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VII.A. 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?

    1
    132 Eng. Rep. 490
    2
    Vaughan v. Menlove. Jan. 23, 1837.
    3
    [S. C. 4 Scott, 244; 3 Hodges, 51; 6 L.J.C.P.92; 1 Jur. 215: at Nisi Prius, 7 Car. & P.525.]
    5

    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.

    7

    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,

    8

    Page 491

    9

    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-[469]-mises the Defendant then had notice : yet the Defendant well knowing the premises, but not regarding his duty in that behalf, on, &c. [sic], and from thence until and upon a certain day, to wit, on, &c[sic]. 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 removed 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.[sic], 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 cottages, did ignite, take fire, and break out into flame, and by fire and flame thence issuing and arising, the said buildings 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.[sic], by reason of such [470] carelessness, negligence, and improper conduct of the Defendant 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.

    11

    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 into 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.

    13

    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 a state when put together, as to give rise to discussions on the probability of fire : that though there were conflicting opinions on the subject, yet during a period of five weeks, the Defendant was repeatedly warned of his [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

    14

    Page 472.

    15

    the Defendant’s barn and stables, and thence to the Plaintiff‘s cottages, which were entirely destroyed.

    17

    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.

    19

    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.

    21

    Talfourd Serjt. and Whately, shewed cause.

    23

    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-[472]-stance of the issue ; Thomas v. Morgan(2 Cr. M. & R. 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 neighbours’ 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 down, and there is no other that would not be open to much greater uncertainties.

    25

    R. V. RICHARDS, in support of the rule.

    27

    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 done 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 [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.”

    29

    In Foster v. Pearson too, (I C. M. & R. 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 are and caution in the taker of

    30

    Page 493.

    31

    such securities has been treated as essential to the validity of his title, besides, and independently of, honesty of purpose.” [474]

    32

    TINDAL C. J. I agree that this is a case primae 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 a bailment 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 thereby occasioned to the property of his neighbour, can any one doubt that an action on the case would lie? 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 be too uncertain to act upon ; and that the question ought to have been whether the Defendant had acted honestly and bona fide to the best of his own judgment. That, [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 back again to the lender ; because the bailee has a benefit by the use of them, so as if the bailee be 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.

    34

    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. [476] That was in substance the criterion presented to the jury in this case, and therefore the present rule must be discharged.

    36

    PARK J. 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 Turbervill 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 blada 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

    37

    Page 494.

    38

    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[sic]. But the Plaintiff had judgment according to the opinion of the other three.” That case, in its principles, applies closely to the present.

    40

    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 [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.

    42

    GASELEE J. concurred in discharging the rule.

    44

    VAUGHAN J. 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.

    46

    Rule discharged.

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

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

    1
    269 Kan. 420 (2000)
    2
    7 P.3d 1163
    3
    SARAH WOOD, LINDA WOOD, and WARREN WOOD, Appellants/Cross-appellees,
    v.
    DERRY GROH and CHOON GROH, Appellees/Cross-appellants.
    4
    No. 81,826.
    5

    Supreme Court of Kansas.

    6
    Opinion filed June 9, 2000.
    7

    421*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.

    8

    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.

    9

    The opinion of the court was delivered by

    10

    DAVIS, J.:

    11

    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 422*422 care. However, the standard of care required in this state is the highest degree of care. We reverse and remand for further proceedings.

    12

    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.

    13

    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.

    14

    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.

    15

    Trial testimony established that Derry 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.

    16

    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 423*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.

    17

    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.

    18

    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.

    19

    (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.

    20

    Standard of Review

    21

    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 424*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).

    22

    Discussion and Analysis

    23

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

    24
    "The plaintiffs, Sarah Wood, Warren Wood and Linda Wood, claim that they sustained damages due to the negligence of Ed Groh.
    25
    "The plaintiffs also claim that they sustained damages due to the fault of Derry Groh and Choon Groh as follows:
    26
    (a) Derry Groh and Choon Groh failed to exercise reasonable care to prevent their son, Ed Groh, from gaining access to the gun;
    27
    (b) Derry Groh and Choon Groh failed to exercise reasonable care to ascertain the whereabouts of their minor child, Ed Groh; and
    28
    (c) Derry Groh and Choon Groh failed to properly exercise reasonable care in the parental supervision over their minor child, Ed Groh." (Emphasis added.)
    29

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

    30
    "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.)
    31

    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."

    32

    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 425*425 side window. The hollow point slug went through the window of Tony's van, killing him.

    33

    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.

    34

    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:

    35
    "`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.
    36

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

    37
    "`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.'
    38
    "`... 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.
    39

    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 426*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.

    40

    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 427*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).

