Dennis Clark, a Minor by William H. Clark, His Father and Next Friend v. Circus--Circus, Inc., a Nevada Corporation

525 F.2d 1328, 1975 U.S. App. LEXIS 11905

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 17, 1975
• Docket: 74--1321
• Status: Published

Opinions

OPINION

Before HUFSTEDLER and TRASK, Circuit .Judges, and HILL,* District Judge.

HUFSTEDLER, Circuit Judge:

The Clarks on behalf of themselves and their minor child, Dennis, appeal from a judgment in favor of Circus-Circus, Inc. (“Circus”), entered after a jury verdict in their action for damages for personal injuries suffered by Dennis. Jurisdiction was based on diversity.

At the time of the accident Dennis was 4 years, 5 months, and 26 days old. He struck a chain suspended about 4 feet from the ground as he was running towards his mother in Circus’s parking lot in Nevada. He struck his mouth, thereby sustaining the injuries upon which the complaint is founded.

The principal claim of error is the district court’s instruction to the jury permitting it to find that Dennis was contributorily negligent.¹ The instruction was a slightly modified version .of an instruction approved in Quillian v. Mathews (1970) 86 Nev. 200, 467 P.2d 111.

We agree that Nevada law controls, and the only Nevada case which we have been able to discover that deals with contributory negligence of children is Quillian. However, we believe that the district court misread Quillian. That case involved personal injuries sustained by a six-year old child when she darted in front of a car as she was crossing an arterial four-lane city street. The child appellant argued that a child of six could not be contributorily negligent. In rejecting the claim, the Nevada court reviewed the varying approaches to the question of contributory negligence of children, and adopted the following test:

“[T]he question of contributory negligence of a child is always a fact question for the jury upon proper instructions concerning the child’s special standard of care, unless, of course, reasonable minds could come to but one conclusion from the evidence.

The California (Courtell v. McEachen, 51 Cal.2d 448, 334 P.2d 870 (1959)) and Utah (Mann v. Fairbourn, 12 Utah 2d 342, 366 P.2d 603 (1961)) cases are illustrative. Professor Prosser states: ‘The great majority of the courts have rejected any such fixed and arbitrary rules of delimitation, and have held that children well under the age of seven can be capable of some negligent conduct. Undoubtedly there is an irreducible minimum, probably somewhere in the neighborhood of four years of age, but it ought not be fixed by rules laid down in advance without regard to the particular case. As the age decreases, there are simply fewer possibilities of negligence, until finally, at some indeterminate point, there are none at all.’ Prosser on Torts, pp. 158-159 (3d ed. 1964). Accord: Rest, of Torts, Second, Sec. 283a.

In our opinion it is not advisable to establish a fixed and arbitrary rule. We prefer to treat the issue of contributory negligence of a child as a fact issue for the jury upon proper instructions unless reasonable minds could come to but one conclusion from the evidence. This allows for a degree of flexibility in the handling of each case as it comes before the trial court. That court may decide initially whether reasonable minds could believe that the particular child has the capacity to exercise that degree of care expected of children of the same age, experience and intelligence in similar circumstances. Should the court determine that the child has such capacity, the jury then is to decide whether such care was exercised in the particular case. Should the court rule otherwise, then, of course, the issue of contributory fault would not be submitted for jury resolution. This procedure was followed in the case at hand, and we approve it. The evidence supports the court’s conclusion that the plaintiff-child possessed the capacity of a normal six year old. Indeed, the appellants do not contend otherwise.”

(467 P.2d at 113. Emphasis added.)

Courtell v. McEachen, Prosser and the Restatement of Torts, Second, relied on by Quillian, agree that young children over 5 years of age can be capable of contributory negligence, and, unless there is some showing of incapacity over and above their age, the question whether the particular child under the circumstances was contributorily negligent is a matter for the jury. However, the same authorities also recognize that children in the vicinity of 4 years old do not have the capacity of being contributorily negligent.² The California authorities, in line with Courtell, which have dealt with children under 5 years old uniformly have held that such children are incapable of contributory negligence. (E. g., Crane v. Smith (1943) 23 Cal.2d 288, 144 P.2d 356 (3 year old); Morningred v. Golden State Co. (2d Dist. 1961) 196 Cal.App.2d 130, 16 Cal.Rptr. 219 (4 year old); Christian v. Goodwin (2d Dist. 1961) 188 Cal.App.2d 650, 10 Cal.Rptr. 507 (4 years 7 months) [Christian collects authorities nationwide for the proposition that children between 4 and 5 years old are incapable of contributory negligence]; Ellis v. D’Angelo (1st Dist. 1953) 116 Cal.App.2d 310, 253 P.2d 675 (4 year old); see also Fowler v. Seaton (1964) 61 Cal.2d 681, 687-88, 39 Cal.Rptr. 881, 394 P.2d 697.

The holding of Quillian, of course, does not apply to Dennis. But we think the dictum is controlling for want of any clearer authority from Nevada: A child of Dennis’s age cannot be contributorily negligent because he is “incapable of realizing that his heedless conduct may foreseeably lead to [his] injury.” (Ellis v. D’Angelo, supra, 116 Cal.App.2d at 315, 253 P.2d at 677.) The district court should have taken judicial notice that a 4V2 year old child running to his mother could not be held responsible for his acts when he ran into the chain. (See Mann v. Fairbourn, supra, 12 Utah 2d at 346, 366 P.2d at 606.) The district court erred in concluding that the child was capable of contributory negligence and thereafter in submitting the question of contributory negligence to the jury.

We do not think there is enough merit in the other two contentions to require comment.

Reversed and remanded.

1 . “A child is not held to the same standard of conduct as an adult and is only required to exercise that degree of care which ordinarily would be exercised by children of the same age, intelligence and experience. There is no precise age at which, as a matter of law, a child comes to be held accountable for his own negligent actions by the same standard as applies to adults. It is for you to determine whether or not the conduct of Dennis Clark was or was not such as might reasonably have been expected from a child of the same age.. If you determine that it was, then his conduct was not negligent. If you find that it was not, then his conduct was negligent.

“If you find by a preponderance of the evidence that Dennis Clark did not exercise the amount of care that an ordinary child of the same age and experience and intelligence would have used in the same or similar circumstances for his own safety, if you find that Dennis Clark did not use his senses of sight and hearing as an ordinary child of the same age, experience and intelligence would have done to appreciate and avoid the danger under like or similar circumstances, and that he thereby contributed to his own injuries, then your verdict will be for the defendant.”

2 . Courtell v. McEachen, supra, 51 Cal.2d at 454, 334 P.2d at 873: “The questions whether a child was capable of exercising care to avoid the particular danger encountered and whether, if so, the child failed to exercise due care, thereby contributing to the injury, are normally for the trier of fact to determine. , . . [C]ourts have rejected the theory that a child of plaintiffs age, namely, between five and six, is incapable of contributory negligence as a matter of law. [citation omitted]”

Mann v. Fairbaum, supra, 12 Utah 2d at 346, 366 P.2d at 606‘ “ ‘The question as to whether a child’s capacity is such that it may be chargeable with contributory negligence is a question of fact for the jury, unless so young and immature as to require the court to judicially know that it could not contribute to its own injury or be responsible for its acts, or so old and mature that the court must know that, though an infant, yet it is responsible.’ ”

Restatement of Torts, Second, § 283A, comment b: “Undoubtedly, there is a minimum age, probably somewhere in the vicinity of four years, below which negligence can never be found. . . .”