. They argue that there was insufficient evidence adduced at trial to support Instruction No. 14A. The only real issue concerns the second element of the tort concerning the question of whether the Grohs "knew or should have known of the necessity and opportunity for exercising such control."

    71

    Although the evidence at trial revealed that Ed had only one previous run-in with the law, the Grohs knew that Ed had a curfew and that it was a violation of his probation to possess a gun without the permission of his probation officer. Linda Wood testified that at the hospital after the incident, she asked Ed if Derry Groh knew he had the gun, and that Ed told her, "[H]e knows I take it sometimes and shoot it." The evidence, with all reasonable inferences to be drawn therefrom, when considered in the light most favorable to the prevailing party, was sufficient to support the giving of Instruction 14A. See Brown v. United Methodist Homes for the Aged, 249 Kan. at 127.

    72

    The Grohs argue that the "case should never have been submitted to the jury and a judgment should have been entered in favor of Defendants and against Plaintiffs on all counts." The Grohs further suggest that this court "remand the case to the Trial Court with instructions to enter judgment in favor of Defendants and against Plaintiffs on all counts as the case was improperly submitted to the jury when, in fact, it was a question of law to be resolved in Defendant's favor by the Trial Court." The Grohs claim that there was insufficient evidence adduced at trial to show that the Grohs breached a duty of ordinary care in the safeguarding of the gun and, therefore, the case should have been dismissed.

    73

    A review of the record reveals that the Grohs did not raise this issue in the district court. An objection was made to Instruction No. 14 in which the Grohs argued that the evidence did not show they breached any duty of care in the safekeeping of the gun, but no motion was made to dismiss the case. Their trial objection related solely to the language used in the instruction. They did not move for dismissal, nor did they seek summary judgment on this issue. Issues not raised before the trial court cannot be raised for the first time on appeal.Ripley v. Tolbert, 260 Kan. 491, 513, 921 [269 Kan. 434] P.2d 1210 (1996). A new legal theory may not be asserted for the first time on appeal or raised in a reply brief. Jarboe v. Board of Sedgwick County Comm'rs, 262 Kan. 615, 622, 938 P.2d 1293 (1997).

    74

    The Grohs further argue that the issue of negligence in the safekeeping of the gun was improperly before the jury because they cannot be negligent in keeping a gun locked in a cabinet where the only way to access the cabinet was by breaking into it with a screwdriver. In other words, the Grohs argue that they cannot be negligent for locking a gun in a gun cabinet. The Grohs correctly note that owners of firearms are not strictly liable for their misuse.

    75

    However, although the gun was kept in a locked cabinet, the gun was taken from the cabinet when Ed used a screwdriver to easily break into the cabinet. Even though the ammunition was stored in a separate compartment within the cabinet, it was still accessible by breaking into the cabinet with a screwdriver. It was a simple process for their minor child to break into the cabinet and load the ammunition clip into the gun once the cabinet was open. The question to be resolved is whether the parents used the highest degree of care is storing the gun their son used in accidentally injuring the plaintiff. There are sufficient disputed facts in this case to require that the matter be resolved by the jury on appropriate instruction.

    76

    Reversed and remanded.

    77
    ABBOTT, J., dissenting:
    78

    As I read the record, Linda Wood asked whether Deny Groh knew Ed Groh had the gun and Ed replied, "[H]e knows I take it sometimes and shoot it." The testimony was consistent throughout that Ed only shot the gun when Derry was along and supervising. I find nothing in the briefs which indicate that Deny ever allowed Ed to have the gun unsupervised. Ed's comment that he occasionally took the gun from the cabinet and shot it can only be interpreted as having the gun when he was with his father.

    79

    Here, the gun was under lock and key, and Deny kept control of the key. The majority, in my opinion, makes it almost absolute [269 Kan. 435] liability to own a gun. What more can a gun owner do than lock up an unloaded gun and keep control of the key.

    80

    I would hold the Grohs were not negligent as a matter of law.

    81

    MCFARLAND, C.J., joins in the foregoing dissenting opinion.

  • 3 Ellis v. D'Angelo-- "The 4-Year-Old Bone Breaker"

    Does a defendant's age alone justify adjusting his or her standard of care?