    41

    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.

    42

    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.

    43

    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.

    44

    428*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.

    45

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

    46

    Standard of Review

    47

    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).

    48

    Discussion and Analysis

    49

    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).

    50

    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). 429*429 Cross-petition: (1) Whether the district court erred by refusing to impose sanctions for the Woods' post-trial filings.

    51

    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.

    52

    Standard of Review

    53

    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).

    54

    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 430*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).

    55

    Discussion and Analysis

    56

    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.

    57

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

    58
    "(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).
    59

    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.

    60

    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. 431*431 1992). An award of attorney fees "should not automatically be the sanction of choice." 974 F.2d at 390.

    61

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

    62

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

    63

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

    64

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

    65

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

    66

    (5) whether it was intended to injure;

    67

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

    68

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

    69

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

    70

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

    71

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

    72

    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.

    73

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

    74

    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 432*432 of an incorrect jury instruction, the argument actually concerns a sufficiency of evidence question.

    75

    Standard of Review

    76
    "[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).
    77

    Analysis and Discussion

    78

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

    79
    "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
    80
    (a) knows or has reason to know that he has the ability to control his child, and
    81
    (b) knows or should know of the necessity and opportunity for exercising such control."
    82

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

    83
    "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."
    84

    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.

    85

    (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.

    86

    433*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."

    87

    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.

    88

    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.

    89

    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, 921 434*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).

    90

    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.

    91

    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.

    92

    Reversed and remanded.

    93

    ABBOTT, J., dissenting:

    94

    As I read the record, Linda Wood asked whether Derry 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 Derry 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.

    95

    Here, the gun was under lock and key, and Derry kept control of the key. The majority, in my opinion, makes it almost absolute 435*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.

    96

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

    97

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

  • 3 Goss v. Allen--"The Nearly-Adult Skier"

    What activities inherently require an adult standard of care?

    1
    70 N.J. 442 (1976)
    2
    360 A.2d 388
    3
    JAQUELINE GOSS, PLAINTIFF-RESPONDENT,
    v.
    STEVEN ALLEN, DEFENDANT-APPELLANT.
    4

    The Supreme Court of New Jersey.

    5
    Argued November 17, 1975.
    6
    Reargued March 22, 1976.
    7
    Decided June 24, 1976.
    8

    444*444 Mr. Rocco L. D'Ambrosio argued the cause for defendant-appellant (Messrs. O'Donnell, Leary, & D'Ambrosio, attorneys).

    9

    Mr. Herbert E. Weiland argued the cause for plaintiff-respondent (Messrs. Hoyt, Weiland & Hoyt, attorneys).

    10

    The opinion of the Court was delivered by SULLIVAN, J.

    11

    This case involves a claim for personal injuries and arises out of a skiing accident which occurred at a ski resort in Vermont. Suit was brought in New Jersey because defendant, who was involved in the accident, is a resident of New Jersey.[1] The jury returned a verdict for defendant based on its specific finding that defendant was not negligent. On appeal, the Appellate Division, in an opinion reported at 134 N.J. Super. 99 (1975), reversed and remanded for a new trial holding that the trial judge committed plain error in his charge to the jury as to the 445*445 standard of care required of defendant in the cirmumstances. We reverse and reinstate the judgment for defendant.

    12

    The factual situation involved is detailed in the Appellate Division opinion and may be summarized as follows:

    13

    On February 21, 1972, plaintiff, an experienced skier, was serving as a first aid advisor on the ski patrol at the Mad River Glen ski resort in Vermont. The facility includes a beginners slope which near its end makes an abrupt left turn. The accident occurred some 60 feet beyond the end of the slope in a flat area where plaintiff and a friend happened to be standing taking pictures. Plaintiff had been working in the first aid room which is adjacent to the area where plaintiff and her friend were standing.

    14

    Defendant, then 17 years of age, was a beginning skier who had limited cross-country skiing experience but had never attempted a downhill run. Nor had he ever been to Mad River Glen before. Upon arrival, defendant was sent to the beginners' slope. However, instead of riding the mechanical T-bar lift to the top, defendant confined his first run to the lower portion of the slope. He walked a quarter of the way up the hill and started to ski down, successfully completing the comparatively short run of 30 feet or so until he came to the abrupt left turn. In attempting to negotiate the turn, defendant lost control over his momentum and direction. He saw the two girls ahead of him but because of the short distance remaining, his efforts to regain control and his lack of experience, he did not call out until he was almost upon the girls. Plaintiff attempted to get out of the way but was unable to do so and was struck and knocked down by defendant.

    15

    Prior to trial, the court ruled that the law of the case would be the law of Vermont. Counsel have agreed that Vermont law as to this accident is the same as New Jersey's.

