Horton v. Reaves
| Decision Date | 09 September 1974 |
| Docket Number | 484,Nos. C--482,s. C--482 |
| Citation | 526 P.2d 304 |
| Parties | Johnny HORTON and Keith Horton, Petitioners, v. Kirsten Renee REAVES, an infant, By the Continental National Bank, a Colorado corporation, her legally appointed guardian, Respondent. Kirsten Renee REAVES, and infant, By the Continental National Bank, a Colorado corporation, her legally appointed guardian, Petitioner, v. Delores HORTON et al., Respondents. |
| Court | Colorado Supreme Court |
Duane O. Littell, Denver, for petitioners.
Kenneth N. Kripke, Aspen, Louis Parkinson, Englewood, for respondent.
Burnett, Horan & Hilgers, Mike Hilgers, Denver, for Barbara Reaves.
Kenneth N. Kripke, Aspen, Louis Parkinson, Englewood, for petitioner.
Duane O. Littell, Denver, Colorado, Attorney for Delores Horton, Johnny Horton & Keith Horton.
On March 4, 1970, Mrs. Reaves placed her five-week-old daughter upon a bed, encompassed by pillows and blankets to prevent the baby from falling off the bed. Mrs. Reaves then left the child unattended for two and one-half hours while she visited a next-door neighbor, Mrs. Horton. As Mrs. Reaves was returning to her home, Johnny and Keith Horton, four and three year-old children of Mrs. Horton, were seen jumping from the porch of the Reaves home and running across the yard to their home. Johnny said something to his mother which indicated that the Reaves baby might need attention. In response to the severe questioning of his mother, Johnny admitted that he had dropped the Reaves baby. Mrs. Horton immediately called to Mrs. Reaves to check on her child. Mrs. Reaves found the infant on the bedroom floor with a crushed skull.
Through her legal guardian the infant plaintiff brought this personal injury action against Johnny and Keith Horton, Mrs. Horton, and Mrs. Reaves. The complaint alleged: That Johnny and Keith Horton entered the Reaves home without authority and assaulted and battered the child; that Mrs. Horton negligently supervised or failed to supervise her children, thereby allowing the assault and battery to occur; that Mrs. Reaves negligently failed to care for her child by leaving it unattended; that the action of Mrs. Reaves also constituted wanton or reckless disregard for the infant's well-being.
Prior to trial, the district court dismissed the simple negligence claim against Mrs. Reaves on grounds of parental immunity. At the close of the plaintiff's case, the court dismissed the claim against Mrs. Horton and the remaining claim against Mrs. Reaves by reason of insufficiency of evidence. The trial proceeded to conclusion against the two remaining defendants, Johnny and Keith Horton. Judgment was entered upon a jury verdict in favor of these defendants.
The Court of Appeals affirmed the district court in all respects except that it reversed and remanded the claim against Johnny and Keith Horton for a new trial on the basis of an improper jury instruction. We granted two petitions for certiorari to the Court of Appeals decision, Reaves v. Horton, Colo.App., 518 P.2d 1380 (1973). One petition for certiorari was by the infant against Mrs. Reaves and Mrs. Horton; and the other was by the boys, complaining as to the reversal. We have consolidated the writs. We affirm as to the first writ and reverse as to that of the boys.
The plaintiff first argues that the Court of Appeals erred in affirming the district court's ruling that there was insufficient evidence to submit the issue of Mrs. Horton's negligence to the jury.
As pointed out by the Court of Appeals, under the great weight of authority a parent is not liable for the torts of a child merely because of the parent-child relationship. National Dairy Products Corp. v. Freschi, 393 S.W.2d 48 (Mo.App.1965); See Hice v. Pullum, 130 Colo. 302, 275 [186 Colo. 154] P.2d 193 (1954). Rather, a parent is liable for the tortious acts of the child only if the parent's negligence in supervising the child is the proximate cause of the injury. In cases involving a battery committed by a child, the parent's liability is predicated upon three factors: (1) that the child had a propensity to commit the particular abuse which caused the injury; (2) that the parent knew of the child's propensity; and (3) that the parent failed to restrain the child from committing the particular type of wrongful conduct causing injury. Accord, Seifert v. Owen, 10 Ariz.App. 483, 460 P.2d 19 (1969); National Dairy Products Corp., supra.
In this case there was no competent evidence establishing Mrs. Horton's liability. The only testimony concerning any previous assault-like behavior on the part of Johnny or Keith was supplied by Mrs. Reaves. She testified that on one occasion Johnny and Keith had pushed another Horton child off a bed. Mrs. Reaves' testimony states that Mrs. Horton reprimanded her children for this behavior. This latter testimony indicates that Mrs. Horton exercised due care in watching over Johnny and Keith. In fact, we have been unable to find any evidence in the record tending to show that Mrs. Horton was negligent in not preventing Johnny and Keith from engaging in the particular type of behavior of which the plaintiff has complained. Under these circumstances, the Court of Appeals was correct in concluding that the issue of Mrs. Horton's negligence should not have been submitted to the jury.
The plaintiff contends that the Court of Appeals erred in affirming the district court's ruling that certain statements of Mrs. Horton to the effect that she felt responsible for what had happened were not admissible in evidence. We are in agreement with the reasoning set forth in the Court of Appeals' opinion, supporting the conclusion that the statements were not competent evidence.
Plaintiff's counsel also attempted to elicit testimony from Mrs. Horton concerning her understanding of whether or not Johnny or Keith had dropped the infant plaintiff. This offered testimony constituted nothing more than an opinion of a witness who had absolutely no personal knowledge as to whether the infant had been dropped. Therefore, the offered testimony was properly excluded. Davis v. Bonebrake, 135 Colo. 506, 313 P.2d 982 (1957).
The Court of Appeals ruled that the trial court failed to properly instruct the jury concerning the intent requirement of an infant charged with an intentional tort.
The jury was instructed that in order to find Keith and Johnny Horton liable, it had to find: (1) that the defendants were 'capable of intending the harmful contact of another;' and (2) that the defendants 'acted with the intent of making a harmful contact with the plaintiff's person.' The question of the nature of the intent required of infants charged with intentional torts is a matter of first impression in this state. Some other jurisdictions have held that infants are liable for their intentional torts irrespective of intent to cause harm. The only intent required is that to commit the physical act. Brown v. Dellinger, 355 S.W.2d 742 (Tex.Civ.App.1962); Singer v. Marx, 144 Cal.App.2d 637, 301 P.2d 440 (1956); Garratt v. Dailey, 46 Wash.2d 197, 279 P.2d 1091 (1955); Ellis v. D'Angelo, 116 Cal.App.2d 310, 253 P.2d 675 (1953); Weisbart v. Flohr, 260 Cal.App.2d 281, 67 Cal.Rptr. 114 (1968).
It is recognized that, often as a matter of policy, other jurisdictions hold infants liable for their intentional torts, so as to avoid inflicting financial loss upon an innocent victim. It is our view, however, that the requisite intent required must include some awareness of the natural consequences of intentional...
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