Strong v. Allen

1989 OK 17, 768 P.2d 369, 1989 Okla. LEXIS 27, 1989 WL 8318

• Court: Supreme Court of Oklahoma
• Decided: February 7, 1989
• Docket: 67057
• Status: Published

Opinions

HODGES, Justice.

The issue presented is whether the jury in this action rendered inconsistent verdicts requiring a new trial. The Court of Appeals upheld the verdicts finding no inconsistency. We now grant certiorari, vacate the Court of Appeals opinion and remand the plaintiff’s claim on behalf of his child for a new trial.

This negligence action was brought by the father of a two-year-old child to recover damages from the defendant apartment owners. The child sustained injuries to his hand from an exposed chain and sprocket mechanism at the back of a coin-operated clothes dryer in the laundry room of the apartment complex where the child’s family lived.

The accident occurred while the father, Keith Strong, was unloading clothes from one machine into another. His two-year-old son, Derek Strong, ventured into a gap between two commercial dryers. The child then entangled his right hand in an exposed chain and sprocket mechanism at the back of the dryer causing crushing and laceration of his fingers.

The father individually sought $2,936.24 for the medical expenses incurred for treatment of the child’s injury. As guardian, the father claimed $30,000 for the child’s pain and suffering, permanent disability and future medical expenses in addition to $10,000 in exemplary damages. Defendants asserted the father’s lax supervision as a contributory negligence defense.

The jury found the father 60% negligent and defendants 40% negligent as to the father’s individual claim. Under Oklahoma’s modified form of comparative negligence, the father’s claim was thus barred. See Okla.Stat. tit. 23, § 13 (1981). The defendants also prevailed with regard to the child’s claims for compensatory and exemplary damages. No percentage of fault was assessed to the child’s claims.

Plaintiff appealed arguing that the jury verdicts were inconsistent because defendants could not be 40% at fault with regard to the father’s individual claim and faultless as to the child’s claims arising out of the same injury. The Court of Appeals affirmed the verdict in an unpublished opinion and attempted to resolve the inconsistency by concluding: “The jury simply believed that the proximate cause of the child’s injuries was attributable to the parent’s lax supervision rather than to the exposed chain and sprocket mechanism.”

A longstanding rule states that a child of tender years cannot be guilty of contributory negligence. See Hampton v. Hammons, 743 P.2d 1053, 1061 (Okla.1987); Connor v. Houtman, 350 P.2d 311, 313 (Okla.1960). It is also well-settled that the negligence of a parent may not be imputed to a child of tender years to bar or reduce the child’s recovery against a third party. Hostick v. Hall, 386 P.2d 758, 761-62 (Okla.1963). A parent’s individual claim for medical expenses resulting from the child’s injury may, however, be reduced or barred by the parent’s negligence. Brady v. Rivella Developers, Inc., 424 So.2d 1104, 1107 (La.Ct.App.1982). It was therefore proper for the jury to assess percentages of fault with regard to the father’s individual claim. Yet the clearly inconsistent verdicts rendered in this action appear to have resulted from the father’s negligence being impermissibly imputed to his son to bar recovery on the child’s claims.

The attempt by the Court of Appeals to resolve the inconsistency by describing the verdict as a conclusion that only the father’s negligence caused the injury is unsupported by either the record or precedent. Nothing in the record indicates the jury believed the proximate cause of the injury to be solely the father’s lax supervision. The jury’s apportionment of fault as to the father’s individual claim demonstrated the jury’s belief that the accident was 40% attributable to defendants’ negligence. This conclusion required the finding of each element of negligence including the element of causation.

Nor could the father’s negligence be accurately described as a supervening cause of the injury. As this Court has noted:

A true supervening cause that will operate effectively to insulate the original actor from liability must meet a three-prong test. It must be (1) independent of the original act, (2) adequate of itself to bring about the result and (3) one whose occurrence was not reasonably forseeable. Unless these characteristics are met, the chain of causation which extends from the original act to the injury is not broken.

Thompson v. Presbyterian Hospital, Inc., 652 P.2d 260, 264 (Okla.1982) (footnote omitted).

The father’s negligence fails each of these three prongs. First, his lax supervision was not independent of the dangerous condition presented by the exposed mechanism. Second, the father’s negligence was not adequate of itself to bring about the injury without the presence of the dangerous condition. Finally, it was reasonably forseeable that lax supervision could contribute to a small child’s venture into the opening between the dryers where he was injured by the exposed mechanism. The father’s negligence cannot be considered a supervening cause of this child’s injury.

The only rational explanation for the inconsistent verdicts is that the jury must have imputed the father’s negligence to the child to preclude recovery. A new trial is required on the child’s claims for compensatory and exemplary damages. The jury’s verdict as to the father’s individual claim for medical expenses is affirmed.

CERTIORARI GRANTED; COURT OF APPEALS OPINION VACATED; CAUSE REMANDED IN PART FOR NEW TRIAL.

HARGRAVE, C.J., and LAVENDER, DOOLIN, ALMA WILSON and KAUGER, JJ., concur. SUMMERS, J., concurs in part and dissents in part. OPALA, V.C.J., and SIMMS, J., dissent.