Bauman by Chapman v. Crawford

• Citation: 704 P.2d 1181,104 Wn.2d 241
• Decision Date: 08 August 1985
• Docket Number: No. 50870-4,50870-4
• Parties: Donald T. BAUMAN, a minor, by his guardian ad litem, John H. CHAPMAN, and Lydia Bauman, Petitioners, v. Robert S. CRAWFORD, Respondent.
• Court: United States State Supreme Court of Washington

Page 241

104 Wn.2d 241

704 P.2d 1181

Donald T. BAUMAN, a minor, by his guardian ad litem, John H CHAPMAN, and Lydia Bauman, Petitioners, v. Robert S. CRAWFORD, Respondent.

No. 50870-4.

Supreme Court of Washington En Banc.

Aug. 8, 1985.

Miracle, Pruzan, Morrow, Pruzan & Johnson, Howard R. Pruzan, Seattle, for petitioners.

Helsell, Fetterman, Martin, Todd & Hokanson, Lish Whitson, Seattle, for respondent.

PEARSON, Justice.

This appeal requires us to decide whether the negligence per se doctrine should be applicable to minors, or whether minors should instead be judged only by the special child's standard of care in a civil negligence action. We hold that a minor's violation of a statute does not constitute proof of negligence per se, but may, in proper cases, be introduced as evidence of a minor's negligence. Accordingly, we reverse the decision of the Court of Appeals. Bauman v. Crawford, 38 Wash.App. 301, 685 P.2d 1104 (1984).

On April 24, 1979, at approximately 9:30 p.m., the bicycle ridden by petitioner Donald Bauman collided with the automobile driven by respondent. Petitioner was 14 years 4 months old at that time. The collision occurred after dark on a public street in Seattle. Petitioner was riding his bicycle down a steep hill; as he reached the base of the hill, respondent turned left in front of petitioner and the collision resulted. Petitioner's bicycle was equipped with reflectors, but had no headlight. Seattle Municipal Code 11.44.160 and RCW 46.61.780(1) each require a headlight on a bicycle operated after dark.

In the collision, petitioner suffered a broken lower leg (tibia and fibula) which required three surgeries during the 6 weeks immediately following the accident. Overall, petitioner was hospitalized 10 days, had a cast for about 2 months, and required crutches to ambulate for several weeks after cast removal.

Petitioner, through his guardian ad litem, sued respondent for damages. Respondent's answer alleged contributory negligence by petitioner as an affirmative defense.

The trial court instructed the jury that violation of an ordinance is negligence per se. The court also instructed the jury that the standard of ordinary care for a child is the care that a reasonably careful child of the same age, intelligence, maturity, training and experience would exercise under similar circumstances.

The jury rendered a verdict of $8,000 for petitioner, reduced by 95 percent for petitioner's contributory negligence. Thus, the final verdict was $400 for petitioner.

Petitioner contends it was reversible error for the court to instruct on negligence per se because he is a minor. He further contends that it was reversible error for the court to give the negligence per se instruction in combination with the special child's standard of care instruction because these instructions are contradictory to one another.

Petitioner argued to the Court of Appeals, and now urges before this court, that negligence per se is inapplicable to minors under all circumstances. He urges that the special child's standard of care is the proper standard to be applied to a minor, notwithstanding violation of a statute or ordinance.

The Court of Appeals, relying on Everest v. Riecken, 30 Wash.2d 683, 193 P.2d 353 (1948), declined to hold that the negligence per se doctrine is inapplicable to minors. In Everest, this court held that a 15-year-old bicyclist was negligent per se for riding his bicycle after dark without a light, in violation of law. There, this court declined to hold that the child's minority excused him from the operation of the negligence per se doctrine, but did so with no discussion of the policies underlying the negligence per se doctrine or the child's standard of care. After careful reconsideration of those policies, we have determined that the policies underlying the doctrine of negligence per se clash with the policies underlying the special child's standard of care. We therefore overturn the Everest case to the extent that it is incompatible with our holding today.

In Washington, a child under 6 years old cannot be held to be contributorially negligent. Graving v. Dorn, 63 Wash.2d 236, 386 P.2d 621 (1963). Conversely, a 17 or 18-year-old of normal capacity may be treated as an adult in all cases. Dingwall v. McKerricher, 75 Wash.2d 352, 450 P.2d 947 (1969). Accordingly, the decision in this case applies only to minors 6 to 16 years of age. Generally, contributory negligence of minors in this age group is a question for the trier of fact. Graving v. Dorn, supra.