    16

    The trial court charged the jury that the standard of care applicable in the case was not the same degree of care required of an adult, but rather that degree of care which a reasonably prudent person of that age (defendant was 446*446 17 years of age) would have exercised under the same or similar circumstances. Following a side bar conference, the court supplemented its charge with the following:

    17

    "All right. Perhaps I didn't charge as clearly as I thought that I had charged with reference to the duty of a 17 year old. I know that I used the term 17-year-old beginner, and that may lead to some confusion. Let me try to straighten it out. The law imposes on a 17 year old that standard of care that a 17 year old with the experience and background that this 17 year old had. It does not impose any higher or any lower degree of care than can reasonably be expected of a 17 year old with respect to the experience and background that Mr. Allen had in this case."

    18

    There was no exception taken to the charge. As heretofore noted, the jury in answer to an interrogatory submitted to it found the defendant not negligent.

    19

    Plaintiff appealed solely on the ground that the jury verdict was against the weight of the evidence. The Appellate Division, however, sua sponte, raised the issue of plain error in the court's charge on the applicable standard of care. Following briefing of the issue and oral argument thereon, the Appellate Division reversed and remanded for a new trial finding plain error in the charge. In essence, the Appellate Division held that skiing was an adult activity and that where a child engages in an activity which is normally undertaken by adults, such as skiing, he should be held to the standard of adult skill, knowledge and competence, without allowance for his immaturity. The Appellate Division added that had an adult standard of care been imposed, as it should have been, the jury might well have found defendant negligent.

    20

    The Appellate Division determination that defendant, in the circumstances presented, should be held to the standard of care required of an adult was premised on its conclusion that skiing is an activity which may be dangerous to others and is normally undertaken only by adults, and for which adult qualifications are required. See Restatement, 447*447 Torts 2d, § 283A, Comment c at 16 (1965). We find nothing in the record to support this conclusion. We think it judicially noticeable that skiing as a recreational sport, save for limited hazardous skiing activities, is engaged in by persons of all ages. Defendant's attempt to negotiate the lower end of the beginners' slope certainly cannot be characterized as a skiing activity that as a matter of law was hazardous to others and required that he be held to an adult standard of conduct. Williams v. Gilbert, 239 Ark. 935, 395 S.W.2d 333 (1965); Conway v. Tamborini, 68 Ill. App.2d 190, 215 N.E.2d 303, (App. Ct. 1966); Bixenman v. Hall, 251 Ind. 527, 242 N.E. 2d 837 (1968); Ranson v. Melegi, 18 Mich. App. 476, 171 N.W.2d 482 (Ct. App. 1969); 2 Harper and James, The Law of Torts, § 16.8 at 927 (1956); but see Neumann v. Shlansky, 58 Misc.2d 128, 294 N.Y.S.2d 628 (Cty. Ct. 1968), aff'd o.b. 63 Misc.2d 587, 312 N.Y.S.2d 951 (Sup. Ct. App. Term 1970), aff'd 36 A.D.2d 540, 318 N.Y.S.2d 925 (Sup. Ct. App. Div. Second Dept.)

    21

    We recognize that certain activities engaged in by minors are so potentially hazardous as to require that the minor be held to an adult standard of care. Driving a motor vehicle, operating a motor boat and hunting would ordinarily be so classified. However, as to the activities mentioned, New Jersey law requires that the minor must be licensed and must first demonstrate the requisite degree of adult competence. See annotation, "Age of minor operator of automobile or other motor-powered vehicle or craft as affecting his primary or contributory negligence," 97 A.L.R.2d 872 (1964).

    22

    We find that the applicable standard of care, correctly charged by the trial court, was that generally applicable to minors. Cf. Bush v. N.J. & N.Y. Transit Co., Inc., 30 N.J. 345, 353 (1959). See Parker v. Gunther, 122 Vt. 68, 164 A.2d 152 (1960); Johnson's Adm'rs v. Rutland R.R. Co., 93 Vt. 132, 106 A. 682 (1919). The required standard is that of a reasonable person of like age, intelligence[2] 448*448 and experience under like circumstances. 42 Am. Jur.2d, Infants, § 142 at 136 (1969); Restatement, Torts 2d, § 283A at 14 (1965).[3] Among those circumstances, of course, would be the nature of the activity in which the minor was engaged.