    Notes: Plaintiff was hired as a babysitter for the 4-year old defendant. On the plaintiff’s first day of work, the defendant pushed the plaintiff violently to the ground, fracturing her arms and wrists. The defendant child was sued for both battery and negligence in harming the plaintiff.
    1
    253 P.2d 675
    2
    116 Cal.App.2d 310
    3
    ELLIS
    v.
    4
    D'ANGELO et al.
    5
    Civ. 15173.
    6
    District Court of Appeal, First District, Division 2, California.
    7
    Feb. 27, 1953.
    Hearing Denied April 27, 1953.
    8

    [253 P.2d 676] [116 Cal.App.2d 312] Shirley, Saroyan, Calvert & Sullivan, San Francisco, for appellant.

    9

    Alexander, Bacon & Mundhenk, San Francisco, Herbert Chamberlin, San Francisco, for respondent.

    10
    DOOLING, Justice.
    11

    The plaintiff appeals from a judgment for the defendants entered after a demurrer was sustained to her first amended complaint without leave to amend. The complaint is in three counts. Count one alleges a battery by defendant Salvatore D'Angelo, a minor of the age of four years; the second count alleges injuries suffered by the plaintiff as the proximate result of the minor defendant negligently shoving and pushing the plaintiff violently to the floor; the third count seeks a recovery from the parents of the child for their negligence in failing to warn or inform plaintiff of the habit of the child of violently attacking other people. According to the allegation the plaintiff was by the minor defendant 'pushed, impelled and knocked * * * violently to the floor' and suffered serious injuries including a fracturing of the bones of both her arms and wrists.

    12

    [116 Cal.App.2d 313] The two counts against the minor will be discussed together. Appellant points to the language of Civil Code, section 41: 'A minor, or person of unsound mind, of whatever degree, is civilly liable for a wrong done by him, but is not liable in exemplary damages unless at the time of the act he was capable of knowing that it was wrongful.'

    13

    This section is based upon sections 23 and 24 of the Field Commission's draft of a Civil Code which was submitted to the New York Legislature in 1865. This may be an anachronistic vestige of earlier common law principles, in other fields now outmoded, of liability without fault for trespass vi et armis (see Bohlen, Liability In Tort Of Infants And Insane Persons, 23 Mich.L.Rev. 9) but it remains true that our legislature in Civ.Code, sec. 41 above quoted by providing that a minor or person or unsound mind is civilly liable for wrongs done by him, and particularly by the qualification that he shall not be held for exemplary damages unless he was capable of knowing that the act was wrongful, has indicated clearly that it intended that a minor or person of unsound mind should be liable in compensatory damages for his tortious conduct even though he was not capable of knowing the wrongful character of his act at the time that he committed it. Startling as this idea may be at first blush, we are bound by this legislative declaration and taking it, and the state of the common law with relation to the liability of infants and persons of unsound mind of which it was intended as a codification, it is our duty to determine the legislative intent and to enforce it.

    14

    It is generally stated in 27 Am.Jur., Infants, sec. 90, pp. 812-813: 'Liability of an infant in a civil action for his torts is imposed as a mode, not of punishment, but of compensation. If property has been destroyed or other loss occasioned by a wrongful act, it is just that the loss should fall upon the estate of the wrongdoer rather than on that of a guiltless person, and that without reference to the question of moral [253 P.2d 677] guilt. Consequently, for every tortious act of violence or other pure tort, the infant tort-feasor is liable in a civil action to the injured person in the same manner and to the same extent as an adult. * * * Infancy, being in law a shield and not a sword, cannot be pleaded to avoid liability for frauds, trespasses, or torts. * * *

    15

    'A child of tender years may be held liable for acts [116 Cal.App.2d 314] of violence, and liability has often been imposed for the injuries caused by such acts, although committed in play and without the intent to inflict substantial injury. Of course, if the injury was an accident, or the acts of the child were only the natural activity of friendly play, there is no liability.'

    16

    So Prosser in his work on Torts, pp. 1085-1086 says:

    17

    'The law of torts * * * has been more concerned with the compensation of the injured party than with the moral guilt of the wrongdoer, and has refused to hold that an infant is immune from assault and battery, trespass, conversion, defamation, seduction, and negligence. * * *

    'This general rule denying immunity must, however, be qualified in a number of respects. In many torts, the state of mind of the actor is an important element. For example, an intent to bring about physical contact is necessary to battery, and in most jurisdictions 'scienter,' or intent to deceive, is said to be essential to deceit. It has been recognized that a child may be of such tender years that he is not an intelligent actor and is incapable of the specific intent required, so that the tort has not been committed, and the event is to be classified as an unavoidable accident. Likewise, in the case of negligence, children have been recognized as a special group to whom a more or less subjective standard of conduct is to be applied, which will vary according to their age, intelligence and experience, so that in many cases immunity is conferred in effect by finding merely that there has been no negligence.'

