132 Eng. Rep. 490

VAUGHAN

v.

MENLOVE.

Jan. 23, 1837.

[S. C. 4 Scott, 244; 3 Hodges, 51; 6 L.J. C.P. 92; 1 Jur. 215: at Nisi Prius, 7 Car. & P. 525.]

An action lies against a party for so negligently constructing a hay-rick on the extremity of his land, that in consequence of its spontaneous ignition, his neighbour's house is burnt down. And upon pleas of not guilty, and that there was no negligence, held, that it was properly left to the jury to say whether the Defendant had been guilty of gross negligence, viewing his conduct with reference to the caution that a prudent man would have observed.

The declaration stated, that before and at the time of the grievance and injury, hereinafter mentioned, certain premises, to wit, two cottages with the appurtenances situate in the county of Salop, were respectively in the respective possessions and occupations of certain persons as tenants thereof to the Plaintiff, to wit, one thereof in the possession and occupation of one Thomas Ruscoe as tenant thereof to the Plaintiff, the reversion of and in the same with the appurtenances then belonging to the Plaintiff, and the other thereof in the possession and occupation of one Thomas Bickley as tenant thereof to the Plaintiff, the reversion of and in the same with the appurtenances then belonging to the Plaintiff: that the Defendant was then possessed of a certain close near to the said cottages, and of certain buildings of wood and thatch, [132 Eng. Rep. 491] also near to the said cottages; and that the Defendant was then also possessed of a certain rick or stack of hay before then heaped, stacked, or put together, and then standing, and being in and upon the said close of the Defendant. That on the 1st of August 1835, while the said cottages so were in the occupation of the said tenants, and while the reversion thereof respectively so belonged to the Plaintiff' as aforesaid, the said rick or stack of hay of the Defendant was liable and likely to ignite, take fire, and break out into a flame, and there had appeared, and were just grounds to apprehend and believe that the same would ignite, take fire, and break out into a flame; and by reason of such liability, and of the state and condition of the said rick or stack of hay, the same then was and continued dangerous to the said cottages; of which said several pre [3 Bing (N. C.) 469] mises the Defendant then had notice: yet the Defendant well knowing the premises, but not regarding his duty in that behalf, on, &c., and from thence until and upon a certain day, to wit, on, &c. wrongfully negligently, and improperly, kept and continued the said rick or stack of hay, so likely and liable to ignite and take fire, and in a state and condition dangerous to the said cottages, although he could, and might, and ought to have remove and altered the same, so as to prevent the same from being and continuing so dangerous as aforesaid; and by reason thereof the said cottages for a long time, to wit, during all the time aforesaid, were in great danger of being consumed by fire. That by reason of the premises, and of the carelessness, negligence, and improper conduct of the Defendant, in so keeping and continuing the said rick or stack, in a state or condition so dangerous as aforesaid, and so liable and likely to ignite and take fire and break out into flame, on, &c., and while the said cottages so were occupied as aforesaid, and the reversion thereof respectively so belonged to the Plaintiff; the said rick or stack of hay of the Defendant, standing in the close of the Defendant, and near the said c:ottages, did ignite, take fire, and break out into flame, and by fire and flame thence issuing and arising, the said standing of the Defendant so being of wood and thatch as aforesaid, and so being near to the said rick or stack as aforesaid, were set on fire; and thereby and by reason of the carelessness, negligence, and improper conduct of the Defendant, in so keeping and continuing the said rick or stack in such condition as aforesaid, fire and flame so, occasioned as aforesaid by the igniting and breaking out into flame, of the said rick or stack, was thereupon then communicated unto the said cottages in which the Plaintiff was interested as aforesaid, which were thereby then respectively set on fire, and then, to wit on, &c., by reason of such [3 Bing (N. C.) 470] carelessness, negligence, and improper conduct of the Defendent in so continuing the said rick or stack in such a dangerous condition as aforesaid, in manner aforesaid, were consumed, damaged, and wholly destroyed, the cottages being of great value, to wit, the value of 5001. And by means of the premises, the Plaintiff was greatly and permanently injured in his said reversionary estate and interest of and in each of them; to the Plaintiff's damage of 5001.

The Defendant pleaded, first, not guilty. Secondly, that the said rick or stack of hay was not likely to ignite, take fire, and break out into flame; nor was the same by reason of such liability, and of the state or condition of the said rick and stack of hay, dangerous to the said cottages; nor had the Defendant notice of the said premises, in manner and form as the Plaintiff had in and by his declaration in that behalf alleged. Thirdly, that the Defendant did not, well knowing the premises in the declaration in that behalf mentioned, wrongfully, negligently, or improperly, keep or continue the said rick or stack of hay, in a state and condition dangerous to the said cottages. Fourthly, that the said rick or stack of hay, did not by reason of the carelessness, negligence and improper conduct of the Defendant in that behalf, ignite, take fire, and break out in flame. And fifthly, that the said cottages were not consumed, damaged, and destroyed by reason of the carelessness, negligence, and improper conduct of the Defendant.

At the trial it appeared that the rick in question had been made by the Defendant near the boundary of his own premises; that the hay was in such and state when put together, as to give rise to discussions on the probability of fire: that though there were conflicting opinions on the subject, yetduring a period of five weeks, the Defendant was repeatedly warned of his [3 Bing (N. C.) 471] peril; that his stock was insured; and that upon one Occasion, being advised to take the rick down to avoid all danger, he said “he would chance it.” He made an aperture or chimney through the rick; but in spite, or perhaps in consequence of this precaution, the rick at length burst into flames from the spontaneous heating of its materials; the flames communicated to [132 Eng. Rep. 492] the Defendant's barn and stables, and thence to the Plaintiff's cottages, which were entirely destroyed.

Patteson J. before whom the cause was tried, told the jury that the question for them to consider, was, whether the fire had been occasioned by gross negligence on the part of the Defendant; adding, that he was bound to proceed with such reasonable caution as a prudent man would have exercised under such circumstances.

A verdict having been found for the Plaintiff, a rule nisi for a new trial was obtained, on the ground that the jury should have been directed to consider, not, whether the Defendant had been guilty of gross negligence with reference to the standard of ordinary prudence, a standard too uncertain to afford any criterion; but whether he had acted bona fide to the best of his judgment; if he had, he ought not to be responsible for the misfortune of not possessing the highest order of intelligence. The action under such circumstances, was of the first impression.

