3 Week 2 Breach in particular circumstances 3 Week 2 Breach in particular circumstances
3.1 Robinson v. Lindsay 3.1 Robinson v. Lindsay
Page 410
minor, Respondent,
v.
John LINDSAY and Jane Doe Lindsay, husband and wife, Appellants,
Robert Anderson and Jane Doe Anderson, husband and wife, and
Billy Anderson, Petitioners.
Huppin, Ewing, Anderson & Hergert, Robert F. Ewing, Spokane, for petitioners.
Page 411
Malott & Southwell, Robert Southwell, Spokane, for respondent.
UTTER, Chief Justice.
An action seeking damages for personal injuries was brought on behalf of Kelly Robinson who lost full use of a thumb in a snowmobile accident when she was 11 years of age. The petitioner, Billy Anderson, 13 years of age at the time of the accident, was the driver of the snowmobile. After a jury verdict in favor of Anderson, the trial court ordered a new trial.
The single issue on appeal is whether a minor operating a snowmobile is to be held to an adult standard of care. The trial court failed to instruct the jury as to that standard and ordered a new trial because it [598 P.2d 393] believed the jury should have been so instructed. We agree and affirm the order granting a new trial.
The trial court instructed the jury under WPI 10.05 that:
In considering the claimed negligence of a child, you are instructed that it is the duty of a child to exercise the same care that a reasonably careful child of the same age, intelligence, maturity, training and experience would exercise under the same or similar circumstances.
Respondent properly excepted to the giving of this instruction and to the court's failure to give an adult standard of care.
The question of what standard of care should apply to acts of children has a long historical background. Traditionally, a flexible standard of care has been used to determine if children's actions were negligent. Under some circumstances, however, courts have developed a rationale for applying an adult standard.
In the courts' search for a uniform standard of behavior to use in determining whether or not a person's conduct has fallen below minimal acceptable standards, the law has developed a fictitious person, the "reasonable man of ordinary prudence." That term was first used in Vaughan v. Menlove, 132 Eng.Rep. 490 (1837).
Page 412
Exceptions to the reasonable person standard developed when the individual whose conduct was alleged to have been negligent suffered from some physical impairment, such as blindness, deafness, or lameness. Courts also found it necessary, as a practical matter, to depart considerably from the objective standard when dealing with children's behavior. Children are traditionally encouraged to pursue childhood activities without the same burdens and responsibilities with which adults must contend. See Bahr, Tort Law and the Games Kids Play, 23 S.D.L.Rev. 275 (1978). As a result, courts evolved a special standard of care to measure a child's negligence in a particular situation.
In Roth v. Union Depot Co., 13 Wash. 525, 43 P. 641 (1896), Washington joined "the overwhelming weight of authority" in distinguishing between the capacity of a child and that of an adult. As the court then stated, at page 544, 43 P. at page 647:
(I)t would be a monstrous doctrine to hold that a child of inexperience and experience can come only with years should be held to the same degree of care in avoiding danger as a person of mature years and accumulated experience.
The court went on to hold, at page 545, 43 P. at page 647:
The care or caution required is according to the capacity of the child, and this is to be determined, ordinarily, by the age of the child.
". . . a child is held . . . only to the exercise of such degree of care and discretion as is reasonably to be expected from children of his age."
The current law in this state is fairly reflected in WPI 10.05, given in this case. In the past we have always compared a child's conduct to that expected of a reasonably careful child of the same age, intelligence, maturity, training and experience. This case is the first to consider the question of a child's liability for injuries sustained as a result of his or her operation of a motorized vehicle or participation in an inherently dangerous activity.