    18

    The same qualification last quoted from Prosser is stated in 27 Am.Jur. sec. 91, pp. 813-814: 'The general rule that infants are responsible, like other persons, for their torts is subject to the qualification that the torts for which they are so liable must not involve an element necessarily wanting in their case. Their liability may be affected by their mentality. Thus, in the case of slander, malice is a necessary ingredient in the wrong. * * * It is obvious, therefore, that in the case of slander an infant cannot be held liable for his tort until he arrives at that age or acquires that capacity which renders him morally responsible for his actions. * * * There is authority to the effect that a minor charged with actionable negligence is not to be held to the standard of care of an adult without regard to his nonage and want of experience. Reasonable care, having regard to the age and stage of development of the individual, [116 Cal.App.2d 315] is required of minors as well as adults, and no different measure is to be applied to their primary than to their contributory faults. * * * A child is required to exercise only that degree of care which the great mass of children of the same age ordinarily exercise * * * taking into account the experience, capacity, and understanding of the child.'

    19

    See also 1 Cooley on Torts, 4th Ed., sec. 64, pp. 186-187, sec. 66, p. 194 et seq.; Harper on Torts, sec. 282, pp. 616-617.

    20

    From these authorities and the cases which they cite it may be concluded generally that an infant is liable for his torts even though he lacks the mental development and capacity to recognize the wrongfulness of his conduct so long as he has the mental capacity to have the state of mind necessary to the commission of the particular tort with which he is charged. Thus as between a battery and negligent injury an infant may have the capacity to intend the violent contact which is essential to the commission of battery when the same infant would be incapable of realizing that his heedless conduct might foreseeably lead to injury to another which is the essential capacity of mind to create liability for negligence.

    21

    [253 P.2d 678] We may take it as settled in the case of infants as stated in the quotation from Am.Jur. above set out that 'no different measure (of negligence) is to be applied to their primary than to their contributory faults.' In a case involving the question of the liability of an infant for his negligent conduct the court in Hoyt v. Rosenberg, 80 Cal.App.2d 500 at pages 506-507, 182 P.2d 234, at page 238, 173 A.L.R. 883, said: 'While the question as to whether a minor has been negligent in certain circumstances is ordinarily one of fact for the jury, an affirmative finding thereon * * * must conform to and be in accordance with the established rule that a minor is expected to use, not the quantum of care expected of an adult, but only that degree or amount of care which is ordinarily used by children of the same age under similar circumstances.' This is the same test applied in determining a child's contributory negligence. (19 Cal.Jur., Negligence, sec. 41, pp. 604-605.)

    22

    So far as the count charging the infant defendant with neglience is concerned the question presented to the court is whether as a matter of common knowledge we can say that a child four years of age lacks the mental capacity [116 Cal.App.2d 316] to realize that his conduct which is not intended to bring harm to another may nevertheless be reasonably expected to bring about that result. In the absence of compelling judicial authority to the contrary in the courts of this state we are satisfied that a four year old child does not possess this mental capacity. In the case of Crane v. Smith, 23 Cal.2d 288, 301, 144 P.2d 356, 364, the court said of a three year old child: 'And since Janice was too young to be guilty of contributory negligence, the appellant's liability to her is established.' In support of this holding the court cited Gonzales v. Davis, 197 Cal. 256, 240 P. 16, which involved a five year old child.

    23

    Appellant cites Baugh v. Beatty, 91 Cal.App.2d 786, 793, 205 P.2d 671, 675, where the court said of a four year old boy: 'Whether a minor of tender years has conducted himself with the care and prudence due from one of his years and experience is strictly a question of fact for the jury.' The court cited only Opelt v. Al. G. Barnes Co., 41 Cal.App. 776, 183 P. 241, which involved a ten year old child. The child had been bitten by a chimpanzee at a circus and the court later stated the question to be 'whether plaintiff knowingly and voluntarily invited the injury' and 'knowingly or consciously placed himself in danger.' Such conduct is more than negligence since it involves the intentional taking of a risk and the opinion on its face indicates that the court was making no clear distinction between mere negligent conduct and deliberate and premeditated conduct.

