Jenkins v. Snohomish County Public Utility Dist. No. 1

• Decision Date: 16 January 1986
• Docket Number: No. 51118-7
• Citation: Jenkins v. Snohomish County Public Utility Dist. No. 1, 713 P.2d 79, 105 Wn.2d 99 (Wash. 1986)
• Parties: David JENKINS, as Guardian ad Litem for Jonathan Jenkins, a minor, Appellant, v. SNOHOMISH COUNTY PUBLIC UTILITY DISTRICT NO. 1, a municipal corporation, Respondent. En Banc
• Court: Washington Supreme Court

Page 99

105 Wn.2d 99

713 P.2d 79

David JENKINS, as Guardian ad Litem for Jonathan Jenkins, a minor, Appellant, v. SNOHOMISH COUNTY PUBLIC UTILITY DISTRICT NO. 1, a municipal corporation, Respondent.

No. 51118-7.

Supreme Court of Washington,

En Banc.

Jan. 16, 1986.

Greive & Law, Robert R. Greive, Seattle, for appellant.

Anderson, Hunter, Dewell, Baker & Collins, P.S., William Baker, Everett, for respondent.

UTTER, Justice.

The Jenkins, plaintiffs below, appeal an additur by the trial judge after a jury verdict which he found to be based on passion and prejudice. In support of their appeal they claim error in the admission of three items of evidence: the deposition of a child, testimony regarding parental negligence, and a video reenactment of the accident. Respondents cross appeal from the judge's removal of the issue of parental negligence from the jury and his grant of an additur without the alternative of a new trial. We grant a new trial inasmuch as the trial judge erred as a matter of law in admitting the deposition of a child who was under 10 years of age and not shown to be competent. We also order exclusion on retrial of the evidence relating to parental negligence.

David and Barbara Jenkins brought suit on behalf of their son, Jonathan, and themselves for injuries suffered by Jonathan, who, when he was 7, climbed the fence of a Snohomish County Public Utility District (PUD) substation near Stanwood, Washington in 1981. As a result of his injuries, Jonathan's right arm was amputated below the elbow.

A verdict for the Jenkins of $10,000 in special damages and $20,000 in general damages was returned. This included a reduction of both awards by 75 percent for contributory negligence on Jonathan's part. The trial judge granted an additur, noting that he believed he had erred in admitting evidence during the trial regarding Jonathan playing in the vicinity of the neighborhood gas station, and a statement that Jonathan had been told not to play near railroad tracks. This evidence, he believed, had inflamed the jury and caused it to find greater contributory negligence than warranted. The evidence had been admitted in support of the PUD's affirmative defense of parental negligence.

I

The trial judge admitted a deposition given by Lance Sinka. Lance was 6 at the time of the accident and was with Jonathan when he climbed the fence at the power station. He gave his deposition a year after the accident. Because he was unavailable for trial, the court, over the objection of the Jenkins, admitted his deposition. In the deposition Lance stated he had warned Jonathan not to go into the substation because there was electricity and it was dangerous. In the same deposition, however, he also stated he did not know about electricity until after the accident.

The admission of testimony by children under 10 is within the discretion of the trial court. Laudermilk v. Carpenter, 78 Wash.2d 92, 102, 457 P.2d 1004 (1969). Under Washington law children under 10, who appear incapable of receiving just impressions of the facts respecting which they are examined, or of relating them truly, are not competent to testify. RCW 5.60.050(2). Children are not disqualified from testifying simply because of age.

The test to determine child competency is set out in State v. Allen, 70 Wash.2d 690, 692, 424 P.2d 1021 (1967). The 5-part test states the child must exhibit (1) an understanding of the obligation to speak the truth on the witness stand; (2) the mental capacity at the time of the occurrence concerning which he is to testify to receive an accurate impression of it; (3) a memory sufficient to retain an independent recollection of the occurrence; (4) the capacity to express in words his memory of the occurrence; and (5) the capacity to understand simple questions about it. This test, read in conjunction with the statute, must be applied by the trial court to determine whether the child witness is competent to testify. State v. Ryan, 103 Wash.2d 165, 172, 691 P.2d 197 (1984).

Because Lance Sinka was unavailable to testify in person, the court found him competent solely on the basis of the contents of the deposition. While it is within the trial court's discretion to determine competency, where, as here, the trial court makes its determination on documentary evidence in the record rather than on personal observation of the witness, this court may review de novo the trial court's finding. Smith v. Skagit Cy., 75 Wash.2d 715, 453 P.2d 832 (1969).

