Mahon v. Heim

332 A.2d 69, 165 Conn. 251, 1973 Conn. LEXIS 734

Opinions

House, C. J.

The plaintiff, John J. Mahon, administrator of the estate of Richard Heim, brought this action seeking to recover damages for the death of Richard Heim, allegedly caused by the negligence of the defendants, his brother Timothy C. Heim, hereinafter called the defendant, and Marshall E. Heim, his father. In their answer the defendants denied being negligent and alleged contributory negligence on the part of the plaintiff’s decedent. The jury returned a verdict for the defendants, which the plaintiff moved to have set aside on the ground that it was contrary to law and against the evidence. From the court’s denial of the motion to set aside the verdict and from the judgment rendered thereon, the plaintiff has appealed to this court.

In his first two assignments of error, the plaintiff contends that the court erred in finding facts stated in eight paragraphs of the finding without evidence. Since these claims of error have not been briefed or argued, they are treated as abandoned. State v. Grayton, 163 Conn. 104, 109, 302 A.2d 246. The plaintiff’s remaining assignments of error attack the court’s instructions to the jury, including claims of error in the refusal of the court to charge as re quested and in the court’s charge concerning the standard of care to be applied to the conduct of the defendant, a minor.

“Claims of error addressed to the charge are to be tested by the claims of proof as they appear in the finding. Practice Book §635; DePaola v. Seamour, 163 Conn. 246, 249, 303 A.2d 737.” Conlon v. G. Fox & Co., 165 Conn. 106, 328 A.2d 708. The following portions of the finding are pertinent to a consideration of the plaintiff’s attack on the charge: On August 6, 1970, the defendant, aged seventeen, Bichard Heim, aged sixteen, and a friend, John Warren, were going to pump water from Snipsic Lake into a milk tank truck in order to fill the Heim family swimming pool. The milk tank truck was owned by the defendant Marshall Heim, the father of the defendant and Bichard, and this was a procedure that the family had followed before. Bichard, accompanied by Warren, drove a pickup truck containing the pumping equipment to the lake shore. The defendant drove the tank truck and when he reached the entrance to a private road, it was his intention to turn the truck and back it down to the lake shore. The road to the lake shore was narrow and winding, and sloped downward. As the defendant backed the truck, he experienced some difficulty and Bichard came up to give him directions. As the truck continued backing, Bichard told him he was going to hit a tree. The defendant then stopped the truck, shifted into first gear and started forward but could not make headway up the hill; he then took his foot off the gas pedal, but before he was able to apply the brakes, the truck rolled back, pinning Bichard between the truck and a tree, causing fatal injuries.

It was the plaintiff’s claim that Richard’s death was caused by the negligence of the defendant in that he failed to keep a proper lookout, in that he failed to have his vehicle under proper control, in that he allowed the truck to roll back when he knew, or in the exercise of reasonable care should have known, that the truck was in close proximity to Richard and the tree, and in that he failed to stop or turn the truck to avoid hitting Richard.

In the course of its charge on negligence, the court stated: “As I recall, the evidence disclosed that Timothy was seventeen years old at the time of the accident, and his brother Richard was sixteen years old. Of course, one who has not reached his majority may be as capable as an adult, particularly when engaging in adult activities, such as the driving of a motor vehicle on or off a public highway. However, in the case of a boy you must remember that reasonable care is reasonable care for a young man of similar age, judgment and experience, under the circumstances, and you must take all of the circumstances into consideration.”

In so charging the jury the court correctly stated the settled law in this state as recently repeated in Overlock v. Ruedemann, 147 Conn. 649, 654, 165 A.2d 335, in which this court, speaking by Baldwin, C. J., noted that “in determining the negligence of a minor the law applies to him a standard of conduct which will vary according to his age, judgment and experience,” citing Rappa v. Connecticut Co., 96 Conn. 285, 286, 114 A. 81, Colligan v. Reilly, 129 Conn. 26, 29, 26 A.2d 231, and Magaraci v. Santa Marie, 130 Conn. 323, 330, 33 A.2d 424; see also Santor v. Balnis, 151 Conn. 434, 436, 199 A.2d 2; Greene v. DiFazio, 148 Conn. 419, 424, 171 A.2d 411; Marfyak v. New England Transportation Co., 120 Conn. 46, 50, 179 A. 9, with the many eases cited therein on page 50. This accords with the generally accepted rule as summarized in Eestatement (Second), 2 Torts § 283 A, as follows: “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.”

While agreeing that the charge as given was that applicable in ordinary circumstances, in his request to charge, in his exception to the charge and in his brief the plaintiff has argued that the trial court committed error in not charging that the rule is otherwise with respect to minor operators of motor vehicles and that a minor engaging in such an adult activity as the operation of a motor vehicle should be held to the same standard of care as an adult. It is his contention that a minor’s conduct should be governed by the same standard as that of an adult whenever the minor undertakes an activity usually engaged in by adults and which could seriously endanger others and himself if the care exercised should fail to meet the standard of care which would be exercised by a reasonably prudent adult in the same or similar circumstances. Such a change in or exception to the settled common-law rule has been adopted with various modifications in some jurisdictions. See the annotation in 97 A.L.R.2d 872, and cases cited, and comment c in Eestatement (Second), 2 Torts § 283 A.