    24

    No purpose will be served by reviewing all the authorities. None has been found in this State which we feel compels us to hold that a four year old has the mental capacity for negligent conduct. It is stated in a note collecting the cases from other jurisdictions in 107 A.L.R. 102 et seq.: 'In a majority of the cases it seems that the courts have regarded a child between the ages of four and five years as incapable of personal negligence, the rule of conclusive incapacity applying to a child of such an age.' (See further cases collected in the supplement to this note in 174 A.L.R. 1119.) We are satisfied from our own common knowledge of the mental development of four year old children that it is proper to hold that they have not at that age developed the mental capacity for foreseeing the possibilities of their inadvertent conduct which would rationally support a finding that they were negligent. The mental development of children from that age forward is so rapid that cases such as Smith v. [116 Cal.App.2d 317] Harger, 84 Cal.App.2d 361, 191 P.2d 25 dealing with a five year old child are not helpful to us.

    25

    When it comes to the count charging battery a very different question is presented. We certainly cannot say that a four year old child is incapable of intending the violent or the harmful striking of another. Whether a four year old child had such intent presents a fact question; and in view of section 41 of the Civil Code which makes the recognition of the wrongful [253 P.2d 679] character of the tort immaterial so far as the liability for compensatory damages is concerned, we must hold that the count charging battery states a cause of action.

    26

    The third count is without question sufficient to state a cause of action against the defendant parents. It alleges that these defendants employed plaintiff for the first time to act as baby sitter for their son, that the son 'habitually engaged in violently attacking and throwing himself forcibly and violently against other people, and violently shoving and knocking them, all of which said defendant parents knew', that said 'parents negligently and carelessly failed to warn plaintiff of said child's said traits and disposition and negligently and carelessly failed to inform plaintiff that said child habitually indulged in such violent and furious attacks on others,' and that shortly after plaintiff entered on her duties in the home the child attacked her to her resultant injury.

    27

    While it is the rule in California, as it is generally at the common law, that there is no vicarious liability on a parent for the torts of a child there is 'another rule of law relating to the torts of minors which is somewhat in the nature of an exception, and that is that a parent may become liable for an injury caused by the child, where the parent's negligence made it possible for the child to cause the injury complained of, and probable that it would do so.' Buelke v. Levenstadt, 190 Cal. 684, 689, 214 P. 42, 44; Rocca v. Steinmetz, 61 Cal.App. 102, 214 P. 257.

    28

    Section 316, Restatement of Torts states the rule:

    29

    'A parent is under a duty to exercise reasonable care so to control his minor child as to prevent it from intentionally harming others or from so conducting itself as to create an unreasonable risk of bodily harm to them, if the parent

    '(a) knows or has reason to know that he has the ability of control his child, and

    '(b) knows or should know of the necessity and opportunity for exercising such control.'

    30

    In a note in 155 A.L.R. at p. 87 [116 Cal.App.2d 318] cases are collected under the following statement: 'The parent will incur liability for his minor child's intentional acts of violence or damage to persons or property if, knowing of the child's vicious or destructive tendencies or acts, he fails to exercise reasonable measures to restrain or discipline the child and thus encourages or acquiesces in such misconduct on the part of the child.'

    31

    Among the cases there cited are Condel v. Savo, 350 Pa. 350, 39 A.2d 51, 155 A.L.R. 81, which held liable the parents of a boy who assaulted a younger child and threw him down an embankment where the boy was in the habit of attacking younger children and the parents with knowledge of such conduct had failed to exercise reasonable care to control him; Norton v. Payne, 154 Wash. 241, 281 P. 991, where under similar circumstances of previous conduct and lack of restraint the child struck a younger child in the eye with a stick; Ryley v. Lafferty, D.C., 45 F.2d 641, also an assault on a younger child with similar knowledge of previous conduct and lack of restraint; Hoverson v. Noker, 60 Wis. 511, 19 N.W. 382, where two young boys were in the habit of shooting guns and shouting a passersby and the parents with knowledge took no care to prevent their conduct; Johnson v. Glidden, 11 S.D. 237, 76 N.W. 933, where with knowledge that he was using it negligently the parents permitted their son to continue in possession of an air gun.

