Yount v. Johnson

• Citation: 915 P.2d 341,121 N.M. 585,1996 NMCA 46
• Decision Date: 26 March 1996
• Docket Number: No. 15792,15792
• Parties: Kathryn YOUNT, as mother and next friend of Matthew Monett, a minor, Plaintiff-Appellant, v. Larry JOHNSON, Defendant-Appellee.
• Court: Court of Appeals of New Mexico

Page 341

915 P.2d 341

121 N.M. 585

Kathryn YOUNT, as mother and next friend of Matthew Monett, a minor, Plaintiff-Appellant, v. Larry JOHNSON, Defendant-Appellee.

No. 15792.

Court of Appeals of New Mexico.

March 26, 1996.

Appeal from the District Court of Dona Ana County; James T. Martin, District Judge.

Duhigg, Cronin & Spring, P.A., Paul S. Cronin and Helena Gorochow, Albuquerque, for Appellant.

Sager, Curran, Sturges & Tepper, P.C., Matthew P. Holt, Las Cruces, for Appellee.

OPINION

BOSSON, Judge.

1. While engaging in horseplay during high school, Defendant Larry Johnson, then age 17, injured Matthew Monett, age 15. Monett seeks to recover against Johnson for some or all of his damages under a theory of comparative negligence. The district court issued summary judgment against Monett, concluding that Johnson could be sued only for recklessness or intentional and wilful misconduct, but not for negligence. We are asked to decide whether, as a matter of policy, minors who engage in horseplay or similar activities have no duty of reasonable care to one another. On appeal, we hold that ordinary principles of comparative negligence do apply to the activities in question here and therefore, we reverse and remand.

FACTS

2. Monett and Johnson, both juniors in high school, were classmates in horticulture. On November 9, 1991, Monett, Johnson, and a third student went to the greenhouse to water the plants. On the way to the greenhouse, the three students began some gentle horseplay, tagging each other on the arm. The incident that injured Monett occurred during the next break between classes. Most of the horticulture students were standing around outside the classroom, some engaging in horseplay. While Johnson was talking to another student, Monett came up behind Johnson, put both his hands on Johnson's shoulders, shook him a little, and said "hey" or the like. Monett then turned around and started walking toward class. Not willing to leave it at that, Johnson grabbed Monett from behind and picked him up by putting Monett's legs under Johnson's right arm and Monett's head under Johnson's left arm. Johnson then spun Monett around once or twice, walked to a chain link fence and pushed Monett into the fence. When Monett complained that his back hurt, Johnson put him down. The incident seriously injured Monett's back. Although Monett's back was asymptomatic at the time of the incident, Monett suffered from a preexisting back condition, and had even worn a back brace to school the year before. Johnson testified he was unaware Monett had a back problem.

3. There is no evidence in the record that Johnson had ever before picked Monett up in this fashion and spun him around or pushed him into a fence. Although on previous occasions Monett and Johnson had engaged in nudging and shaking each other, Monett said that he would not have hit Johnson, because Johnson was bigger and "[t]hat's suicide." At the time, Monett, the younger of the two, weighed only 120 pounds. Monett conceded that he had participated before in horseplay with others, including pushing and punching on the arm in a playful manner.

DISCUSSION

4. In recent decades, our courts have moved forcefully towards a public policy that defines duty under a universal standard of ordinary care, a standard which holds all citizens accountable for the reasonableness of their actions. The movement has been away from judicially declared immunity or protectionism, whether of a special class, group or activity. The theme, constantly reiterated, is that " 'every person has a duty to exercise ordinary care for the safety of others.' " Lerma ex rel. Lerma v. State Highway Dep't, 117 N.M. 782, 784, 877 P.2d 1085, 1087 (1994) (quoting Knapp v. Fraternal Order of Eagles, 106 N.M. 11, 13, 738 P.2d 129, 131 (Ct.App.1987)); see also Dunleavy v. Miller, 116 N.M. 353, 357, 862 P.2d 1212, 1216 (1993). Our courts have rejected efforts to substitute a lesser duty, for example, by limiting accountability to acts of gross negligence, as opposed to reasonable and ordinary care. See Govich v. North Am. Sys., Inc., 112 N.M. 226, 233, 814 P.2d 94, 101 (1991); Scott v. Rizzo, 96 N.M. 682, 684, 634 P.2d 1234, 1236 (1981); see also Jennifer A. Noya, Note, The Application of the Rescue Doctrine Under Comparative Negligence Principles: Govich v. North American Systems, Inc., 23 N.M.L.Rev. 349 (1993).