Talfourd Serjt. and Whately, shewed cause.

The pleas having expressly raised issues on the negligence of the Defendant, the learned Judge could not do otherwise than leave that question to the jury. The declaration alleges that the Defendant knew of the dangerous state of the rick, and yet negligently and improperly allowed it to stand. The plea of not guilty, therefore, puts in issue the scienter, it being of the sub [Bing (N. C.) 472] stance of the issue; Thomas v. Morgan (2 Cr. M. & U. 496). And the action, though new in specie, is founded on a principle fully established, that a man must so use his own property as not to injure that of others. On the same circuit a defendant was sued a few years ago, for burning weeds so near the extremity of his own land as to set fire to and destroy his neighbors’ wood. The plaintiff recovered damages, and no motion was made to set aside the verdict. Then, there were no means of estimating the defendant's negligence, except by taking as a standard, the conduct of a man of ordinary prudence: that has been the rule always laid clown, and there is no other that would not be open to much greater uncertainties.

R V. Richards, in support of the rule.

First, there was no duty imposed on the Defendant, as there is on carriers or other bailees, under an implied contract, to be responsible for the exercise of any given degree of prudence: the Defendant had a right to place his stack as near to the extremity of his own land as he pleased; Wyatt v. Harrison (3 B. & Adol. 871): under that right, and subject to no contract, he can only be called on to act bona fide to the best of his judgment: if he has clone that, it is a contradiction in terms, to inquire whether or not he has been guilty of gross negligence. At all events what would have been gross negligence ought to be estimated by the faculties of the individual, and not by those of other men. The measure of prudence varies so with the varying faculties of men, that it is impossible to say what is gross negligence with reference to the standard of what is called ordinary prudence. In Crook v. Jadis (5 B. & Adol. 910), Patteson J. says, "I never could understand [Bing (N. C.) 473]what is meant by parties taking a bill under circumstances which ought to have excited the suspicion of a prudent man:" and Taunton J., “I cannot estimate the degree of care which a prudent man should take.”

In Foster v. Pearson too, (1 C. M. & H. 855) it appears that the rule which called on persons taking negotiable instruments to act with the circumspection of a prudent man, has at length been abandoned. There, the judge left it to the jury to say whether the holder of bills took them with due care and caution in the ordinary course of business; and upon a motion to set aside a verdict for the plaintiff, the Court said: “Of the mode in which the question was left, the defendant has certainly no right to complain; but, if the verdict had been in his favour, it would have become necessary to consider whether the learned Judge was correct in adopting the rule first laid down by the Court of Common Pleas, in the case of Snow v. Peacock (3 Bingh. 406), and which was founded upon the dicta, rather than the decision, of the judges of the King's Bench in the case of Gill v. Cubitt (5 D. & R. 324. 3 B. & C. 466); more especially since the opinion of the latter court has been so strongly intimated in the late cases of Crook v. Jadis (3 N. & M. 257) and Backhouse v. Harrison (ibid. 188). The rule of law was long considered as being firmly established, that the holder of bills of exchange indorsed in blank or other negotiable securities transferable by delivery, could give a title which he himself did not possess to a bona fide holder for value; and it may well be questioned whether it has been wisely departed from in the case to which reference has been made, and other subsequent cases in which care and caution in the taker of [132 Eng. Rep. 493] such securities has been treated as essential to the validity of his title, besides, and independently of, honesty of purpose.”

[Bing (N. C.) 474] TINDAL C.J.

I agree that this is a case primæ impressionis; but I feel no difficulty in applying to it the principles of law as laid down in other cases of a similar kind. Undoubtedly this is not a case of contract, such as abailment or the like where the bailee is responsible in consequence of the remuneration he is to receive: but there is a rule of law which says you must so enjoy your own property as not to injure that of another; and according to that rule the Defendant is liable for the consequence of his own neglect: and though the Defendant did not himself light the fire, yet mediately, he is as much the cause of it as if he had himself put a candle to the rick; for it is well known that hay will ferment and take fire if it be not carefully stacked. It has been decided that if an occupier burns weeds so near the boundary of his own land that damage ensues to the property of his neighbour, he is liable to an action for the amount of injury done, unless the accident were occasioned by a sudden blast which he could not forsee: Turbervill v. Stamp (1 Salk. 13). But put the case of a chemist making experiments with ingredients, singly innocent, but when combined, liable to ignite; if he leaves them together, and injury is t hereby occasioned to the property of his neighbour, can anyone doubt that an action on the case would lie?

It is contended, however, that the learned Judge was wrong in leaving this to the jury as a case of gross negligence, and that the question of negligence was so mixed up with reference to what would be the conduct of a man of ordinary prudence that the jury might have thought the latter the rule by which they were to decide; that such a rule would be too uncertain to act upon; and that the question ought to have been whether the Defendant had acted honestly and bona fide to the best of his own judgment. That, [Bing (N. C.) 475] however, would leave so vague a line as to afford no rule at all, the degree of judgment belonging to each individual being infinitely various: and though it has been urged that the care which a prudent man would take, is not an intelligible proposition as a rule of law, yet such has always been the rule adopted in cases of bailment, as laid down in Coggs. v. Bernard (2 Ld. Raym. 909). Though in some cases a greater degree of care is exacted than in others, yet in “the second sort of bailment, viz. commodatum or lending gratis, the borrower is bound to the strictest care and diligence to keep the goods so as to restore them hack again to the lender; because the bailee has a benefit by the use of them, so as if the bailee he guilty of the least neglect he will be answerable; as if a man should lend another a horse to go westward, or for a month; if the bailee put this horse in his stable, and he were stolen from thence, the bailee shall not be answerable for him: but if he or his servant leave the house or stable doors open and the thieves take the opportunity of that, and steal the horse, he will be chargeable, because the neglect gave the thieves the occasion to steal the horse.” The care taken by a prudent man has always been the rule laid down; and as to the supposed difficulty of applying it, a jury has always been able to say, whether, taking that rule as their guide, there has been negligence on the occasion in question.

Instead, therefore, of saying that the liability for negligence should be co-extensive with the judgment of each individual, which would be as variable as the length of the foot of each individual, we ought rather to adhere to the rule which requires in all cases a regard to caution such as a man of ordinary prudence would observe. [Bing (N. C.) 476] That was in substance the criterion presented to the jury in this case, and therefore the present rule must be discharged.