Courts in other jurisdictions have created an exception
Page 413
to the special child standard because of the apparent injustice that would occur if a child who caused injury while engaged in certain dangerous activities were permitted to defend himself by saying that other children similarly situated would not have exercised a degree of care higher than his, and he is, therefore, not liable for his tort. Some courts have couched the exception in terms of children engaging in an activity which is normally one for adults only. See, e. g., Dellwo v. Pearson, 259 Minn. 452, 107 N.W.2d 859 (1961) (operation of a motorboat). We believe a better rationale is that when the activity a child engages in is inherently dangerous, as is the operation of powerful [598 P.2d 394] mechanized vehicles, the child should be held to an adult standard of care.
Such a rule protects the need of children to be children but at the same time discourages immature individuals from engaging in inherently dangerous activities. Children will still be free to enjoy traditional childhood activities without being held to an adult standard of care. Although accidents sometimes occur as the result of such activities, they are not activities generally considered capable of resulting in "grave danger to others and to the minor himself if the care used in the course of the activity drops below that care which the reasonable and prudent adult would use . . ." Daniels v. Evans, 107 N.H. 407, 408, 224 A.2d 63, 64 (1966).
Other courts adopting the adult standard of care for children engaged in adult activities have emphasized the hazards to the public if the rule is otherwise. We agree with the Minnesota Supreme Court's language in its decision in Dellwo v. Pearson, supra, 259 Minn. at 457-58, 107 N.W.2d at 863:
Certainly in the circumstances of modern life, where vehicles moved by powerful motors are readily available and frequently operated by immature individuals, we should be skeptical of a rule that would allow motor vehicles to be operated to the hazard of the public with less than the normal minimum degree of care and competence.
Page 414
Dellwo applied the adult standard to a 12-year-old defendant operating a motor boat. Other jurisdictions have applied the adult standard to minors engaged in analogous activities. Goodfellow v. Coggburn, 98 Idaho 202, 203-04, 560 P.2d 873 (1977) (minor operating tractor); Williams v. Esaw, 214 Kan. 658, 668, 522 P.2d 950 (1974) (minor operating motorcycle); Perricone v. DiBartolo, 14 Ill.App.3d 514, 520, 302 N.E.2d 637 (1973) (minor operating gasoline-powered minibike); Krahn v. LaMeres, 483 P.2d 522, 525-26 (Wyo.1971) (minor operating automobile). The holding of minors to an adult standard of care when they operate motorized vehicles is gaining approval from an increasing number of courts and commentators. See generally Comment, Capacity of Minors to be Chargeable with Negligence and Their Standard of Care, 57 Neb.L.Rev. 763, 770-71 (1978); Comment, Recommended: An Objective Standard of Care for Minors in Nebraska, 46 Neb.L.Rev. 699, 703-05 (1967).
The operation of a snowmobile likewise requires adult care and competence. Currently 2.2 million snowmobiles are in operation in the United States. 9 Envir.Rptr. (BNA) 876 (1978 Current Developments). Studies show that collisions and other snowmobile accidents claim hundreds of casualties each year and that the incidence of accidents is particularly high among inexperienced operators. See Note, Snowmobiles A Legislative Program, 1972 Wis.L.Rev. 477, 489 n. 58.
At the time of the accident, the 13-year-old petitioner had operated snowmobiles for about 2 years. When the injury occurred, petitioner was operating a 30-horsepower snowmobile at speeds of 10-20 miles per hour. The record indicates that the machine itself was capable of 65 miles per hour. Because petitioner was operating a powerful motorized vehicle, he should be held to the standard of care and conduct expected of an adult.
Page 415
The order granting a new trial is affirmed.
ROSELLINI, STAFFORD, WRIGHT, BRACHTENBACH, HOROWITZ, DOLLIVER and HICKS, JJ., and RYAN, J. Pro Tem., concur.
3.2 Poynter v Loftus 3.2 Poynter v Loftus
f Appeals
Helen Loftus, et al., Appellees.
Argued March 31, 1997. Decided May 8, 1997.
Andrea L. Koyner, Arlington, VA, with whom Judy L. Feinberg was on the brief, for appellant.