    23

    Most of the cases which apply this standard have been concerned with the minor's contributory negligence and not primary negligence. It has been suggested that a different standard might well apply where the minor's conduct causes injury to others. See Schulman, "The Standard of Care Required of Children," 37 Yale L.J. 618, 619 (1928). While this Court has not previously had occasion to consider this question, the Appellate Division has held that the principles enunciated by this Court regarding the contributory negligence of a child would also apply to a case where the primary negligence of a child is involved. Zuckerbrod v. Burch, 88 N.J. Super. 1, 7-8 (App. Div.), certif. den. 45 N.J. 593 (1965). We think that a rational basis exists for applying the same standard whether the issue involves a question of contributory negligence of a child, or primary negligence. Moreover, to hold otherwise would further complicate an already difficult area of tort law. The practicalities of the situation weigh heavily in favor of a single standard. See annotation, 97 A.L.R.2d 872, supra.

    24

    449*449 The Appellate Division, while it decided the case on the ground heretofore discussed, also criticized the trial court's application of the standard applicable to children to a 17-year-old person, pointing out that by N.J.S.A. 9:17B-1 et seq. (eff. January 1, 1973) every person in this State 18 or more years of age is deemed to be an adult. The Appellate Division could see little sense in holding an 18-year-old person to one standard of care and applying a lesser standard to one 17 years of age.

    25

    However, this problem will exist no matter where the line is drawn, whether it be at 10, 14 or 18 years. Since it has to be drawn somewhere, it is not unreasonable to fix it at the age of legal maturity — now 18 in this State — holding those under that age and capable of negligence to the standard of care required of a reasonable person of like age, intelligence and experience under like circumstances. Prosser, Torts, § 32 at 154-157 (4 Ed. 1971). This case, though, must be decided on the basis of the law prior to the effective date of the cited statute. Although there is no decided case in New Jersey fixing the age at which the standard of care governing children no longer controls, 18 years would appear to be the age at which a person should be held to adult responsibility in tort matters. Such is already the case with criminal responsibility — 18 being the age at which a person's criminal or anti-social behavior ceases to be regarded as juvenile delinquency and is treated as a criminal or quasi-criminal act, subject to the processes and sanctions normally applicable to adults. See N.J.S.A. 2A:4-43 (superceding N.J.S.A. 4-14). The trial court, therefore, charged the jury correctly as to the standard of care applicable to the 17-year-old defendant herein.

    26

    Finally, we consider plaintiff's contention that the jury verdict was against the weight of the evidence in that the uncontradicted evidence leads to the inescapable conclusion that the defendant was negligent. The Appellate Division, 450*450 since it disposed of the appeal on other grounds, did not rule on this contention. We have reviewed the proofs and conclude that a jury question as to defendant's negligence was presented and that the verdict returned was not against the weight of the evidence.

    27

    The judgment of the Appellate Division is reversed and the judgment of the trial court in favor of defendant is hereby reinstated.

    28

    SCHREIBER, J. (dissenting).

    29

    The standard of care now made generally applicable to minors does not square with reality, nor does its purported application justify the charge given.

    31
    I
    32

    The factual context of this case is set forth both in the Appellate Division and majority opinions. Conspicuous by their absence, however, are the trial court's numerous charges on the defendant's standard of care. In chronological order and intermittently, the trial court instructed the jury:

    33
    1. "The law says that as far as one under 18 is concerned — 18 or younger — we don't exact from him or her the same degree of care that we exact from an adult. We expect that we call an infant, which is anyone under 18 — we exact that degree of care which a reasonably prudent person of that age would have exercised under the same or similar circumstances. So, as I said to you, Steven Allen on this date was 17 years old, and the law exacts from him the standard of care that a 17 year old would exercise under the circumstances."
    34
    2. [Allen claimed he] "exercised that degree of care which a reasonably prudent person would or should have exercised."
    35
    3. [Defendant claims he] "exercised reasonable care as a 17-year-old beginner skier."
    36
    4. "Like any 17 year old or like any beginner skier or both — any beginning 17-year-old skier."
    37
    5. [The applicable standard is] "that degree of care that might reasonably be expected of a 17-year-old beginner skier."
    38
    451*451 6. "Perhaps I didn't charge as clearly as I thought that I had charged with reference to the duty of a 17 year old. I know that I used the term 17-year-old beginner, and that may lead to some confusion. Let me try to straighten it out. The law imposes on a 17 year old that standard of care that a 17 year old with the experience and background that this 17 year old had. It does not impose any higher or any lower degree of care than can reasonably be expected of a 17 year old with respect to the experience and background that Mr. Allen had in this case." [Emphasis supplied].
    39

    The majority accepts and approves the last, number 6, which was the trial court's supplemental charge. That simply stated that Allen had to exercise the same care as someone of the same age, experience and background. This charge does not equate with the standard adopted today by the majority, namely that Allen must act in accordance with the conduct of a reasonable person of the same age, intelligence and experience under the same circumstances.

