943 F.2d 147 (1st Cir. 1991), 90-1743, Lash v. Cutts

Docket Nº:90-1743.
Citation:943 F.2d 147
Party Name:Caleb LASH, et al., Plaintiffs, Appellants, v. Richard CUTTS, Defendant, Appellee.
Case Date:September 05, 1991
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

Page 147

943 F.2d 147 (1st Cir. 1991)

Caleb LASH, et al., Plaintiffs, Appellants,


Richard CUTTS, Defendant, Appellee.

No. 90-1743.

United States Court of Appeals, First Circuit

September 5, 1991

Heard April 1, 1991.

Page 148

William H. Welte with whom Joseph M. Cloutier & Associates, Rockport, Me., was on brief, for plaintiffs, appellants.

James Brett Main with whom Platz & Thompson, P.A., Lewiston, Me., was on brief, for defendant, appellee.

Before CAMPBELL, SELYA and CYR, Circuit Judges.

CYR, Circuit Judge.

On the morning of June 1, 1986, five-year-old Caleb Lash asked his mother if he could accompany a neighbor's son to a school playground located two house lots from the Lash residence in Waldoboro, Maine. Caleb previously had not been allowed to leave home except under the supervision of an older family member. Mrs. Lash later received a telephone call from the neighbor, informing her that Caleb was not at the playground but was visiting at the neighbor's house. Caleb was seriously injured when he rode his tricycle down the steep driveway leading from the neighbor's house into the public road, where he was struck by a vehicle driven by Richard Cutts.

Caleb and his mother filed a diversity action in the United States District Court for the District of Maine, demanding damages against Cutts, a Vermont resident, for negligence and negligent infliction of emotional distress. Cutts answered, pleading comparative negligence on the part of Caleb and his mother as an affirmative defense and interposing a counterclaim for contribution against Mrs. Lash for alleged negligent supervision of Caleb. At trial, plaintiffs introduced evidence that the Cutts vehicle had been travelling in excess of the posted speed limit at the time of the collision. Cutts sought to establish that Caleb had violated a motor vehicle regulation requiring that a vehicle exiting from a driveway yield to a vehicle travelling on a primary road.

Page 149

Although the jury determined that all parties were negligent, Cutts successfully established that Mrs. Lash had been negligent in failing to supervise Caleb, that her negligence should be imputed to Caleb, and that the combined negligence of Mrs. Lash and Caleb exceeded the negligence of Cutts, thereby precluding any recovery by Caleb. Plaintiffs filed a motion for new trial, on the ground that the jury charge misstated applicable Maine law in two material respects. The district court denied the motion for new trial, and plaintiffs appealed.



  1. Imputation of Parental Negligence to a Child

    The plaintiffs challenge the following jury instruction as a misstatement of Maine law on the imputation of parental negligence to a child:

    [A] parent has a duty to exercise reasonable care to supervise his or her child. A parent also has a duty to maintain his or her child's bicycle. As I have already explained, these duties are based on what would be expected of a reasonable person under the circumstances.

    Thus, if a parent is negligent in failing to supervise his or her child, or maintain his or her child's bicycle, then the negligence of the parent may be imputed to the child and may reduce the child's recovery against the defendant.

    We will affirm the district court judgment unless we determine that the challenged instruction, to which timely objection was taken pursuant to Federal Rule of Civil Procedure 51, misstated applicable Maine law and that a correct instruction would have resulted in a different outcome. See Elwood v. Pina, 815 F.2d 173, 177 (1st Cir.1987).

    At common law, the imputation of parental contributory negligence to an injured child was based on the theory that the special parent-child relationship amounted to an agency, requiring reasonable parental control over the actions of the child. See W. Page Keeton, et al., Prosser and Keeton on the Law of Torts § 74, at 530-32 (5th ed. 1984). Although in some circumstances both parent and child could be found contributorily negligent at common law, see, e.g., Cadman v. White, 296 Mass. 117, 5 N.E.2d 19 (1936), as plaintiffs analyze Day v. Cunningham, 125 Me. 328, 133 A. 855 (1926), and Orr v. First National Stores, Inc., 280 A.2d 785 (1971), Maine law no longer permits a finding that both Caleb and his mother were negligent.

    Day was a negligence action brought in behalf of an eight-year-old girl against a motorist whose vehicle struck the girl as she crossed a public street while accompanied by her mother. In reviewing the sufficiency of the evidence supporting the judgment for the plaintiff child, the Maine Law Court discussed the doctrine of imputed contributory...

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