William J. Carter, Washington, DC, with whom Clifton B. Welch was on the brief, for appellees.
Before FERREN and SCHWELB, Associate Judges, and MACK, Senior Judge.
SCHWELB, Associate Judge:
This action for personal injuries was brought by William J. Poyner, who is legally blind, after he fell from an elevated walkway. The trial judge granted summary judgment [*70] in favor of the defendants, concluding that Mr. Poyner was contributorily negligent as a matter of law. On appeal, Mr. Poyner contends that, in light of his handicap, a genuine issue of material fact existed as to whether he exercised reasonable care, and that the entry of summary judgment was therefore erroneous. We affirm.
I.
The essential evidentiary facts are undisputed. Mr. Poyner suffers from glaucoma and retrobulbar neuritis. He testified that he is able to see approximately six to eight feet in front of him. Notwithstanding his handicap, Mr. Poyner does not use a cane or a seeing eye dog in pursuing his daily activities.
On August 24, 1993, Mr. Poyner was proceeding from his home to Parklane Cleaners, a dry cleaning establishment located on the west side of the 4300 block of Connecticut Avenue, N.W. in Washington, D.C. The entrance to Parklane Cleaners is adjacent to an inclined platform which is located approximately four feet above street level. Mr. Poyner testified that he had walked by the area on three or four previous occasions, and that he was aware of the general layout. He stated that there were bushes along the edge of the platform, and that these bushes provided a natural barrier which would prevent him from falling if he attempted to walk too far. On the day of the accident, however, and unbeknownst to Mr. Poyner, one of the bushes was missing, and there was thus nothing to restrain him from falling off the platform.
Mr. Poyner testified that as he was walking along the elevated area, he heard someone call "Billy!" from Connecticut Avenue. He turned his head to the right, but continued to walk forward to the location at the end of the platform where he thought that a bush would be. There was no bush, however, and Mr. Poyner fell, suffering personal injuries.
Mr. Poyner brought suit against several defendants, including the owners of the building, the property manager in charge of its maintenance, and the proprietor of Parklane Cleaners. After the parties had conducted discovery, the defendants moved for summary judgment, contending, inter alia, that Mr. Poyner had been contributorily negligent as a matter of law. The trial judge granted the motion, and she stated her reasons, in pertinent part, as follows:
Here we have, while some facts are in dispute, no dispute as to what the court views as the really operative and important facts relating to how this incident occurred. Here we have a plaintiff who is partially visually impaired, legally blind, who can see some in front of him and gets about without the assistance of any mechanical or other disability aids.
He was aware, as he was approaching this area to enter the cleaners, that he was on an elevated surface. He was not paying full attention, having been distracted by a call from someone out in the street. And according to the plaintiff's own testimony at his deposition, [he] continued to proceed forward and went over the edge into the lowerfalling from the part where the bushes were, into the lower stairwell, and sustained injuries.
Mr. Poyner's actions, in the court's judgment, clearly violate an objective reasonableness standard.... [N]o reasonable jurors could conclude that the plaintiff was not negligent when he continued to walk on an elevated surface with limited vision while his head was turned away from the direction of his travel in an area in which he was not very familiar.
II.
In order to be entitled to summary judgment, the defendants were required to demonstrate that there was no genuine issue of material fact and that they were entitled to judgment as a matter of law. Super Ct. Civ. R. 56(c); Colbert v. Georgetown Univ., 641 A.2d 469, 472 (D.C.1994) (en banc). In reviewing an order granting summary judgment, we must view the record in the light most favorable to the party opposing the motion. Id . Summary judgment is properly granted, however, where the record would not permit an impartial jury, acting reasonably, to return a verdict in the nonmoving [*71] party's favor. Anderson v. Liberty Lobby, 477 U.S. 242, 252 , 106 S.Ct. 2505, 2512 , 91 L.Ed.2d 202 (1986).