Washington has long recognized the special standard of care applicable to children: a child's conduct is measured by the conduct of a reasonably careful child of the same age, intelligence, maturity, training and experience. Robinson v. Lindsay, 92 Wash.2d 410, 412, 598 P.2d 392 (1979); Roth v. Union Depot Co., 13 Wash. 525, 43 P. 641, 44 P. 253 (1896). The rationale for the special child's standard of care is that a child is lacking in the judgment, discretion, and experience of an adult; thus, the child's standard of care allows for the normal incapacities and indiscretions of youth. See 3 Vand.L.Rev. 145 (1949); Note, 37 Tex.L.Rev. 255 (1958); Keet, Contributory Negligence of Children, 12 Clev.-Mar.L.Rev. 395 (1963). Most significantly, the child's standard was created because public policy dictates that it would be unfair to predicate legal fault upon a standard most children are incapable of meeting. Thus, the fact of minority is not what lowers the standard; rather, the child's immaturity of judgment and lack of capacity to appreciate dangers justifies a special child's standard. See Dorais v. Paquin, 113 N.H. 187, 304 A.2d 369 (1973); Annot., Modern Trends as to Contributory Negligence of Children, 77 A.L.R.2d 917 (1961).

A primary rationale for the negligence per se doctrine is that the Legislature has determined the standard of conduct expected of an ordinary, reasonable person; if one violates a statute, he is no longer a reasonably prudent person. Mertz, The Infant and Negligence Per Se in Pennsylvania, 51 Dick.L.Rev. 79 (1946); 3 Vand.L.Rev. 145 (1949). Negligence per se exists when a statute or ordinance is violated, and that law is designed to (a) protect a class of persons which includes the person whose interest is invaded, (b) protect the particular interest which is invaded, (c) protect against the kind of harm which resulted, and (d) protect that interest against the particular hazard from which the harm results. Young v. Caravan Corp., 99 Wash.2d 655, 659-60, 663 P.2d 834, 672 P.2d 1267 (1983).

A majority of courts in states which apply the negligence per se doctrine to adults have recognized a fundamental conflict between that doctrine and the special child's standard of care. See Finch v. Christensen, 84 S.D. 420, 172 N.W.2d 571 (1969) (negligence per se inapplicable to 11-year-old bicyclist riding at night without a light); Rosenau v. Estherville, 199 N.W.2d 125 (Iowa 1972); Rudes v. Gottschalk, 159 Tex. 552, 324 S.W.2d 201 (1959); Brown v. Connolly, 206 Cal.App.2d 582, 24 Cal.Rptr. 57 (1962); Shaver v. Berrill, 45 Ill.App.3d 906, 3 Ill.Dec. 123, 358 N.E.2d 290 (1976). Scholarly commentary also overwhelmingly supports the view that negligence per se is inapplicable to children. See 37 Tex.L.Rev. 255 (1958); 26 S.Cal.L.Rev. 335 (1953); Annot., Child's Violation of Statute or Ordinance as Affecting Question of His Negligence or Contributory Negligence, 174 A.L.R. 1170 (1948); Mertz, The Infant and Negligence Per Se in Pennsylvania, 51 Dick.L.Rev. 79 (1946); 3 Vand.L.Rev. 145 (1949).

The majority rule is based upon the policy considerations underlying each doctrine. These courts and commentators recognize that application of negligence per se to children abrogates the special standard of care for children; such abrogation violates the public policy inherent in the special child's standard. These courts and commentators also recognize that refusal to consider a child's minority in effect substitutes a standard of strict liability for the criterion of the reasonable child.

Conversely, the minority of courts willing to impose negligence per se on children do so, for the most part, without discussion of the policy considerations underlying the two doctrines at issue here. Often, a mechanistic statutory construction is applied to foreclose any consideration of the child's maturity level, experience, age, or intelligence. These courts reason that if the legislature did not specifically exclude children from the requirements of the statute, then all persons, including children, are required to behave in accordance with that statute. See Sagor v. Joseph Burnett Co., 122 Conn. 447, 190 A. 258 (1937) (no exception to negligence per se doctrine for children; the terms of the statute are clear and precise); D'Ambrosio v. Philadelphia, 354 Pa. 403, 47 A.2d 256 (1946) (the law applies equally to adults and children unless it specifically excludes children).

Similarly, the Court of Appeals in the present case was persuaded that the Washington Legislature intended that children be held negligent per se for violation of the statute involved in this case. In 1965 the Legislature repealed RCW 46.47.090 which specifically stated that no child under 16 shall be held to be negligent per se for any violation of the statute. See Laws of 1951, ch. 76, § 9, p. 214 (later codified as RCW 46.47.090); Laws of 1965, 1st Ex. Sess., ch. 155, § 91, p. 2323. The Court of Appeals interprets this deletion from the statute as proof that the Legislature intends that negligence per se be applied whenever the statute is violated by a child. Bauman v. Crawford, 38 Wash.App. 301, 309, 685 P.2d 1104 (1984). That court relies on the rule that a material change in a statute indicates a change in legislative intent for that interpretation. See Strunk v. State Farm Mut. Auto. Ins. Co., 90 Wash.2d 210, 580 P.2d 622 (1978).

The legislative...