Honeycutt By and Through Phillips v. City of Wichita
Decision Date | 23 July 1990 |
Docket Number | No. 64179,U,No. 259,259,64179 |
Citation | 796 P.2d 549,247 Kan. 250 |
Parties | Jeremy HONEYCUTT, a minor, By and Through his Guardian, Daniel H. PHILLIPS, Appellee, v. CITY OF WICHITA, Wichita Public School System U.S.D.nion Pacific Railroad Corporation, and Missouri Pacific Railroad Co., Appellants. |
Court | Kansas Supreme Court |
Syllabus by the Court
1. The negligence or comparative fault of a particular child in particular circumstances is a question of fact to be determined by the finder of fact in each case.
2. A child is not bound to exercise the same degree of care for his or her safety as is required of an adult.
3. A child is required to exercise that degree of care and caution ordinarily exercised by children of like age, intelligence, capacity, and experience under the circumstances then existing.
Debra J. Arnett of McDonald, Tinker, Skaer, Quinn & Herrington, P.A., Wichita, argued the cause, and Barbara S. Girard, of the same firm, was with her on the briefs, for appellant Wichita Public School System U.S.D. No. 259.
Michael B. Buser of Union Pacific Railroad Co., North Kansas City, Mo., argued the cause and was on the briefs for appellants Union Pacific Railroad Corp. and Missouri Pacific Railroad Co.
Douglas J. Moshier, Asst. City Atty., argued the cause and was on the briefs for appellant City of Wichita.
Bradley J. Prochaska, of Bradley J. Prochaska & Associates, Wichita, argued the cause, and Gerard C. Scott and Michael L. Snider, of the same firm, were with him on the brief for appellee.
Randall E. Fisher of Michaud, Hutton & Bradshaw, Wichita, was on the brief for amicus curiae Kansas Trial Lawyers Ass'n.
Kerry M. Gasper, Topeka, was on the brief for amicus curiae Kansas Ass'n of School Boards.
This is an interlocutory appeal from an order of the Sedgwick County District Court, finding as a matter of law that the six-year-old plaintiff, Jeremy Honeycutt, could not be comparatively at fault because of his age and granting partial summary judgment. Defendants, the City of Wichita, U.S.D. No. 259, Union Pacific Railroad Corporation, and Missouri Pacific Railroad Co., appeal.
The issue for our decision is whether the negligence of a young child is a question of fact or whether a child below a certain age is incapable of negligence as a matter of law. If the latter, then at what age does the negligence of a person become a question of fact?
The facts, so far as they were developed and presented to the judge at the time of his decision, were as follows: Jeremy Honeycutt was six years and four months of age when his legs were severed by a moving train at a railroad crossing on his path home from school. Jeremy had been running alongside the moving train, trying to touch it or get on it, despite warnings from his family and teachers to stay away from trains and follow the directions of his school safety patrol.
Jeremy filed suit through his guardian, Daniel H. Phillips, against the city, the school district, and the railroads. He then filed a motion for partial summary judgment, asking the court to hold as a matter of law that he could not be comparatively at fault because of his age. His motion was granted by the trial court, and the Court of Appeals granted defendants' petition for an interlocutory appeal. We ordered the case transferred to this court pursuant to K.S.A. 20-3018(c).
Summary judgment is only proper on a genuine question of law not subject to factual dispute. See Ruebke v. Globe Communications Corp., 241 Kan. 595, 605, 738 P.2d 1246 (1987). The presence or absence of negligence is ordinarily a question of fact for the jury, rather than one for judicial resolution by summary judgment. See Phillips v. Carson, 240 Kan. 462, 472, 731 P.2d 820 (1987).
Whether a child can be held to some standard of care is purely a question of law. The use of summary judgment procedure here was therefore appropriate.
Before examining Kansas case law, let us determine what the current law is in those jurisdictions which have specifically addressed the issues.
Some states hold that a child under seven is not capable of negligence as a matter of law. This is known as the "Illinois rule." See Toney v. Mazariegos, 166 Ill.App.3d 399, 116 Ill.Dec. 820, 519 N.E.2d 1035 (1988). Other courts follow the "Massachusetts rule" and hold that a minor's capability for negligence is a question of fact. See, e.g., Peterson v. Taylor, 316 N.W.2d 869 (Iowa 1982). These courts generally hold that a particular minor's capacity for negligence may be determined by the trial court as a matter of law only if the child is so young or the evidence of incapacity is so overwhelming that reasonable minds could not differ on the matter. For example, the Nevada Supreme Court in Quillian v. Mathews, 86 Nev. 200, 203, 467 P.2d 111 (1970), noted that the "numerical weight of authority appears to favor" a rule that a minor's negligence is a fact question and held the trial court did not err in submitting the question of negligence of a six-year-old to the jury. The court rejected the defendant's contention that a six-year-old cannot be negligent as a matter of law, stating:
Other courts hold that a child may be held incapable of negligence as a matter of law, but only at some unstated age or at an Finally, some courts hold that a child is only rebuttably presumed incapable of negligence as a matter of law. See, e.g., Patterson v. Cushman, 394 P.2d 657 (Alaska 1964) ( ).