PARK J.

I entirely concur in what has fallen from his Lordship. Although the facts in this case are new in specie, they fall within a principle long established, that a man must so use his own property as not to injure that of others. In Tubervill v. Stamp (1 Salk. 13), which was “an action on the case upon the custom of the realm, quare negligenter custodivit ignem suum in clauso suo, ita quod per flammas blade Quer. in quodam clauso ipsius Quer. combusta fuerunt; after verdict pro Quer. it was objected that the custom extended only to fire in his house, or curtilage (like goods of guests) which were in his power: Non alloc. For the fire in his field was his fire as well as that in his house; he made it, and must see that it did no harm, and must answer the damage if he did. Every man must use his own so as not to hurt another: but if a sudden storm had risen which he could not stop, it was matter of evidence, and he should have shewn it. And Holt, and Rokesby, and Eyre were against the [132 Eng. Rep.494] opinion of Turton, who went upon the difference between fire in a house which was in a man's custody and power, and fire in a field which was not properly so; and that it would discourage husbandry, it being usual for farmers to burn stubble, &c. But the Plaintiff had judgment according to the opinion of the other three." That case, in its principles, applies closely to the present.

As to the direction of the learned Judge, it was perfectly correct. Under the circumstances of the case it was proper to leave it to the jury whether with reference to the caution which would have been observed by [Bing (N. C.) 477]a man of ordinary prudence, the Defendant had not been guilty of gross negligence. After he had been warned repeatedly during five weeks as to the consequences likely to happen, there is no colour for altering the verdict, unless it were to increase the damages.

GASELEE J. concurred in discharging the rule.

VAUGHAN J.

The principle on which this action proceeds, is by no means new. It has been urged that the Defendant in such a case takes no duty on himself; but I do not agree in that position: every one takes upon himself the duty of so dealing with his own property as not to injure the property of others. It was, if any thing, too favourable to the Defendant to leave it to the jury whether he had been guilty of gross negligence; for when the Defendant upon being warned as to the consequences likely to ensue from the condition of the rick, said, "he would chance it," it was manifest he adverted to his interest in the insurance office. The conduct of a prudent man has always been the criterion for the jury in such cases: but it is by no means confined to them. In insurance cases, where a captain has sold his vessel after damage too extensive for repairs, the question has always been, whether he had pursued the course which a prudent man would have pursued under the same circumstance. Here, there was not a single witness whose testimony did not go to establish gross negligence in the Defendant. He had repeated warnings of what was likely to occur, and the whole calamity was occasioned by his procrastination.

Rule discharged.

269 Kan. 420
7 P.3d 1163

SARAH WOOD, LINDA WOOD, and WARREN WOOD, Appellants/Cross-appellees,
v.
DERRY GROH and CHOON GROH, Appellees/Cross-appellants.

No. 81,826.

Supreme Court of Kansas.

Opinion filed June 9, 2000.

[269 Kan. 421] David R. Cooper, of Fisher, Patterson, Sayler & Smith, L.L.P., of Topeka, argued the cause, and David P. Madden, of the same firm, of Overland Park, and Don C. Krueger, of Krueger & Huth Law Office, of Emporia, were with him on the briefs for appellants/cross-appellees.

Paul Hasty, Jr., of Wallace, Saunders, Austin, Brown & Enochs, Chtd., of Overland Park, argued the cause, and Jeffrey W. Deane, of the same firm, was with him on the briefs for appellees/cross-appellants.

The opinion of the court was delivered by

DAVIS, J.:

The primary question in this appeal involves the civil standard of care required of those persons having ownership or control of a firearm. The defendant parents kept a .22 caliber handgun in their home. Their minor son obtained the gun and later accidently shot the plaintiffs' minor daughter. In the plaintiffs' personal injury action against the parents, the jury was instructed that the standard of care required of the parents was that of reasonable [269 Kan. 422] care. However, the standard of care required in this state is the highest degree of care. We reverse and remand for further proceedings.

On the afternoon of May 27, 1995, Ed Groh, age 15, used a screwdriver to open his father's locked gun cabinet and removed a .22 caliber handgun. The gun was not loaded; however, the loaded ammunition clip, as well as additional ammunition, was stored in the cabinet along with the gun. Ed took the gun and ammunition to a friend's house where he and some friends drank beer and practiced "target shooting with some cans." Later that night, Ed went to a party at the Archdekins' house. There were no adults present at the party. Ed carried the gun with him and showed it to others at the party. Sarah Wood, age 15, arrived at the party around midnight. Both Sarah and Ed consumed alcoholic beverages at the party.

At about 1:30 or 2 a.m., Ed left the party to drink more beer at another friend's house. He returned to the party and at approximately 2:30 a.m., as Sarah and Ed proceeded up the stairs at the Archdekins' house, the gun accidentally discharged, striking Sarah in the left buttock.

Sarah and her parents, Linda and Warren Wood, filed suit against Ed's parents, Derry and Choon Groh, alleging negligent parental supervision and negligent safeguarding of a gun. The Archdekins were also named defendants in the suit but were dismissed on summary judgment and are not involved in this appeal.

Trial testimony established that Deny Groh had taken his son target shooting with the gun five or six times. Derry specifically forbade Ed from using the gun without strict parental supervision. Ed knew that he was not to take any of the weapons from the cabinet without Derry's permission. Derry was the only person with a key to the gun cabinet and he kept the key on his personal key ring at all times.

Linda Wood testified, however, that Ed told her that Derry knew he had the gun and that Derry knew that he occasionally took the gun from the cabinet and shot it. Testimony also revealed that Ed had been arrested prior to the shooting for taking someone's car without permission and "joyriding." Under the terms of his probation [269 Kan. 423] from that incident, Ed was not to possess a firearm without the permission of his probation officer. Derry took Ed target shooting with the gun shortly after the joyriding incident. Ed had a curfew of 11 to 11:30 p.m. on weekends, which he violated by being at the party well past midnight on the night of the shooting. Neither of the Grohs knew where Ed was the night of the shooting.

A jury returned a verdict in favor of the Woods, finding the Grohs 10% at fault, Sarah 20% at fault, and Ed, who was not a party to the lawsuit, 70% at fault. The jury awarded $100,000 in damages to Sarah and $9,162.50 to her parents, Linda and Warren Wood. Judgment was, therefore, entered in favor of Sarah in the amount of $10,000 and in favor of Linda and Warren in the amount of $916.25.

