Works By and Through Works v. Allstate Indem. Co.

• Citation: 594 So.2d 60
• Parties: Jason WORKS, a minor, By and Through his father and next friend, Autry WORKS; and Autry Works, individually v. ALLSTATE INDEMNITY COMPANY. 1900991.
• Decision Date: 31 January 1992
• Court: Supreme Court of Alabama

Page 60

594 So.2d 60

Jason WORKS, a minor, By and Through his father and next friend, Autry WORKS; and Autry Works, individually v. ALLSTATE INDEMNITY COMPANY.

1900991.

Supreme Court of Alabama.

Jan. 31, 1992.

James T. Sasser, Gadsden, for appellants.

Bert P. Taylor and William F. Smith II, Birmingham, for appellee.

KENNEDY, Justice.

The plaintiffs appeal from a judgment based on a jury verdict in favor of the defendant, Allstate Indemnity Company.

The first issue before this Court is whether, given the fact that plaintiff Jason Works was only 13 years old, the trial court erred by charging the jury on the doctrine of contributory negligence and on the assumption that others (i.e., in this case, the plaintiff) will obey the law? The second issue is whether the trial court erred in granting Allstate's motion in limine.

On February 25, 1987, 13-year-old Jason Works, while riding his four-wheel recreational vehicle on old Highway 75 in Blount County, collided with an automobile driven by Fritz Jerrell Suttles. The evidence was in dispute as to whether Works was in the correct lane at the time of the accident. Works testified that he was on the right side of the road, and Suttles testified that Works was on the left side of the road when the collision occurred. There was evidence that the collision occurred in the middle of the road. Works was injured and incurred hospital bills in the amount of $102,000. Works and his father, Autry Works, sued Suttles, alleging that Suttles had negligently injured Jason Works. Suttles and the Workses later entered into a pro tanto settlement, whereby the Workses received $20,000, the total amount of liability insurance under Suttles's policy. The Workses also sued Allstate for underinsured motorist insurance benefits pursuant to three policies owned by Autry Works.

Before trial, Allstate filed a motion in limine, asking the court to prevent the Workses from alluding to the pro tanto settlement with Suttles. The trial court granted the motion.

At trial, Jason Works's mother testified that Jason had a learning disability and was in a special education class at school. She testified that he was able to drive the four-wheel vehicle but that she felt that his learning disability affected his ability to make "good choices." She also stated on cross-examination that she thought Jason was competent to operate the four-wheel vehicle and that she never prevented him from driving the vehicle because of poor judgment.

Jason Works testified that he knew it was dangerous to operate his vehicle on the wrong side of the road. He also stated that he knew he could get hurt if he was struck by an automobile while driving his vehicle and that he knew that if he stayed off the paved road, he would not be struck by a car.

The trial court charged the jury, in pertinent part, as follows:

"A child between the ages of seven and fourteen is presumed to be wanting in that degree of care, judgment, and discretion and sensitiveness to danger which belongs to the average child who is fourteen years of age, and therefore [is] presumed to be incapable of committing contributory negligence.... This presumption is [rebuttable]. And if you are reasonably satisfied from the evidence that the plaintiff, Jason [Works], was between the ages of seven and fourteen years, and did at the time of the occasion complained of possess that degree of care, judgment, discretion and sensitiveness to danger belonging to the average child of fourteen years of age then you would consider and determine whether or not he was guilty of contributory negligence.... If you should reach the determination that at the time [of the accident] he was so accountable then he would be ... in the same shoes as all of the adults who drive an automobile or operate a vehicle on a public highway [and] would be under the same standard of care that you would be or I would be or any other individual over fourteen years of age would be under...."

(R.T. 529-30).

"Every person has the right to assume that other persons will obey the law. And he has a right to proceed under such presumption until the contrary is clearly evident to him or by the exercise of reasonable care should have been clearly evident to him. This would apply only if the jury should find at the time of the occasion complained of that the plaintiff, Jason Works, possessed that degree of care, judgment, and sensitiveness of danger belonging to the average child fourteen years of age...."

(R.T. 553-54).

The jury returned a verdict in favor of Allstate.

Given the fact that plaintiff Jason Works was only 13 years old, did the trial court err by instructing the jury on contributory negligence and the assumption that others will obey the law?

First, Jason Works argues that the trial court committed reversible error in submitting the defense of contributory negligence to the jury because, he contends, there was no evidence presented to rebut the presumption that a child between the ages of 7 and 14 is incapable of contributory negligence. Allstate argues that the defense of contributory negligence was available, contending that testimony from Jason and his mother indicated that Jason possessed the same degree of discretion, intelligence, and sensitivity to danger as an average 14-year-old.

Second, Jason argues that the trial court erred in charging that Suttles could assume that Jason would obey the law, given the fact that Jason was under 14 years of age....