5. As a corollary, we are also reminded of the "ameliorative principles of comparative negligence," Montoya v. AKAL Sec., Inc., 114 N.M. 354, 357, 838 P.2d 971, 974 (1992), which strongly favor letting a jury determine the relative accountability of our citizens for an injury. Comparative negligence 6. That same standard of ordinary care is easily applied to minors. The Uniform Jury Instruction on ordinary care of a minor, SCRA 1986, 13-1605 (Repl.1991), states:

[121 N.M. 587] has freed us from artificial doctrines of the past, such as contributory negligence as a total defense, last clear chance, sudden emergency, and open and obvious danger. See Scott, 96 N.M. at 684, 687, 634 P.2d at 1236, 1239 (adopting doctrine of comparative negligence in place of "all or nothing" rule of contributory negligence); Dunleavy, 116 N.M. at 359, 862 P.2d at 1218 (abolishing instruction on sudden emergency doctrine); Klopp v. Wackenhut Corp., 113 N.M. 153, 159, 824 P.2d 293, 299 (1992) (disapproving instruction on open and obvious danger doctrine as inappropriate under principles of comparative negligence). Today, courts are less often compelled to direct the jury's work, or short-circuit it altogether, by imposing upon the jury the judicial assumptions about human behavior that underlie those doctrines. Comparative fault "provides the means for more subtle adjustments" by the jury in evaluating the vicissitudes of human behavior. 4 Fowler V. Harper, Fleming James, Jr. & Oscar S. Gray, The Law of Torts § 21.1 n. 14, at 204 (2d ed. 1986) [hereinafter Harper & James]. Under the doctrine of comparative negligence, the fact finder has the responsibility of determining whether the parties adhered to a standard of ordinary care and the percentage, if any, of comparative fault. Similarly, the jury is permitted to perform complicated tasks such as comparing the simple negligence of one party with the intentional or reckless conduct of another. See Reichert v. Atler, 117 N.M. 623, 626, 875 P.2d 379, 382 (1994); Lerma, 117 N.M. at 784-85, 877 P.2d at 1087-88.

A person under 18 years of age is not necessarily held to the same standard of conduct as an adult. By the term "ordinary care" with respect to a minor, I mean that degree of care which a reasonably careful minor of the age, mental capacity and experience of [the defendant] would use under circumstances similar to those shown by the evidence in this case.

For decades, our courts have used similar instructions to guide juries sitting in judgment of minors. See Lerma, 117 N.M. at 785, 877 P.2d at 1088; Martinez v. C.R. Davis Contracting Co., 73 N.M. 474, 477, 389 P.2d 597, 598-99 (1964); Thompson v. Anderman, 59 N.M. 400, 415-16, 285 P.2d 507, 516-17 (1955); Restatement (Second) of Torts § 283A (1965). We have applied this same standard of ordinary care to assess the negligence of a seven-year-old child. See Phillips v. Smith, 87 N.M. 19, 21, 528 P.2d 663, 665 (Ct.App.) ("Questions of negligence or contributory negligence on the part of children are not usually susceptible of summary judgment ... or ... determination as a matter of law because the test is a subjective one which depends upon the particular child's age, mental capacity and experience."), cert. denied, 87 N.M. 5, 528 P.2d 649 (1974), overruled on other grounds by Baxter v. Gannaway, 113 N.M. 45, 48, 822 P.2d 1128, 1131 (Ct.App.), cert. denied, 113 N.M. 16, 820 P.2d 1330 (1991). But cf. Frei v. Brownlee, 56 N.M. 677, 248 P.2d 671 (1952) (per curiam) (five-year-old child too young for such a standard). We have also applied the standard to a teenager engaged in the reckless conduct of playing Russian roulette with a loaded gun. See LaBarge v. Stewart, 84 N.M. 222, 225-26, 501 P.2d 666, 669-70 (Ct.App.), cert. denied, 84 N.M. 219, 501 P.2d 663 (1972).

7. Our courts recognize that minors need some degree of special consideration. In this fashion, minors are afforded a more subjective standard of care, one which takes into account their particular age, mental capacity, and experience. But children--young and old--are held accountable for their actions; that is the point. Our law is already well-endowed with the wisdom and experience to treat youthful defendants fairly, taking into consideration the special features that render them not yet adults.

8. We are not struck by any compelling reason to make a special exception for Johnson's horseplay. If anything, Johnson's "age, mental capacity and experience" point in the other direction--toward full accountability as an adult. In terms of the real world, Johnson is no longer a child. As a young man of seventeen, he should be encouraged to assume 9. Despite these abiding principles, Johnson would have us carve out an immunity so that no jury may sit in judgment of him under a standard of ordinary care. He would not have to answer for negligence, only recklessness or intentional and wilful acts. Johnson would have us establish this precedent even though the result may be serious or catastrophic injury to the victim.

[121 N.M. 588] greater, not fewer, responsibilities of manhood. A cursory review of our laws remind us what we know from experience: a seventeen-year-old young man or woman is no longer a child in the eyes of the law. At seventeen, Johnson can drive a car and be held accountable for his actions as an adult. See NMSA 1978, § 66-5-5 (Repl.Pamp.1994); Adams v. Lopez, 75 N.M. 503, 506-07, 407 P.2d 50, 51-52 (1965). With a permit, he can carry and discharge a deadly weapon. See NMSA 1978, § 17-2-33 (Repl.Pamp.1995). He may no longer be protected in...