The Woods raise two issues on appeal: (1) whether the district court erred in refusing to instruct the jury that the Grohs owed the highest degree of care in safeguarding a handgun; and (2) whether the district court erred by refusing to find the Grohs jointly and severally liable for the combined fault of themselves and their son. The Grohs raise three issues on cross-appeal: (1) whether the district court erred by refusing to impose sanctions for the Woods' post-trial filings; (2) whether the district court properly instructed the jury on the issue of negligent parental supervision of their son; and (3) whether the district court erred by instructing the jury that the Grohs could be found negligent for failing to prevent their son from breaking into a locked gun cabinet.

(1) Whether the district court erred in refusing to instruct the jury that the Grohs owed the highest degree of care in safeguarding a handgun.

Standard of Review

The trial court is required to properly instruct the jury on a party's theory of the case. Errors regarding jury instructions will not demand reversal unless they result in prejudice to the appealing party. Instructions in any particular action are to be considered together and read as a whole, and where they fairly instruct the jury on the law governing the case, error in an isolated instruction may be disregarded as harmless. If the instructions are substantially [269 Kan. 424] correct and the jury could not reasonably have been misled by them, the instructions will be approved on appeal. Hawkinson v. Bennett, 265 Kan. 564, 577-78, 962 P.2d 445 (1998). Where, however, the appellate court reaches a firm conviction that if the trial error had not occurred, there is a real possibility that the jury would have returned a different verdict, the appellate court must reverse and remand. Jackson v. City of Kansas City, 263 Kan. 143, 148, 947 P.2d 31 (1997).

Discussion and Analysis

The Woods objected to jury Instruction No. 14, which stated:

"The plaintiffs, Sarah Wood, Warren Wood and Linda Wood, claim that they sustained damages due to the negligence of Ed Groh.

"The plaintiffs also claim that they sustained damages due to the fault of Derry Groh and Choon Groh as follows:

(a) Derry Groh and Choon Groh failed to exercise reasonable care to prevent their son, Ed Groh, from gaining access to the gun;

(b) Derry Groh and Choon Groh failed to exercise reasonable care to ascertain the whereabouts of their minor child, Ed Groh; and

(c) Derry Groh and Choon Groh failed to properly exercise reasonable care in the parental supervision over their minor child, Ed Groh." (Emphasis added.)

In place of Instruction 14, the Woods proposed the following instruction:

"The duty of one owning a handgun is that of the highest degree of care in safekeeping the handgun because a handgun is considered an inherently dangerous instrument. [Citations omitted.]" (Emphasis added.)

The proposed instruction was denied based upon the district court's conclusion that a handgun is "not a dangerous instrumentality when it's in an unloaded state."

Recently, in Long v. Turk, 265 Kan. 855, 962 P.2d 1093 (1998), this court addressed the standard of care required when dealing with a dangerous instrumentality. In Long, the defendant's minor son, Matthew, was driving his car when he encountered the plaintiff's minor son, Tony, driving a van. Matthew and Tony shouted at each other while the vehicles drove side-by-side for a few blocks. Matthew eventually reached under the floor mat and pulled out his father's .357 Magnum handgun and fired one shot out the passenger [269 Kan. 425] side window. The hollow point slug went through the window of Tony's van, killing him.

Matthew's father owned several guns which were kept in a locked safe, although Matthew knew where the keys were kept. A.357 Magnum and the hollow point bullets for the gun were kept in a gun cabinet. Testimony conflicted as to whether Matthew had permission to take the gun out of the locked cabinet. After depositions were taken of Matthew and his father, Matthew's father moved for summary judgment, asking the court to dismiss the case. The district court granted the motion for summary judgment.

On appeal, this court reversed the summary judgment, concluding that genuine issues of material fact existed. We concluded that the .357 Magnum handgun was a dangerous instrumentality requiring the highest degree of care. 265 Kan. at 860. We examined the history in this state regarding the standard of care required in dealing with a dangerous instrumentality. Quoting from an earlier opinion of Wroth v. McKinney, 190 Kan. 127, 373 P.2d 216 (1962), we stated:

"'Kansas has long followed the rule that the highest degree of care is required of all responsible persons having ownership or control of dangerous explosives such as dynamite and firearms.... [T]he degree of care has to be commensurate with the dangerous character of the instrumentality and a duty to exercise the highest degree of care never ceases.'" 265 Kan. at 861.

Long referred to and quoted from Comment b of the Restatement (Second) of Torts § 298 (1964):

"'Care required. The care required is always reasonable care. This standard never varies, but the care which it is reasonable to require of the actor varies with the danger involved in his act, and is proportionate to it. The greater the danger, the greater the care which must be exercised.'

"'... Thus, those who deal with firearms ... are required to exercise the closest attention and the most careful precautions, not only in preparing for their use but in using them.'" 265 Kan. at 861-62.

This court determined in Long that firearms are inherently dangerous instrumentalities and commensurate with the dangerous character of such instrumentalities, the reasonable care required was the highest degree of care. Long had not been decided at the time this case was submitted to the jury. Nevertheless, consistent [269 Kan. 426] with Long and the cases cited therein, we conclude that the district court erred by not instructing the jury that the highest standard of care is required when dealing with a dangerous instrumentality.