    40

    The significance of the omission of intelligence in the charge becomes apparent when one recognizes the importance of that factor in fixing the required standard of care. Intelligence in this context relates to mental and judgmental capacity but not the exercise of that capacity. The distinction between exercise of mental or judgmental capacity and the capacity itself points to the objective-subjective elements in the test. Restatement, Torts 2d, § 283A, Comment b at 15 (1965). The defendant's conduct is to be measured against the conduct of the average or usual 17-year-old having the same judgmental capacity.

    41

    The crucial element in determining the standard of care to be established for infants centers about the judgmental capacity factor to comprehend, understand and perceive risk and danger. Age, experience, education, social background and intellectual capability have their respective places in the formation of judgmental capability. Whether the infant should or should not have acted or reacted in a certain manner depends on whether the theoretical average infant having the same capacity would have acted or reacted in the same fashion.

    42

    452*452 Case law has stressed the judgmental capacity factor. In Hellstern v. Smelowitz, 17 N.J. Super. 366, 378 (App. Div. 1952), Judge Jayne pointed out that consideration must be given to the child's "capacity to understand and avoid dangers to which it is exposed in the actual circumstances and situation under investigation." When this Court last considered the infant standard of care problem, Bush v. N.J. & N.Y. Transit Co., Inc., 30 N.J. 345 (1959), its analysis focused upon the "problem of the capacity of children of tender years to act negligently." Id. at 352.

    43

    The Restatement, Torts 2d, § 283A, advocates that a child's acts or omissions be compared to that of a reasonable person of the same age, experience, and intelligence.[1] The majority has apparently adopted this rule. Although the Restatement does not on its face view age, experience, and intelligence as simply some elements to determine judgmental capacity, in its discussion under Comment b, it recognizes that the fact finder must analyze those factors to determine judgmental capacity. The Restatement asks whether that hypothetical person with the same judgmental capacity would have acted or reacted in the same manner. The trial court's supplemental charge omitted any reference to the defendant's intellectual capacity and failed to clearly instruct the jury to measure the defendant's judgment against that of the average 17-year-old with the same intellectual capacity. The jury could not possibly have understood the subjective-objective test which the Court is adopting this day. So even assuming the correctness of the principle adopted by the majority, in view of the several conflicting instructions given to the jury, a new trial is warranted.

    45
    453*453 II
    46

    Presumably the majority is adhering to the principles enunciated in Bush v. N.J. & N.Y. Transit Co., Inc., supra. We held there that a child under age seven was rebuttably presumed to be incapable of negligence and the issue was not to be submitted to the jury in the absence of evidence "from which the jury could infer that the child was capable of understanding and avoiding the danger of injury involved in the circumstances of the case." 30 N.J. at 358. The party asserting the infant's negligence or contributory negligence bore the burden of proof.

    47

    Under the norm adopted this day where the negligence or contributory negligence of an infant between ages 7 and 18 is in issue, his activity or inactivity is to be measured by a reasonable person of the same age, intelligence and experience under similar circumstances unless the activities "are so potentially hazardous as to require that the minor be held to an adult standard of care." Ante at 447. There are several inherent difficulties in and inequitable consequences of this rule.

    48

    What criteria are to be employed by the jury to ascertain whether an activity is "potentially hazardous"? If a "potentially hazardous" activity is one which results in serious or permanent injury, then almost any activity might fall within that category. The injured person who has lost the sight of an eye resulting from a carelessly thrown dart, or stone, or firecracker, the death caused by a bicycle, or an individual seriously maimed due to an errant skier — all are indisputable proof of "potentially hazardous" activity. The majority prescribes no guideline except to imply that whenever licensing is required, the "potentially hazardous" test is met.[2] But the State does not impose a licensing 454*454 requirement on all "potentially hazardous" activities and whether one has a license or not is often not relevant in measuring conduct of a reasonably prudent person. Whether the driver of a automobile is licensed, for example, is not relevant in adjudicating if the automobile was being driven in a reasonable prudent manner. In Charbonneau v. MacRury, 84 N.H. 501, 153 A. 457, 464 (1931), the New Hampshire Supreme Court pointed out that by licensing drivers the State "has not undertaken to deal with the rule of care at all. It neither expressly or impliedly authorizes the trier of facts to disregard the legally ascertainable defects of the actor when material to the issue of his reasonable conduct, whether he be an adult or a minor. The authorized license is not a certificate of the physical perfection of the adult or of the mental maturity of the eligible minor."