Ordinarily, questions of negligence and contributory negligence must be decided by the trier of fact. Washington v. A. & H. Garcias Trash Hauling Co., 584 A.2d 544, 545 (D.C.1990). A party asserting the defense of contributory negligence is required to establish, by a preponderance of the evidence, that the plaintiff failed to exercise reasonable care. Singer v. Doyle, 236 A.2d 436, 438 (D.C.1967). "Only in the exceptional case is evidence so clear and unambiguous that contributory negligence should be found as a matter of law." Tilghman v. Johnson, 513 A.2d 1350, 1351 (D.C.1986) (citations omitted). The issue of contributory negligence should not be submitted to the jury, however, where the evidence, taken in the light most favorable to the plaintiff, establishes contributory negligence so clearly that no other inference can reasonably be drawn. See District of Columbia v. Brown, 589 A.2d 384, 387-88 (D.C.1991) (citations omitted).
The trial judge concluded that this was one of those rare cases in which contributory negligencea defense with respect to which the defendants had the burden of proofhad been established as a matter of law. We agree. Indeed, we are satisfied, as was the trial judge, that Mr. Poyner's own testimony established that he did not exercise reasonable care and that his own contributory negligence proximately caused the accident.
It is undisputed that, at the time of the accident, a shrub at the end of the elevated platform was missing. A photograph which is a part of the record demonstrates that this was readily apparent, at least to any sighted person who chose to look. "[A] person must see what is reasonably there to be seen." Jackson v. Schenick, 174 A.2d 353, 355 (D.C.1961) (citation omitted). A plaintiff has not exercised due care if he has "failed either to look at all or to look observantly and see what should have been plainly visible." Singer, supra , 236 A.2d at 438 .1 In this case, Mr. Poyner acknowledged that his attention was distracted when someone called his name, and that he turned his head to the right, but continued to walk forward. At the critical moment, according to his own testimony, Mr. Poyner, who could see six to eight feet in front of him and was aware of his handicap, did not look where he was going. We agree with the trial judge that this constituted contributory negligence and that no impartial jury could reasonably find otherwise.
III.
Mr. Poyner argues, however, that he is not a sighted person, and that "it is reasonable for a legally blind person ... as a response to his name being called, [to] turn towards the direction of his caller, reach for the handle and continue his step towards the door." (Emphasis added.) He claims that those actions "do not constitute contributory negligence." He contends, in other words, that on account of his visual impairment, his conduct should be tested against a different standard of care.
The parties have cited no authority on this issue, and we have found no applicable case law in the District of Columbia. The precedents in other jurisdictions, however, support affirmance of the trial court's order. "It seems to be the general rule that a blind or otherwise handicapped person, in using the public ways, must exercise for his own safety due care, or care commensurate with the known or reasonably foreseeable dangers. Due care is such care as an ordinarily prudent person with the same disability would exercise under the same or similar circumstances." Cook v. City of Winston-Salem, 241 N.C. 422 , 85 S.E.2d 696, 700-01 (1955) (citing, inter alia, Keith v. Worcester & Blackstone Valley St. Ry. Co., 196 Mass. 478 , 82 N.E. 680 (1907)). As the court explained in Keith, however,
it is also correct to say that in the exercise of common prudence one of defective eyesight must usually as a matter of general [*72] knowledge take more care and employ keener watchfulness in walking upon the streets and avoiding obstructions than the same person with good eyesight, in order to reach the standard established by the law for all persons alike, whether they be weak or strong, sound or deficient.
Id., 82 N.E. at 681 ; see also Cook, supra , 85 S.E.2d at 701 (quoting Keith).
In Smith v. Sneller, 345 Pa. 68 , 26 A.2d 452 (1942), the Supreme Court of Pennsylvania considered a situation similar to the one before us, and its disposition is instructive. Sneller, a plumbing contractor, had removed a portion of the sidewalk and had dug a trench in order to make a sewer connection. On the north side of the trench, Sneller constructed a barricade. On the south side, however, Sneller simply left a pile of earth two feet high. The plaintiff, Smith, was walking north along the sidewalk towards the trench. As a result of defective eyesight, he failed to see the pile of earth. Mr. Smith fell into the trench, and sustained personal injuries. A jury returned a verdict in his favor.