The instructional error in this case goes to the heart of the controversy. The factual issue to be decided by the jury was whether the Grohs were negligent in storing the gun. There is a substantial difference between the two standards proposed: ordinary care or the highest degree of care. Other jurisdictions considering instructional errors concerning the standard of care to be applied by the jury in its evaluation of the defendant's conduct have concluded that such an error requires reversal. See Ruth v. Rhodes, 66 Ariz. 129, 137, 185 P.2d 304 (1947) (noting generally that failure to instruct on the proper standard of care to which a defendant should be held is usually reversible error, for it is improper that a jury should be allowed to hold against a party when it was given the wrong standard by which to measure the party's conduct); Bailey v. Rose Care Center, 307 Ark. 14, 19, 817 S.W.2d 412 (1991) (holding that reversal was required where the court instructed the jury on the wrong standard of care); Wilson v. City & County of S. F., 174 Cal. App.2d 273, 277, 344 P.2d 828 (1959) (reversal required where jury instructions misled jury into applying ordinary care standard instead of heightened standard of care to carrier); Blackwell's Adm'r v. Union Light, Heat & Power Co., 265 S.W.2d 462, 464-65 (Ky. App. 1953) (holding that instruction which erroneously defined the "highest degree of care" so as to mislead jury into believing that the defendant was held to standard of ordinary care was error requiring reversal); Lindstrom v. Yellow Taxi Co., 298 Minn. 224, 230, 214 N.W.2d 672 (1974) (affirming the trial court's decision to grant a new trial where the trial court had erroneously instructed the jury in a way that led the jury to believe that the defendant was held to an ordinary care standard rather than the "highest degree of care" standard); Urban v. Minneapolis Street Ry. Co., 256 Minn. 1, 6, 96 N.W.2d 698 (1959) (holding that the instructions were confusing as the jury was likely to evaluate the defendant's actions under an ordinary care standard rather than the "highest degree of care" standard); Woods v. Chinn, 224 S.W.2d 583, 587 (Mo. App. 1949) (giving of instruction which [269 Kan. 427] placed ordinary care standard on party rather than "highest degree of care" was erroneous, thereby requiring reversal); Jones v. Port Authority, 136 Pa. Commv. 445, 448-49, 583 A.2d 512 (1990) (noting that carriers owe a heightened duty of care to their fare paying passengers and holding that the trial court erred in instructing the jury in such a way as to mislead it into applying an ordinary care standard); Magbuhat v. Kovarik, 382 N.W.2d 43, 46 (S.D. 1986) (noting that it is prejudicial to instruct the jury on the wrong standard of care); and Coyle v. Metro Seattle, 32 Wash. App. 741, 747, 649 P.2d 652 (1982) (holding that instructions were confusing to jury and that jury could have been misled into thinking that the defendant only had a duty of ordinary care when jury should have evaluated defendant under a "highest degree of care" standard).

We have concluded that the parents in this case owed the highest duty to protect the public from the misuse of the gun, a dangerous instrumentality, stored in their home. The fact that the gun was not loaded is insignificant, for the ammunition was kept in the same locked cabinet as the gun. Once access to the gun was obtained, access to the ammunition immediately followed. Storage of the ammunition in the same location as the gun in this case resulted in the gun being easily loaded and made it a dangerous instrumentality.

The parents took significant steps to prevent their son from obtaining possession of the gun. The gun cabinet was locked at all times. Derry Groh was the only person with a key to the cabinet. The key was on his key ring and in his possession at all times. Their son was told and was aware that he was not to use the guns without parental supervision. Their son had attended and passed a hunter safety class. Their son, however, only had to use a screwdriver to gain access to the cabinet and was able to obtain possession of both the gun and the ammunition by doing so.

We conclude, under the facts of this case, that the instructional error did result in prejudice to the plaintiffs. There is a real possibility that the jury would have returned a different verdict had the correct standard been given to the jury in measuring the conduct of the parents. We, therefore, reverse and remand for further proceedings.

[269 Kan. 428] (2) Whether the district court erred by refusing to find the Grohs jointly and severally liable for the combined fault of themselves and their son.

The Woods argue that the district court erred by refusing to find the Grohs jointly and severally liable for the acts of their son.

Standard of Review

The interpretation of K.S.A. 60-258a is a question of law and, thus, this court's scope of review is unlimited. See Hamilton v. State Farm Fire & Cas. Co., 263 Kan. 875, 879, 953 P.2d 1027 (1998) (noting that our review is unlimited where the issue is interpretation of a statute).

Discussion and Analysis

The Woods objected to submission of this case on a theory of comparative fault pursuant to K.S.A. 60-258a. They argue that the Grohs should be jointly and severally liable for the 70% fault found on the part of their minor son, Ed. They rely on several cases dealing with the duty to control one who intentionally injures another. See Kansas State Bank & Tr. Co. v. Specialized Transportation Services, Inc., 249 Kan. 348, 374-76, 819 P.2d 587 (1991) (imposing joint liability upon those whose duty is to prevent third parties from inflicting injury); Gould v. Taco Bell, 239 Kan. 564, 571, 722 P.2d 511 (1986) (intentional acts of a third party cannot be compared with the negligent acts of a defendant whose duty it was to protect the plaintiff from the intentional acts committed by the third party); M. Bruenger & Co. v. Dodge City Truck Stop, Inc., 234 Kan. 682, 686-87, 675 P.2d 864 (1984) (holding the district court should not have permitted the fault of the negligent bailee to be compared with that of the intentional act of the thief).

The above-cited cases provide no support for the plaintiffs' argument. The shooting in this case was accidental. The record confirms this and provides no evidence otherwise. Where joint tortfeasors are liable on a theory of negligence, their fault must be compared pursuant to K.S.A. 60-258a. The concept of joint and several liability between joint tortfeasors does not apply in comparative negligence actions. Brown v. Keitt, 224 Kan. 195, Syl. ¶ 5, 580 P.2d 867 (1978).

[269 Kan. 429] Cross-petition: (1) Whether the district court erred by refusing to impose sanctions for the Woods' post-trial filings.

Following the trial, the Woods filed a motion to amend to conform to the evidence, a motion to substitute parties, and an objection to the entry of judgment. The thrust of the Woods' motions was to attempt to make the Grohs responsible for the fault of Ed, as the jury had apportioned his fault at 70% and apportioned only 10% fault on the Grohs. A hearing was held and the district court denied the motion to amend and motion to substitute parties. The district court overruled the objection to the entry of judgment. The district court found that the motions "were unnecessary enough to what I consider, without mincing words, garbage. I think they were not appropriate...." The court further noted that it was "convinced that some of the documents filed in this case are an attempt to backdoor judgment against a party [Ed] who has been denied his due process rights." The court also noted that the motions filed by the Woods "rise to the level of legal garbage." Although the court found that the three post-trial filings violated K.S.A. 1999 Supp. 60-211(b), the court chose to verbally admonish the Woods' counsel instead of awarding attorney fees as the Grohs had requested.

Standard of Review

The imposition of sanctions pursuant to K.S.A. 1999 Supp. 60-211 is discretionary with the trial court, and its ruling on sanctions will not be disturbed on appeal absent an abuse of discretion. Summers v. Montgomery Elevator Co., 243 Kan. 393, 399, 757 P.2d 1255 (1988); Cornett v. Roth, 233 Kan. 936, 945, 666 P.2d 1182 (1983). Judicial discretion is abused only where no reasonable person would take the view adopted by the trial court. If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. Stayton v. Stayton, 211 Kan. 560, 562, 506 P.2d 1172 (1973).

