Pino v. Szuch, 19775

• Decision Date: 17 July 1991
• Docket Number: No. 19775,19775
• Citation: 185 W.Va. 476,408 S.E.2d 55
• Court: West Virginia Supreme Court
• Parties: Brenda PINO, as Mother and Next Friend of Patrick S. Pino, an Infant Under the Age of 18 Years, Plaintiff Below, Appellant, v. Steve SZUCH, Defendant Below, Appellee.

Page 55

408 S.E.2d 55

185 W.Va. 476

Brenda PINO, as Mother and Next Friend of Patrick S. Pino an Infant Under the Age of 18 Years, Plaintiff Below, Appellant, v. Steve SZUCH, Defendant Below, Appellee.

No. 19775.

Supreme Court of Appeals of

West Virginia.

Submitted May 8, 1991.

Decided July 17, 1991.

Syllabus by the Court

1. There is a conclusive presumption that a child under the age of seven is incapable of negligence.

2. For children between the ages of seven and fourteen, the conclusive presumption

disappears, and a rebuttable presumption applies. However, the burden is upon the party attempting to overcome the presumption to prove that the child has the capacity to be contributorily negligent.

3. A child age fourteen or older is presumed to be capable of being negligent, and if the child relies on the lack of such capacity, the burden of proving it is on the child.

4. In order to rebut the presumption that a child between the ages of seven and fourteen lacks the capacity to be negligent, evidence of the child's intelligence, maturity, experience, and judgmental capacity must be presented to the jury. It is also permissible to show that the child had been recently warned of the dangers associated with the activity that gave rise to his injury. The jury should be instructed about the rebuttable presumption and that it should consider the foregoing factors along with the entire chain of events leading up to the accident to determine whether the presumption has been rebutted.

5. A party is not entitled to rebut the presumption that a child between the ages of seven and fourteen is incapable of negligence with a binding instruction which focuses only on two factors, i.e., whether the child has been warned of the danger that caused his injury and whether the child was of sufficient intelligence to understand the danger.

6. " 'An erroneous instruction is presumed to be prejudicial and warrants a new trial unless it appears that the complaining party was not prejudiced by such instruction.' Point 2, syllabus, Hollen v. Linger, 151 W.Va. 255 [151 S.E.2d 330 (1966) ]." Syllabus Point 5, Yates v. Mancari, 153 W.Va. 350, 168 S.E.2d 746 (1969).

W.A. Thornhill, III, Beckley, for appellant.

Thomas S. Sweeney, Meyer, Darragh, Buckler, Bebenek, Eck & Hall, Charleston, for appellee.

MILLER, Chief Justice:

The plaintiff, Brenda Pino, as mother and next friend of Patrick S. Pino, an infant under the age of eighteen years, who was eight years of age at the time of the accident, appeals from a final order of the Circuit Court of Fayette County, dated April 9, 1990, denying her motion for a new trial. On appeal, the plaintiff contends that the jury was erroneously instructed about the rebuttable presumption that children between the ages of seven and fourteen lack the capacity to be negligent. We agree.

On September 19, 1981, Patrick S. Pino (Shawn) was riding his bicycle in the yard of Steve Szuch while Mr. Szuch was cutting the grass with a riding lawn mower. The bicycle and lawn mower collided, and Shawn's right leg and foot were severely injured.

Thereafter, Shawn's mother sued Mr. Szuch for negligent operation of the lawn mower. Following a two-day trial, the jury awarded the plaintiff a $15,000 verdict; however, the jury further found that Shawn was 45 percent comparatively negligent. Accordingly, the trial court reduced the $15,000 verdict by 45 percent and awarded the plaintiff $8,250.

West Virginia, like most jurisdictions, treats children with considerable favoritism in regard to their negligent acts. Courts have evolved different standards with regard to a child's negligence. See generally Annot., 32 A.L.R.4th 56 (1984 & Supp.1990) (contributory negligence of children); Annot., 27 A.L.R.4th 15 (1984 & Supp.1990) (primary negligence of children); O. Gray, The Standard of Care for Children Revisited, 45 Mo.L.Rev. 597 (1980).

We have traditionally held that there is a conclusive presumption that a child under the age of seven is incapable of negligence. See, e.g., Shaw v. Perfetti, 147 W.Va. 87, 125 S.E.2d 778 (1962); Ewing v. Lanark Fuel Co., 65 W.Va. 726, 65 S.E. 200 (1909).