    49

    To the injured party, his loss is the same irrespective of the wrongdoer's date of birth and it is inequitable and unjust that a minor should not be expected to exercise the same degree of care as the mythical reasonable and prudent person, at least when engaged in adult activities.[3] The majority's proposition unnecessarily sanctions the imposition of the burden of young people's hazards on innocent victims. Whenever an infant participates in activities in which adults normally engage, the infant should be held to the adult standard of care. Other courts have not hesitated to do so. Minors participating in these activities are mature enough to possess the "discretion and physical capacity consistent with ... the presumption of adult responsibility...." Nelson v. Arrowhead Freight Lines, 99 Utah 129, 104 P.2d 225, 228 (1940). See also, Dellwo v. Pearson, 259 Minn. 452, 107 N.W.2d 859 (1961) (motor boat operation); Neumann v. Shlansky, 58 Misc.2d 128, 294 455*455 N.Y.S.2d 628 (Cty. Ct. 1968), aff'd o.b. 63 Misc.2d 587, 312 N.Y.S.2d 951 (App. T. 1970), aff'd mem., 36 A.D.2d 540, 318 N.Y.S.2d 925 (1971) (golfing); Harrelson v. Whitehead, 236 Ark. 325, 365 S.W.2d 868 (1963) (motorcycle); Jackson v. McCuiston, 247 Ark. 862, 448 S.W.2d 33 (1969) (tractor-propelled stalk cutter); Adams v. Lopez, 75 N.M. 503, 407 P.2d 50 (1965) (motor scooter); Betzold v. Erickson, 35 Ill. App.2d 203, 182 N.E.2d 342 (App. Ct. 1962) (truck). Some jurisdictions recognize that children after a certain age are presumably capable of adult discretion. Lassiter v. Poss, 85 Ga. App. 785, 70 S.E.2d 411, 414 (Ct. App. 1952) (14); Nelson v. Arrowhead Freight Lines, supra (14); City of Austin v. Hoffman, 379 S.W.2d 103, 107 (Tex. Civ. App. 1964) (14).

    50

    Inherent in these approaches, either on the basis of activities or on age well below legal adulthood, is recognition of the realism and justness in applying the adult objective standard. In some measure this is probably due to the expansion of experiences and activity of minors, as well as the protection afforded all members of the family by comprehensive liability insurance policies.[4] Functionally, skiing is as much a sport for people over 18, as under 18.[5] It is no different than golf or cycling. And the hazards to the public whether operating a motor vehicle, power boat, motor scooter, bicycle, tractor or hitting a golf ball, or skiing are self-evident. Third persons may be exposed to serious injury because of the dangers which occur when the activity is not being performed in a reasonably prudent manner by a reasonably 456*456 prudent person and no sound reason exists for not holding the child defendant to the standard of the reasonably prudent adult. See 2 Harper & James, Law of Torts, § 16.8 at 927 (1956).

    52
    III
    53

    The 18-year-old line drawn today is contrary to policies enunciated by the legislature in regulating some aspects of the conduct of minors in relation to others. A 16-year-old juvenile may be tried as an adult for a homicide, treason, offense against the person in an aggressive, violent and willful manner, or for sale and distribution of narcotics. N.J.S.A. 2A:4-48. At age 16-1/2, a person may obtain a special learner's permit to drive a car so that a driver's license may be obtained at age 17. N.J.S.A. 39:3-13.1 and N.J.S.A. 39:3-13.4. At age 13 one may be licensed to operate a boat with an outboard motor. N.J.S.A. 12:7-34.7. Under this Court's rules a 17-year-old infant may file a verified petition. R. 4:26-2(b). The 18-year-old line is not consonant with the common law rule that at age 14 an infant is presumed to have the capacity to be guilty of criminal intent. Blackstone's Commentaries, Bk. IV, Sec. 23. The Restatement, Torts 2d, § 283A, Comment a refers to the fact that its rule "has seldom been applied to anyone over the age of sixteen" and "is commonly applied to children of tender years."

    54

    The 18-year demarcation line ignores the earlier mental development of young people. A few comments from experts in the field of child behavior demonstrate the point.

    55

    * * * [T]he middle-years [6 to 12 plus] child's growing mastery of symbols and his ever-broadening fund of general knowledge permit him to think in ways that come to approximate those of adults. Indeed, in some areas, the child may know a great deal more than his less educated parents and so be able to think more rationally than they * * *. [L. Stone and J. Church, Childhood and Adolescence at 412-413 (2d ed. 1968)].

    57
    * * * * * * * *
    58

    * * * Rodman [in "Children Under the Law," 43 Harv. Ed. Rev. 487, 489 (1973)] notes that the law's placement of the dividing 457*457 line between legal minority and adult status at the age of eighteen or twenty-one years is "artificial and simplistic" because it obscures the dramatic differences among children of different ages and the striking similarities between older children and adults. That observation seems so sound and obvious that it raises the question of how such differences — and also the resemblance between older children and adults — have come to be obscured? [Skolnick, "The Limits of Childhood: Conceptions of Child Development and Social Context," in Children and the Law (Symposium), 39 Law & Contemp. Prob. 38, 43 (1975)].