The Grohs argue that because the court made a finding that K.S.A. 60-211(b) was violated, the statute requires that the court "shall" award sanctions. Because this is a question involving the [269 Kan. 430] interpretation of 60-211, the standard of review is unlimited, as the interpretation of a statute is a question of law. Smith v. Printup, 262 Kan. 587, 603-04, 938 P.2d 1261 (1997).

Discussion and Analysis

The Grohs argue that because the district court found that the Woods' post-trial filings were "unnecessary" and "not appropriate," the court was required to award sanctions in the form of attorney fees.

K.S.A. 1999 Supp. 60-211 provides in pertinent part:

"(c) ... If a pleading, motion or other paper provided for by this article is signed in violation of this section, the court, upon motion or upon its own initiative upon notice and after opportunity to be heard, shall impose upon the person who signed it or a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion or other paper, including reasonable attorney fees." (Emphasis added).

The plain wording of K.S.A. 1999 Supp. 60-211(c) requires that a district court "shall impose" a sanction when a violation of K.S.A. 1999 Supp. 60-211(b) is found, as in this case. The statute, however, does not specifically require a sanction of attorney fees, as it gives the district court the discretion to apply "an appropriate sanction." Further, the statute indicates that the sanction "may include" attorney fees. The statute does not require a district court to award monetary sanctions for a violation of 60-211(b). The word "sanction" does not require courts to award "fees" as the Grohs argue.

Kansas courts often look to the case law on the federal rules as guidance for interpretation of our own rules, as the Kansas rules of civil procedure were patterned after the federal rules. See Stock v. Nordhus, 216 Kan. 779, 782, 533 P.2d 1324 (1975) (noting that the Kansas courts have traditionally followed the interpretation of federal procedural rules and that the federal case law is highly persuasive). Although Fed. R. Civ. Proc. 11 is not identical to K.S.A. 1999 Supp. 60-211, the intent behind the rules is the same. The purpose of both rules is to deter "repetition of improper conduct." Waltz v. County of Lycoming, 974 F.2d 387, 390 (3d Cir. [269 Kan. 431] 1992). An award of attorney fees "should not automatically be the sanction of choice." 974 F.2d at 390.

Courts should take the following factors into consideration when determining whether to sanction a party and what kind of sanction to impose:

(1) whether the improper conduct was willful or negligent;

(2) whether it was part of a pattern of activity or an isolated event;

(3) whether it infected the entire pleading or only one particular count or defense;

(4) whether the person has engaged in similar conduct in other litigation;

(5) whether it was intended to injure;

(6) what effect it had on the litigation process in time or expense;

(7) whether the responsible person is trained in the law;

(8) what amount, given the financial resources of the responsible person, is needed to deter that person from repetition in the same case; and

(9) what amount is needed to deter similar activity by other litigants.

Fed. R. Civ. Proc. 11, Advisory Committee notes 1993.

We hold that the plain meaning of K.S.A. 1999 Supp. 60-211(c), coupled with the legislative intent of the statute, allows courts to impose nonmonetary sanctions in the form of admonitions, as well as monetary sanctions. Courts are not required to award attorney fees when a violation of K.S.A. 1999 Supp. 60-211(b) is found. The district court has the discretion to determine what type of sanctions are appropriate in a given case. The district court did not abuse its discretion in admonishing the Woods for the filing of the three post-trial motions.

(2) Whether the district court properly instructed the jury on the issue of negligent parental supervision.

The Grohs, in their cross-appeal, argue that there was insufficient evidence to justify a jury instruction on the issue of negligent parental supervision. Although the Grohs frame this issue as one [269 Kan. 432] of an incorrect jury instruction, the argument actually concerns a sufficiency of evidence question.

Standard of Review

"[W]hen a verdict is challenged for insufficiency of evidence or as being contrary to the evidence, [the appellate court] does not weigh the evidence or pass on the credibility of the witnesses. `If the evidence, with all reasonable inferences to be drawn therefrom, when considered in the light most favorable to the prevailing party, supports the verdict, it will not be disturbed on appeal.'" Brown v. United Methodist Homes for the Aged, 249 Kan. 124, 127, 815 P.2d 72 (1991).

Analysis and Discussion

The Restatement (Second) of Torts § 316 (1964) sets forth the tort of negligent parental supervision and states:

"A parent is under a duty to exercise reasonable care so to control his minor child as to prevent it from intentionally harming others or from conducting itself as to create an unreasonable risk of bodily harm to them, if the parent

(a) knows or has reason to know that he has the ability to control his child, and

(b) knows or should know of the necessity and opportunity for exercising such control."

The jury was given Instruction No. 14A, which states:

"A parent is under a duty to exercise reasonable care to control their minor child as to prevent said child from intentionally harming others or from so conducting themselves as to create an unreasonable risk of bodily harm to others, if the parents know or have reason to know that they have the ability to control their child and know or should know of the necessity and opportunity for exercising such control."

Contrary to the Grohs' argument, Instruction No. 14A is a correct statement of the tort of negligent parental supervision. The instruction given is consistent with the Restatement (Second)of Torts and with the Court of Appeals' decision in Mitchell v. Wiltfong, 4 Kan. App.2d 231, 604 P.2d 79 (1979), and properly framed the question raised by the evidence.

(3) Whether the district court erred by instructing the jury that the Grohs could be found negligent for failing to prevent Ed from breaking into a locked gun cabinet to obtain the .22 caliber handgun.

[269 Kan. 433] The Grohs make an additional argument concerning Instruction No. 14A. They argue that there was insufficient evidence adduced at trial to support Instruction No. 14A. The only real issue concerns the second element of the tort concerning the question of whether the Grohs "knew or should have known of the necessity and opportunity for exercising such control."

Although the evidence at trial revealed that Ed had only one previous run-in with the law, the Grohs knew that Ed had a curfew and that it was a violation of his probation to possess a gun without the permission of his probation officer. Linda Wood testified that at the hospital after the incident, she asked Ed if Derry Groh knew he had the gun, and that Ed told her, "[H]e knows I take it sometimes and shoot it." The evidence, with all reasonable inferences to be drawn therefrom, when considered in the light most favorable to the prevailing party, was sufficient to support the giving of Instruction 14A. See Brown v. United Methodist Homes for the Aged, 249 Kan. at 127.