The deposition makes clear that Lance understood his obligation to tell the truth and that he knew the difference between truth and falsehood. In addition, there is no doubt that Lance had the mental capacity to receive an accurate impression and to understand simple questions, and the ability to express his recollection in words.

Lance described the accident by stating that Jonathan went into the power station first, even though Lance told him it was "real." He said he told Jonathan to get down, yelled at him because "there was electricity on all of them, all kinds of electricity." Deposition of Lance Sinka, at 7. Then, in relation to the danger of the substation, he described wires hooked to light and telephone poles which hook onto the electricity at the power plant. In answer to the question "Why did you try to warn him?" he answered "Because that's real electricity, and it could really hurt someone real bad." Deposition, at 11. Toward the end of the deposition, in response to another question, however, Lance said he only learned of electricity after the accident.

The deposition itself shows that Lance did not have a memory sufficient to retain an independent recollection of the occurrence. The trial judge, recognizing the internal contradiction, decided that the contradiction went to the credibility of the evidence rather than to its admissibility, analogizing to the method of analysis with regard to inconsistent evidence given by adults.

The Legislature and the courts have recognized that child witnesses present special problems. Consequently, each element of the Allen test is critical to a determination of competency. The absence of one of the elements gives rise to legitimate questions about the child's mental ability to grasp or recall the incident or the child's recognition of the importance of a legal proceeding, factors taken for granted with adult witnesses. The absence here of one of the elements is fatal to a finding of competence.

Had the judge subsequently seen Lance, and had the PUD attorney through questioning been able to demonstrate Lance's ability to independently recollect the accident, the contradictions in the deposition would go to credibility rather than admissibility. However, since the deposition was the only information the judge had on which to rely, and because the deposition clearly demonstrated that one of the five elements critical to a determination of child competency was absent, as a matter of law Lance Sinka was incompetent and admission of his deposition was error.

This error was extremely prejudicial to Jonathan's case. In evaluating contributory negligence with respect to children the jury is asked to decide whether a child of similar age and intelligence would have acted similarly. Lance was younger than Jonathan. If Lance knew the substation was dangerous and had even warned Jonathan of the danger, it would be reasonable for the jury to conclude Jonathan knew or should have known of the danger and disregarded it. Consequently, the deposition pertained to an issue central to the PUD's defense of contributory negligence on Jonathan's part and to the jury's analysis. The fact that the portion of the deposition leading to the conclusion of incompetence involves the very same issue, compounds the prejudice. No instruction could have cured an error of such a prejudicial nature. We therefore order a new trial.

II

During the trial the PUD submitted evidence that David and Barbara Jenkins negligently supervised Jonathan and were, as a consequence, liable for his injuries. The trial judge admitted several pieces of evidence in support of parental negligence but at the end of the trial took the issue from the jury. Both the Jenkins and the PUD have appealed, the Jenkins to keep the evidence out, the PUD to permit the issue to go to the jury.

Historically, the parental immunity doctrine has been based on the public policy interest in maintaining family tranquility, fear of undermining parental control and authority, an interest in assuring that family property be shared by all rather than appropriated by one family member, fear of collusion and fraud, and a view of the parent-child relationship as analogous to the husband-wife relationship.

Although the doctrine of parental immunity was widespread in the past, some states have eliminated it altogether. See, e.g., Gibson v. Gibson, 3 Cal.3d 914, 479 P.2d 648, 92 Cal.Rptr. 288 (1971) (applying a reasonable and prudent parent test). Others have limited its application. See, e.g., Goller v. White, 20 Wis.2d 402, 122 N.W.2d 193 (1963) (retaining parental immunity only where the act involves (1) exercise of parental authority, or (2) exercise of ordinary parental discretion with respect to provision of food, clothing, housing, medical and dental services and other care). A third approach separates parental supervision from other types of parental negligence and then upholds parental immunity where the parent's act was one of simple negligence, while delineating that parents are not immune from willful or wanton failure to supervise a child. Foldi v. Jeffries, 93 N.J. 533, 461 A.2d 1145 (1983).

This court has generally found parental immunity for negligent supervision, Cox v. Hugo, 52 Wash.2d 815, 329 P.2d 467 (1958), but has recognized exceptions to the parental immunity doctrine. Merrick v. Sutterlin, 93 Wash.2d 411, 610 P.2d 891 (1980) (no parental immunity when a child is injured as the...