    59

    Selection of the 16th year is a more reasonable age at which to draw the line for the individual to be held to an adult standard of care irrespective of the activity.

    61
    IV
    62

    I would adopt a rule that an infant 16 years or over would be held to an adult standard of care and that an infant between ages 7 and 16 would be rebuttably presumed to have the duty to act, while engaged in an adult activity, that is, one in which adults normally or usually engage, as a reasonably prudent person, but that, upon a showing that adult judgmental capacity for that type of activity is not warranted, the subjective-objective criteria of the Restatement and adopted by the majority be applied.[6] Application of this rule recognizes the difference between negligence and contributory negligence since the required judgmental capacity in foreseeing and avoiding the hazards created by others may be substantially greater than that to be comprehended by 458*458 one's own acts.[7] See Zuckerbrod v. Burch, 88 N.J. Super. 1, 8 (App. Div. 1965); Note, supra fn. 4, 1962 Duke L.J. at 142-143; 2 Harper & James, supra, Law of Torts, § 16.8 at 40 (Supp. 1968); Roberts v. Ring, 143 Minn. 151, 173 N.W. 437 (1919). If the infant between ages 7 and 16 is found not to have been occupied in an adult activity, the Restatement rule adopted by the majority would be applicable. As to those 16 or over I would apply the adult standard.

    63

    I would affirm the judgment of the Appellate Division.

    64

    For reversal and reinstatement — Chief Justice HUGHES, Justices SULLIVAN and PASHMAN and Judges CONFORD, KOLOVSKY and CARTON — 6.

    65

    For affirmance — Justice SCHREIBER — 1.

    67

    [1] We were advised at oral argument that plaintiff has also filed suit in Vermont against the owner of the ski resort.

    69

    [2] Although the charge to the jury in this case omitted the word intelligence, we do not believe the defendant was thereby prejudiced in the light of the charge as a whole and the facts of the case. There was no objection to the charge based on this omission, nor did the Appellate Division notice it. See 134 N.J. Super., supra, at 104.

    71

    [3] The Restatement Comment states that the rule in § 283A has seldom been applied to anyone over the age of 16 but that no definite line can be drawn.

    73

    [1] The Restatement reads as follows:

    74

    § 283 A. Children.

    75

    If the actor is a child, the standard of conduct to which he must conform to avoid being negligent is that of a reasonable person of like age, intelligence, and experience under like circumstances.

    77

    [2] No license is required for a motorized bike, but a ten-speed bike can be pedaled at 25 miles per hour on a flat road. The U.S. Consumer Product Safety Commission reports that there are 500 to 1000 fatalities and about 500,000 permanently crippled each year from bicycle mishaps.

    79

    [3] Dean Shulman acknowledged that "in some situations a minor is fully as competent as a person over twenty-one and should be held to the same standard of conduct." Shulman, "The Standard of Care Required of Children," 37 Yale L.J. 618 (1928).

    81

    [4] Payments for child responsibilities are made by adults or insurance companies under policies paid for by adults. James, "Accident Liability Reconsidered: The Impact of Liability Insurance," 57 Yale L.J. 549, 554-556 (1948). In Note, "Torts: Application of Adult Standard of Care to Minor Motor Vehicle Operators," 1962 Duke L.J. 138, 141 it is stated that "Minors are seldom sued in the absence of insurance, because they usually lack sufficient financial resources to make suit worthwhile."

    83

    [5] Sullivan, The Complete Book of Family Skiing (1966).

    85

    [6] Professor Bohlen suggests that where harm has been intended the infant should be held "to exactly the same extent as for his failure to conform to those standards of conduct which are obligatory upon normal persons." "Liability in Torts of Infants and Insane Persons," 23 Mich. L. Rev. 9, 32 (1924). See Note, "A Proposal for a Modified Standard of Care for the Infant Engaged in an Adult Activity," 42 Ind. L.J. 405 (1967).

    87

    [7] Shulman, supra fn. 3 commented:

    88

    The standard of conduct to which an infant is to be held when his own liability is in question may properly be quite different from that to which he is to be held when he seeks to recover from an admittedly negligent defendant. It is apparent that different considerations may be involved in these several types of cases. There is a strong policy in favor of protecting children from losses attributable to their immaturity. It would be quite plausible, therefore, for a court to be more lenient toward children whose injuries are attributable, not only to their immaturity, but also to conceded tortious conduct on the part of the defendant, than toward children who are the sole responsible causes of injury to others. [37 Yale L.J. at 619].