The adoption of such a new standard of care applicable to minors would effect a drastic change in the law of negligence as it has been long established in this state. Aside from the ease-by-case uncertainty and the problem of determining whether a given activity was an “adult activity,” the same standard being applicable to cases both of negligence and contributory negligence, minor plaintiffs would to a large degree be deprived of the protection which the law has through the years sought to afford to the handicapped, the young and the immature. On the other hand, in this machine and automotive age weighty considerations of social policy furnish a strong argument for holding to an. adult standard of care minors who, despite their immaturity, undertake to operate potentially destructive mechanisms.

We note that the legislature has already addressed itself to some phases of the problem. The age of majority has been reduced to eighteen by § 1 of Public Act No. 127, adopted by the 1972 February Session of the General Assembly (General Statutes § 1-ld), which specifically provides that “any peison eighteen years of age or over shall be an adult for all purposes whatsoever and have the same legal capacity, rights, powers, privileges, duties, liabilities and responsibilities as persons heretofore had at twenty-one years of age, and ‘age of majority’ shall be deemed to be eighteen years.” On the other hand, in the field of statutory negligence where it is settled law that the violation of a statute is negligence per se the General Assembly has recognized the application of this legal principle to statutory violations by minors but has set the age of sixteen as the cutoff age for the application of the principle to the conduct of minors, leaving it as a question of fact whether a minor under sixteen years of age was in the exercise of due care when he violated a statutory duty.¹ See Worden v. Francis, 148 Conn. 459, 464, 172 A.2d 196; Santor v. Balnis, supra.

As we have indicated, a strong policy argument can he advanced for the adoption of an exception to the standard of care applicable to the conduct of minors, which would hold them to the same standard of care required of adults, when they engage in certain specified activities which experience has demonstrated to be potentially highly hazardous not only to others but to themselves. Such activities might, for example, well include the operation of motor-driven vehicles and boats and the use of firearms and explosives. The adoption of such a policy and specific exception is, however, one peculiarly appropriate for further legislative consideration and action rather than for implementation by judicial fiat.

In this case, this attacked portion of the charge to the jury with respect to the standard to be applied to the conduct of the two minors involved in the accident under consideration was “correct in law, adapted to the issues and sufficient to guide the jury.” Moriarty v. Lippe, 162 Conn. 371, 389, 294 A.2d 326; Amato v. Sawicki, 159 Conn. 490, 494, 271 A.2d 80.

Another assignment of error pressed by the plaintiff is that the eourt erred in refusing to include in its charge two instructions which he had requested bearing on the issue of contributory negligence. The substance of the first of these requests was to the effect that on the evidence the jury could find that the position of Richard at the time of the accident could be a mere condition and not a proximate cause of his death. The second request was for an instruction that “[i]f the decedent’s injuries were not the normal result of his position, whether on the bumper or on the ground, then his negligence, if any, is not a proximate cause of his death.” As to the first request, there is no suggestion that the court did not adequately and properly charge on the standard requisites of affirmative proof of proximate cause and the record discloses no special circumstance which would require any additional charge as to what would not be a proximate cause. The second request is obviously not a correct statement of the law because negligence may bar recovery or give rise to liability if it is a proximate cause of the result in question whether or not such a result would be “the normal result.” We find no merit to these assignments of error.

The remaining assignments of error require but little discussion. One is that the court improperly stated to the jury that “[t]here are such things as pure accidents for which no one is to blame.” This statement was immediately followed by an instruction with respect to the burden of proof as to negligence and proximate cause. To make the comment was well within the court’s discretion in the circumstances of the case as disclosed by the finding. Robinson v. Faulkner, 163 Conn. 365, 370, 306 A.2d 857.

The final assignment of error is that the court erred in charging the jury with respect to certain testimony of a witness who was a sister of both the defendant and Eiehard. She testified that on the night of the accident, after returning from the hospital, the defendant told her “that the accident was his fault, it shouldn’t have happened.” With respect to this testimony, the court charged the jury: “This language, if you find it was used by [the defendant] Timothy Heim, must be considered by you with a great deal of care, because words are very easy to misuse. When you come to weigh this testimony you must determine what was meant and just how far you will be justified in finding from the use of the words, if you do find they were used, that the defendant was legally liable under the law applying to this particular case. Such evidence is circumstantial in nature, and its probative value must depend upon all the other evidence and claims and surrounding circumstances.” The plaintiff claims that the court erred in thus cautioning the jury but in the context in which this admonition to the jury was given we do not find any error. Just prior to this admonition, the court had charged the jury at length on the law concerning admissions. Also, as the finding discloses, after the witness had testified as indicated that her brother Timothy (the defendant) felt responsible for the death of their brother she was asked: “You mean you feel he felt responsible just because he happened to be the driver when this tragedy occurred,” and her response to this inquiry was, “Yes.” In the circumstances and in the context in which the court’s caution to the jury was given, we do not find it to be an improper instruction.

There is no error.

In this opinion Shapiro, Loiselle and MacDonald, Js., concurred.

Footnotes

1

“[General Statutes] See. 52-217. violation of statute by minor. In. all aetions for recovery of damages for injury to person or property, in which the plaintiff or defendant was a minor under sixteen years of age at the time sueh cause of action arose, it shall be a question of fact to be submitted to the judge or jury to determine whether or not such minor plaintiff or minor defendant was in the exercise of due care, when there is a violation of statutory duty by such plaintiff or defendant.”