The intermediate appellate court expressed sympathy for Mr. Smith "in his effort to make a living in spite of his physical handicap," but nevertheless felt constrained to reverse the decision and enter judgment n.o.v. in Sneller's favor. Smith appealed to the Pennsylvania Supreme Court, which affirmed the judgment. Noting that Mr. Smith's vision was so defective that he could not see a dangerous condition immediately in front of him, and that the accident could have been avoided if he had used "one of the common well-known compensatory devices for the blind, such as a cane, a 'seeing eye' dog, or a companion," the court concluded:
Plaintiff's conduct was not equal to the degree of care required of him. The Superior Court very properly said: "A blind man may not rely wholly upon his other senses to warn him of danger but must use the devices usually employed, to compensate for his blindness. Only by so doing can he go about with comparative safety to himself." We are in accord with that learned court, that plaintiff was guilty of contributory negligence as a matter of law, and we must, therefore, affirm the judgment.
26 A.2d at 454 .
The reasoning of the court in Smith applies equally to the present case. Here, as in Smith, the plaintiff was walking alone, and he did not use a guide dog or a cane. As a result, he fell from the walkway. Indeed, the evidence of contributory negligence is stronger here than in Smith, for Mr. Poyner, who could see six to eight feet in front of him, acknowledged that, at the moment that he fell, he was not looking where he was going.
In Coker v. McDonald's Corp., 537 A.2d 549 (Del.Super.1987), the legally blind plaintiff was walking to the entrance of a McDonald's restaurant from the parking lot. Unlike the plaintiffs in Smith and in the present case, however, she was carrying a cane in her right hand, and she was holding on to a companion with her left hand. Ms. Coker lost her balance while attempting to navigate around an obstruction, and she sustained injuries. The defendant claimed that the obstruction was "open and obvious," and that the plaintiff was contributorily negligent as a matter of law. The court disagreed:
A blind person is not bound to discover everything which a person of normal vision would. He is bound to use due care under the circumstances. Due care for a blind person includes a reasonable effort to compensate for his unfortunate affliction by use of artificial aids for discovery of obstacles in his path. When an effort in this direction is made, it will ordinarily be a jury question whether or not such effort was a reasonable one.... [W]hat is an open and obvious condition to a blind person depends upon what, if any, tools or aids the blind person utilizes to discover the condition, and the degree to which such aids are used. The ordinary, prudent blind person who is reasonably using a cane, dog, or the guidance of her companions should discover open and obvious conditions to the extent these aids permit. Here, the plaintiff was using her cane and companions for guidance. Whether this attempt to compensate for her blindness was reasonable under the circumstances is a jury question.
[*73] Id. at 550-51 (emphasis in original) (citations and internal quotation marks omitted). Characterizing the issue presented as being whether Ms. Coker acted reasonably under the circumstances, the court concluded that "[w]here the blind plaintiff is not using any aid, ... as in Smith v. Sneller, supra , a court could rule as a matter of law that the plaintiff was contributorily negligent." Id. at 551 . Because Ms. Coker was using two different aids, howeverthe cane and the companionthe question of contributory negligence was for the jury, and the defendant was not entitled to summary judgment. Id.
We agree with the analysis of the courts both in Smith v. Sneller and in Coker. Like the plaintiff in Smith, but unlike the plaintiff in Coker, Mr. Poyner was alone, and he used neither a cane nor a seeing eye dog. He also looked away at the critical moment. Under these circumstances, he was contributorily negligent as a matter of law, and summary judgment was properly granted.
Affirmed.
fn
1. Singer involved an automobile accident, but the point made by the court applies with equal force to the situation before us.