    32

    Most nearly in point is Zuckerberg v. Munzer, 197 Misc. 791, 95 N.Y.S.2d 856, affirmed 277 App.Div. 1061, 100 N.Y.S.2d 910. In this case, as in ours, a person employed in the household was attacked by a young son. Plaintiff charged that the boy's tendency to assault people was well known to the parent and that the parent had not warned the plaintiff of this propensity. The court citing Harper's Law to Torts, sec. 283 said: 'There are situations in which the parent may be held liable * * * 4. Where the parent's negligence consists entirely of his failure to restrain the child from vicious conduct imperilling others, when the parent has knowledge of [253 P.2d 680] the child's propensity toward such conduct.'

    33

    See also: Prosser on Torts, p. 914; Shearman & Redfield on Negligence, Rev.Ed.Zipp, sec. 144, p. 344; 67 C.J.S, Parent and Child, § 68, pp. 798-800; Agnesini v. Olsen, 277 App.Div. 1006, 100 N.Y.S.2d 338; Sawyer v. Kelly, 194 Okl. 516, 153 P.2d 97; Mazzocchi v. Seay, 126 W.Va. 490, 29 S.E.2d 12; Gudziewski v. Stemplesky, 263 Mass. 103, 160 N.E. 334; [116 Cal.App.2d 319] Kuchlik v. Feuer, 239 App.Div. 338, 267 N.Y.S. 256; Vallency v. Rigillo, 91 N.J.L. 307, 102 A. 348; Davis v. Gavalas, 37 Ga.App. 242, 139 S.E. 577; Mendola v. Sambol, 166 Pa.Super. 351, 71 A.2d 827.

    34

    Respondent relies on Weber v. Pinyan, 9 Cal.2d 226, 70 P.2d 183, 112 A.L.R. 407; Hagerty v. Powers, 66 Cal. 368, 5 P. 622; Figone v. Guisti, 43 Cal.App. 606, 185 P. 694; and Hudson v. Von Hamm, 85 Cal.App. 323, 259 P. 374 as stating a different rule for California. Hagerty v. Powers was a case in which the complaint alleged that the defendant father negligently etc. permitted his eleven year old son to have a loaded revolver. The complaint did not allege any propensities in the child making it dangerous for him to have a gun or that any such was known to the father. The court said 'that a father is not liable * * * for the torts of his child, committed without his knowledge, consent, or sanction'. [66 Cal. 368, 5 P. 622.] We entertain no doubt that today if the complaint stated facts showing traits in the child making it dangerous to let him have a loaded pistol and knowledge of those traits by the father it would be held to state a cause of action. The case would then on principle be no different from Rocca v. Steinmetz, supra, 61 Cal.App. 102, 214 P. 257, where liability was imposed on a father who negligently allowed his son to drive an automobile with knowledge that he was a careless and reckless driver.

    35

    Figone v. Guisti, supra, 43 Cal.App. 606, 185 P. 694, involved a 17 year old boy who shot another with a pistol left by the boy's father in a drawer. No proof was made that the boy was reckless or unfit in any way to have access to a loaded pistol. Such proof was attempted by showing that the gun on a previous occasion had been exhibited by the boy to another. The court said of this evidence: 'There is nothing in this evidence to show that young Guisti showed any inclination to injure any one.' 43 Cal.App. at page 612, 185 P. at page 697.

    36

    Hudson v. Von Hamm, supra, 85 Cal.App. 323, 259 P. 374 was an attempt to impose vicarious liability on the parent for a tort committed by the child in Hawaii, where by statute the parent even without fault is made liable for the torts of his child. The court held the enforcement of such liability contrary to the policy of the forum. There was no discussion of the question of the parent's liability for his own negligence. The court 85 Cal.App. at page 326, 259 P. at page 376, quoted Shearman & Redfield on Negligence to the following effect: 'He is liable, however, only for his own fault, and not for that of the child.' The only [116 Cal.App.2d 320] allegation of knowledge by the parent was that the child was 'disposed to climb about the furniture', clearly not enough to show dangerous conduct.

    37

    In Weber v. Pinyan, supra, 9 Cal.2d 226, at page 235, 70 P.2d 183, at page 188, 112 A.L.R. 407, the court said: 'It is the settled rule in this state that a parent is not liable for the tort of his minor child without participation in the fault by the parent.' This was only a cryptic way of saying that where the parent is without fault he is not liable for the tort of his minor child.

    38

    The judgment is reversed with directions to the trial court to overrule the demurrer to the first and third counts of the amended complaint.

    39

    NOURSE, P. J., and GOODELL, J., concur.

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