For children between the ages of seven and fourteen, the conclusive presumption disappears, and a rebuttable presumption applies. However, the burden is upon the party attempting to overcome the presumption to prove that the child has the capacity to be contributorily negligent. We explained this rule in Syllabus Point 2 of Jordan v. Bero, 158 W.Va. 28, 210 S.E.2d 618 (1974):

"In tort law there is a rebuttable presumption that a child between the ages of seven and fourteen is not guilty of contributory negligence. To overcome this presumption, the burden is upon a defendant to prove by a preponderance of the evidence that a child of such age has the capacity to be guilty of contributory negligence."

At the age of fourteen and older, a child "is presumed to possess sufficient mental capacity to comprehend and avoid danger, and if he relies on his want of such capacity the burden of proving it is on him[.]" French v. Sinkford, 132 W.Va. 66, 68, 54 S.E.2d 38, 39 (1948), quoting Syllabus Point 5, in part, Ewing v. Lanark Fuel Co., supra. Thus, a child age fourteen or older is presumed to be capable of being negligent, and if the child relies on the lack of such capacity, the burden of proving it is on the child.

Several courts use similar age groupings when assessing a child's capacity to be negligent. See, e.g., Fletcher v. Hale, 548 So.2d 135 (Ala.1989); Friedman v. Park Dist. of Highland Park, 151 Ill.App.3d 374, 104 Ill.Dec. 329, 502 N.E.2d 826 (1986); Hoots v. Beeson, 272 N.C. 644, 159 S.E.2d 16 (1968); Hunter v. City of Cleveland, 46 Ohio St.2d 91, 75 O.O.2d 160, 346 N.E.2d 303 (1976); Berman v. Philadelphia Bd. of Educ., 310 Pa.Super. 153, 456 A.2d 545 (1983); Prater v. Burns, 525 S.W.2d 846 (Tenn.App.1975); Grant v. Mays, 204 Va. 41, 129 S.E.2d 10 (1963). Other jurisdictions have adopted the standard set out in Section 283A of the Restatement (Second) of Torts (1982). ¹ See Annot., 32 A.L.R.4th § 9 at 79. We find the Restatement standard too vague to assist a jury.

With this background, we address whether the trial court erred in giving Defendant's Instruction No. 6 to the jury. The instruction read:

"The Court further instructs the jury that if you believe from the evidence that Shawn Pino was warned of the danger in being around a lawn mower that was in operation, and that he was of sufficient intelligence to understand the danger, and that in spite of the same he voluntarily placed himself in a position where he collided with the lawn mower being operated by the defendant and was injured because of such collision, then you are instructed that such action on the part of Shawn Pino amounted to negligence."

Several flaws are apparent in this instruction. First, it did not state the general rule that there is a rebuttable presumption that an eight-year-old child cannot be guilty of contributory negligence. Second, the instruction did not state that the burden of overcoming this presumption was upon the defendant. Third, the instruction focused exclusively on two factors, i.e., that the child was warned of the danger of being around lawn mowers and was of sufficient intelligence to understand the danger. If the jury found these factors to be present, they were directed to find that the child was guilty of contributory negligence. Defendant's Instruction No. 6 was a binding instruction because it required the jury to find Shawn negligent if it believed the initial two premises existed. See Bragg v. C.I. Whitten Transfer Co., 125 W.Va. 722, 26 S.E.2d 217 (1943).

The rationale for the rebuttable presumption for children between the ages of seven and fourteen is that these children usually lack the intelligence, maturity, and judgmental capacity to be held accountable for their actions. There is no doubt, as the Pennsylvania court said in Berman v. Philadelphia Board of Education, 310 Pa.Super. at 159, 456 A.2d at 549, that the presumption "grows weaker as the fourteenth year grows closer." However, this case involved a child who was at the opposite end of the presumption spectrum. In this situation, the presumption is strong, and the defendant must show that the child's maturity, intelligence, experience, and judgmental capacity is significantly beyond that of the average eight-year-old to overcome it.

Merely showing that the child is a bright eight-year-old or does well in school does not rebut the presumption, and to hold otherwise would undercut its very foundation. The Alabama Supreme Court stressed this point in King v. South, 352 So.2d 1346, 1347 (Ala.1977), quoting Alabama Power Co. v. Taylor, 293 Ala. 484, 498, 306 So.2d 236, 250 (1975), as follows: " ' "The fact that an infant is shown to be bright, smart, and industrious is not sufficient to overcome the presumption of want of discretion. (Citations omitted.)" ... Jones v. Strickland, 201 Ala. 138, 77 So. 562 (1917).' " (Emphasis omitted).

We emphasize that in order to rebut the presumption that a child between the ages of seven and fourteen lacks the capacity to be negligent, evidence of the child's intelligence, maturity, experience, and judgmental capacity must be presented to the jury. It is also permissible to show that the child had been recently warned of the dangers associated with the activity that gave rise to his injury. Moreover, the jury should be instructed about the rebuttable presumption and that it should...