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

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

    1
    116 Cal.App.2d 310 (1953)
    3
    FLORA ELLIS, Appellant,
    v.
    SALVATORE D'ANGELO, a Minor, etc., et al., Respondents.
    5
    Civ. No. 15173.
    7

    California Court of Appeals. First Dist., Div. Two.

    9
    Feb. 27, 1953.
    11

    Shirley, Saroyan, Calvert & Sullivan for Appellant.

    13

    Alexander, Bacon & Mundhenk and Herbert Chamberlin for Respondents.

    15

    DOOLING, J.

    17

    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 4 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. 313*313

    19

    The two counts against the minor will be discussed together. [1] 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."

    21

    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 Civil Code, section 41, above quoted by providing that a minor or person of 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.

    23

    [2] It is generally stated in 27 American Jurisprudence, Infants, section 90, pages 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 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. ..."

    25

    [3] "A child of tender years may be held liable for acts 314*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."

    27

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

    29

    "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. ..."

    31

    "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."

    33

    [4] The same qualification last quoted from Prosser is stated in 27 American Jurisprudence, section 91, pages 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, 315*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."

    35

    See, also, 1 Cooley on Torts, 4th edition, section 64, pages 186-187, section 66, page 194 et seq.; Harper on Torts, section 282, pages 616-617.

    37

    [5] 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. [6] 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.

    39

    [7] We may take it as settled in the case of infants as stated in the quotation from American Jurisprudence 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, said at pages 506-507 [182 P.2d 234, 172 A.L.R. 883]: "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, 41, pp. 604-605.)

    41

    [8] So far as the count charging the infant defendant with negligence is concerned the question presented to the court is whether as a matter of common knowledge we can say that a child 4 years of age lacks the mental capacity 316*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 4-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], the court said of a 3-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 5-year-old child.

    43

    Appellant cites Baugh v. Beatty, 91 Cal.App.2d 786, 793 [205 P.2d 671], where the court said of a 4-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, 41 Cal.App. 776 [183 P. 241], which involved a 10-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 and 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.

    45

    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 4-year-old has the mental capacity for negligent conduct. It is stated in a note collecting the cases from other jurisdictions in 107 American Law Reports 102 et seq.: "In a majority of the cases it seems that the courts have regarded a child between the ages of 4 and 5 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 4-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. 317*317 Harger, 84 Cal.App.2d 361 [191 P.2d 25], dealing with a 5- year-old child are not helpful to us.

    47

    [9] When it comes to the count charging battery a very different question is presented. We certainly cannot say that a 4-year-old child is incapable of intending the violent or the harmful striking of another. Whether a 4-year-old child had such intent presents a fact question; [10] and in view of section 41 of the Civil Code which makes the recognition of the wrongful 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.

    49

    [11] 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.

    51

    [12] 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 the 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]; Rocca v. Steinmetz, 61 Cal.App. 102 [214 P. 257].)

    53

    [13] Section 316, Restatement of Torts states the rule:

    55

    "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 himself as to create an unreasonable risk of bodily harm to them, if the parent"

    57

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

    59

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

    61

    [14] In a note in 155 American Law Reports at page 87 318*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."

    63

    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, 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, 50 Am.St.Rep. 381], where two young boys were in the habit of shooting guns and shouting at passersby and the parents with knowledge took no care to prevent their conduct; Johnson v. Glidden, 11 S.D. 237 [76 N.W. 933, 74 Am.St.Rep. 795], where with knowledge that he was using it negligently the parents permitted their son to continue in possession of an air gun.

    65

    Most nearly in point is Zuckerberg v. Munzer, 95 N.Y.S.2d 856; affd. 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 of Torts, section 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 the child's propensity toward such conduct."

    67

    See, also, Prosser on Torts 914; Shearman & Redfield on Negligence, rev. ed. Zipp, 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 Okla. 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]; 319*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. 244 [139 S.E. 577]; Mendola v. Sambol, 166 Pa.Super. 351 [71 A.2d 827].

    69

    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, 56 Am.Rep. 101]; Figoni 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 11-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." 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, 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.

    71

    Figoni v. Guisti, supra, 43 Cal.App. 606, 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 anyone." (43 Cal.App. 612.)

    73

    Hudson v. Von Hamm, supra, 85 Cal.App. 323 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 at page 326 quoted Shearman and 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 320*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.

    75

    In Weber v. Pinyan, supra, 9 Cal.2d 226 at page 235 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.

    77

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

    79

    Nourse, P. J., and Goodell, J., concurred.

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