The Grohs argue that the "case should never have been submitted to the jury and a judgment should have been entered in favor of Defendants and against Plaintiffs on all counts." The Grohs further suggest that this court "remand the case to the Trial Court with instructions to enter judgment in favor of Defendants and against Plaintiffs on all counts as the case was improperly submitted to the jury when, in fact, it was a question of law to be resolved in Defendant's favor by the Trial Court." The Grohs claim that there was insufficient evidence adduced at trial to show that the Grohs breached a duty of ordinary care in the safeguarding of the gun and, therefore, the case should have been dismissed.

A review of the record reveals that the Grohs did not raise this issue in the district court. An objection was made to Instruction No. 14 in which the Grohs argued that the evidence did not show they breached any duty of care in the safekeeping of the gun, but no motion was made to dismiss the case. Their trial objection related solely to the language used in the instruction. They did not move for dismissal, nor did they seek summary judgment on this issue. Issues not raised before the trial court cannot be raised for the first time on appeal.Ripley v. Tolbert, 260 Kan. 491, 513, 921 [269 Kan. 434] P.2d 1210 (1996). A new legal theory may not be asserted for the first time on appeal or raised in a reply brief. Jarboe v. Board of Sedgwick County Comm'rs, 262 Kan. 615, 622, 938 P.2d 1293 (1997).

The Grohs further argue that the issue of negligence in the safekeeping of the gun was improperly before the jury because they cannot be negligent in keeping a gun locked in a cabinet where the only way to access the cabinet was by breaking into it with a screwdriver. In other words, the Grohs argue that they cannot be negligent for locking a gun in a gun cabinet. The Grohs correctly note that owners of firearms are not strictly liable for their misuse.

However, although the gun was kept in a locked cabinet, the gun was taken from the cabinet when Ed used a screwdriver to easily break into the cabinet. Even though the ammunition was stored in a separate compartment within the cabinet, it was still accessible by breaking into the cabinet with a screwdriver. It was a simple process for their minor child to break into the cabinet and load the ammunition clip into the gun once the cabinet was open. The question to be resolved is whether the parents used the highest degree of care is storing the gun their son used in accidentally injuring the plaintiff. There are sufficient disputed facts in this case to require that the matter be resolved by the jury on appropriate instruction.

Reversed and remanded.

ABBOTT, J., dissenting:

As I read the record, Linda Wood asked whether Deny Groh knew Ed Groh had the gun and Ed replied, "[H]e knows I take it sometimes and shoot it." The testimony was consistent throughout that Ed only shot the gun when Derry was along and supervising. I find nothing in the briefs which indicate that Deny ever allowed Ed to have the gun unsupervised. Ed's comment that he occasionally took the gun from the cabinet and shot it can only be interpreted as having the gun when he was with his father.

Here, the gun was under lock and key, and Deny kept control of the key. The majority, in my opinion, makes it almost absolute [269 Kan. 435] liability to own a gun. What more can a gun owner do than lock up an unloaded gun and keep control of the key.

I would hold the Grohs were not negligent as a matter of law.

MCFARLAND, C.J., joins in the foregoing dissenting opinion.

[360 A.2d 389] [70 N.J. 444] Rocco L. D'Ambrosio, Morristown, for defendant-appellant (O'Donnell, Leary & D'Ambrosio, Morristown, attorneys).

Herbert E. Weiland, Morristown, for plaintiff-respondent (Hoyt, Weiland & Hoyt, Morristown, attorneys).

The opinion of the Court was delivered by

SULLIVAN, J.

This case involves a claim for personal injuries and arises out of a skiing accident which occurred at a ski resort in Vermont. Suit was brought in New Jersey because defendant, who was involved in the accident, is a resident of New Jersey.^[1] The jury returned a verdict for defendant based on its specific finding that defendant was not negligent. On appeal, the Appellate Division, in an opinion reported at 134 N.J.Super. 99, 338 A.2d 820 (1975), reversed and remanded for a new trial holding that the trial judge committed plain error in his charge to the jury as to the [70 N.J. 445] standard of care required of defendant in the circumstances. We reverse and reinstate the judgment for defendant.

The factual situation involved is detailed in the Appellate Division opinion and may summarized as follows:

On February 21, 1972, plaintiff, an experienced skier, was serving as a first aid advisor on the ski patrol at the Mad River Glen ski resort in Vermont. The facility includes a beginners slope which near its end makes an abrupt left turn. The accident occurred some 60 feet beyond the end of the slope in a flat area where plaintiff and a friend happened to be standing taking pictures. Plaintiff had been working in the first aid room which is adjacent to the area where plaintiff and her friend were standing.

Defendant, then 17 years of age, was a beginning skier who had limited crosscountry skiing experience but had never attempted a downhill run. Nor had he ever been to Mad River Glen before. Upon arrival, defendant was sent to the beginners' slope. However, instead of riding the mechanical T-bar lift to the top, defendant confined his first run to the lower portion of the slope. He walked a quarter of the way up the hill and started to ski down, successfully completing the comparatively short run of 30 feet or so until he came to the abrupt left turn. In attempting to negotiate the turn, defendant lost control over his momentum and direction. He saw the two girls ahead of him but because of the short distance remaining, his efforts to regain control and his lack of experience, he did not call out until he was almost upon the girls. Plaintiff attempted to get out of the way but was unable to do so and was struck and knocked down by defendant.

Prior to trial, the court ruled that the law of the case would be the law of Vermont. Counsel have agreed that Vermont law was to this accident is the same as New Jersey's.

The trial court charged the jury that the standard of care applicable in the case was [360 A.2d 390] not the same degree of care required of an adult, but rather that degree of care which a reasonably prudent person of that age (defendant was [70 N.J. 446] 17 years of age) would have exercised under the same or similar circumstances. Following a side bar conference, the court supplemented its charge with the following:

'All right. Perhaps I didn't charge as clearly as I thought that I had charged with reference to the duty of a 17 year old. I know that I used the term 17-year-old beginner, and that may lead to some confusion. Let me try to straighten it out. The law imposes on a 17 year old that standard of care that a 17 year old with the experience and background that this 17 year old had. It does not impose any higher or any lower degree of care than can reasonably be expected of a 17 year old with respect to the experience and background that Mr. Allen had in this case.'