age younger than seven (typically, below the age of five). See, e.g., Taylor v. Armiger, 277 Md. 638, 358 A.2d 883 (1976) ( ).
For listings of cases from different jurisdictions, see 2A Personal Injury, Children §§ 4.02, 8.01 (Frumer & Friedman ed. 1989); Prosser and Keeton, The Law of Torts § 32, pp. 179-82 (5th ed. 1984 & 1988 Supp.); Annot., Modern Trends as to Contributory Negligence of Children, 32 A.L.R.4th 56.
The modern trend in the law appears to be to allow a jury to evaluate the negligence of a minor plaintiff based on a child's standard of care. See, e.g., Peterson v. Taylor, 316 N.W.2d at 872; 2A Personal Injury, Children § 4.02; Annot., 32 A.L.R.4th 56; Annot., Modern Trends as to Tort Liability of Child of Tender Years, 27 A.L.R.4th 15; Annot., Railroad's Liability for Injury to or Death of Child on Moving Train Other than as Paying or Proper Passenger, 35 A.L.R.3d 9; Comment, Capacity of Minors to be Chargeable with Negligence and Their Standard of Care, 57 Neb.L.Rev. 763, 767 (1978).
Professor Keeton, in Prosser and Keeton, The Law of Torts § 32, pp. 179-81 states:
As early as 1936, the Minnesota Supreme Court gave a good explanation of the reasoning behind the modern trend:
"Under the so-called Illinois rule (which is analogous to the common law rule with respect to the nonresponsibility of such young children for criminal acts), it is held that a child under seven is incapable of contributory negligence. [Citations omitted.] This rule has the merit of being easy to apply. However, it is arbitrary and always open to the objection that...
To continue reading
Request your trial-
Honeycutt By and Through Phillips v. City of Wichita
...based upon that degree of care exercised by children of the same age, intelligence, capacity, and experience." Honeycutt v. City of Wichita, 247 Kan. 250, 264, 796 P.2d 549 (1990). On remand, the claims were disposed of against all of the defendants. The manner and timeliness of the disposa......
-
Simmons v. Porter
...(“Usually, a determination of the presence or absence of negligence should be left to the trier of fact.”); Honeycutt v. City of Wichita, 247 Kan. 250, 251, 796 P.2d 549 (1990) (same). In other words, when a defendant employer asks the district court to apply assumption of risk as a matter ......
-
Pacific Employers Ins. v. PB Hoidale Co.
...law, the presence or absence of negligence is ordinarily a question of fact for the jury, e.g., Honeycutt ex rel. Phillips v. City of Wichita, 247 Kan. 250, 251, 796 P.2d 549 (1990), and may be decided as a question of law only when the facts are undisputed and susceptible of only one infer......
-
Kerns By and Through Kerns v. G.A.C., Inc.
...P.2d 593 (1978), overruled on other grounds Bowers v. Ottenad, 240 Kan. 208, 729 P.2d 1103 (1986); see also Honeycutt v. City of Wichita, 247 Kan. 250, 262, 796 P.2d 549 (1990) (jury's determination of the comparative negligence of a minor in context of attractive The doctrine of attractive......
-
A Review of the Kansas Comparative Fault Act
...McGraw v. Sanders Co. Plumbing & Heating, Inc., 233 Kan. 766, 773, 667 P.2d 289, 295 (1983). [FN10]. See Honeycutt v. City of Wichita, 247 Kan. 250, 251, 796 P.2d 549, 551 (1990). [FN11]. See Wooderson v. Ortho Pharmaceutical Corp., 235 Kan. 387, 414, 681 P.2d 1038, 1060 (1984). [FN12]. 224......
-
Duty of Care
...W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS § 32, at 179 n.39 (5th ed. 1984)). 53. See Honeycutt v. City of Wichita, 796 P.2d 549 (Kan. 1990)(requiring a child to exercise that degree of care and caution ordinarily exercised by children of like age, intelligence, capacity,......