There was no exception taken to the charge. As heretofore noted, the jury in answer to an interrogatory submitted to it found the defendant not negligent.

Plaintiff appealed solely on the ground that the jury verdict was against the weight of the evidence. The Appellate Division, however, Sua sponte, raised the issue of plain error in the court's charge on the applicable standard of care. Following briefing of the issue and oral argument thereon, the Appellate Division reversed and remanded for a new trial finding plain error in the charge. In essence, the Appellate Division held that skiing was an adult activity and that where a child engages in an activity which is normally undertaken by adults, such as skiing, he should be held to the standard of adult skill, knowledge and competence, without allowance for his immaturity. The Appellate Division added that had an adult standard of care been imposed, as it should have been, the jury might well have found defendant negligent.

The Appellate Division determination that defendant, in the circumstances presented, should be held to the standard of care required of an adult was premised on its conclusion that skiing is an activity which may be dangerous to others and is normally undertaken only by adults, and for which adult qualifications are required. See Restatement, [70 N.J. 447] Torts 2d, § 283A, Comment c at 16 (1965). We find nothing in the record to support this conclusion. We think it judicially noticeable that skiing as a recreational sport, save for limited hazardous skiing activities, is engaged in by persons of all ages. Defendant's attempt to negotiate the lower end of the beginners' slope certainly cannot be characterized as a skiing activity that as a matter of law was hazardous to others and required that he be held to an adult standard of conduct. Williams v. Gilbert, 239 Ark. 935, 395 S.W.2d 333 (1965); Conway v. Tamborini, 68 Ill.App.2d 190, 215 N.E.2d 303 (App.Ct.1966); Bixenman v. Hall, 251 Ind. 527, 242 N.E.2d 837 (1968); Ranson v. Melegi, 18 Mich.App. 476, 171 N.W.2d 482 (Ct.App.1969); 2 Harper and James, The Law of Torts, § 16.8 at 927 (1956); but see Neumann v. Shlansky, 58 Misc.2d 128, 294 N.Y.S.2d 628 (Cty.Ct.1968), aff'd o.b. 63 Misc.2d 587, 312 N.Y.S.2d 951 (Sup.Ct.App.Term 970), aff'd 36 A.D.2d 540, 318 N.Y.S.2d 925 (Sup.Ct.App.Div. Second Dept.)

We recognize that certain activities engaged in by minors are so potentially hazardous as to require that the minor be held to an adult standard of care. Driving a motor vehicle, operating a motor boat and hunting would ordinarily be so classified. However, as to the activities mentioned New Jersey law requires that the minor must be licensed and must first demonstrate the requisite degree of adult competence. See annotation, 'Age of minor operator of automobile or other motor-powered vehicle or craft as affecting his primary or contributory negligence,' 97 A.L.R.2d 872 (1964).

[360 A.2d 391] We find that the applicable standard of care, correctly charged by the trial court, was that generally applicable to minors. Cf. Bush v. N.J. & N.Y. Transit Co., Inc., 30 N.J. 345, 353, 153 A.2d 28 (1959). See Parker v. Gunther, 122 Vt. 68, 164 A.2d 152 (1960); Johnson's Adm'rs v. Rutland R.R. Co., 93 Vt. 132, 106 A. 682 (1919). The required standard is that of a reasonable person of like age, intelligence^[2] [70 N.J. 448] and experience under like circumstances. 42 Am.Jur.2d, Infants, § 142 at 136 (1969); Restatement, Torts 2d, § 283A at 14 (1965).^[3] Among those circumstances, of course, would be the nature of the activity in which the minor was engaged.

Most of the cases which apply this standard have been concerned with the minor's contributory negligence and not primary negligence. It has been suggested that a different standard might well apply where the minor's conduct causes injury to others. See Schulman, 'The Standard of Care Required of Children,' 37 Yale L.J. 618, 619 (1928). While this Court has not previously had occasion to consider this question, the Appellate Division has held that the principles enunciated by this Court regarding the contributory negligence of a child would also apply to a case where the primary negligence of a child is involved. Zuckerbrod v. Burch, 88 N.J.Super. 1, 7--8, 210 A.2d 425 (App.Div.), certif. den. 45 N.J. 593, 214 A.2d 30 (1965). We think that a rational basis exists for applying the same standard whether the issue involves a question of contributory negligence of a child, or primary negligence. Moreover, to hold otherwise would further complicate an already difficult area of tort law. The practicalities of the situation weigh heavily in favor of a single standard. See annotation, 97 A.L.R.2d 872, Supra.

[70 N.J. 449] The Appellate Division, while it decided the case on the ground heretofore discussed, also criticized the trial court's application of the standard applicable to children to a 17-year-old person, pointing out that by N.J.S.A. 9:17B--1 Et seq. (eff. January 1, 1973) every person in this State 18 or more years of age is deemed to be an adult. The Appellate Division could see little sense in holding an 18-year-old person to one standard of care and applying a lesser standard to one 17 years of age.

However, this problem will exist no matter where the line is drawn, whether it be at 10, 14 or 18 years. Since it has to be drawn somewhere, it is not unreasonable to fix it at the age of legal maturity--now 18 in this State--holding those under that age and capable of negligence to the standard of care required of a reasonable person of like age, intelligence and experience under like circumstances. Prosser, Torts, § 32 at 154--157 (4 Ed. 1971). This case, though, must be decided on the basis of the law prior to the effective date of the cited statute. Although there is no decided case in New Jersey fixing the age at which the standard of care governing children no longer controls, 18 years would appear to be the age at which a person should be held to adult responsibility in tort matters. Such is already the case with criminal responsibility--18 being the age at which a person's criminal or anti-social behavior ceases to be regarded as juvenile delinquency and is treated as a criminal or quasi-criminal act, subject to the processes and sanctions normally applicable to adults. See N.J.S.A. 2A:4--43 (superceding N.J.S.A. 4--14). The trial court, therefore, charged the jury correctly as to the standard of care applicable to the 17-year-old defendant herein.

[360 A.2d 392] Finally, we consider plaintiff's contention that the jury verdict was against the weight of the evidence in that the uncontradicted evidence leads to the inescapable conclusion that the defendant was negligent. The Appellate Division, [70 N.J. 450] since it disposed of the appeal on other grounds, did not rule on this contention. We have reviewed the proofs and concluded that a jury question as to defendant's negligence was presented and that the verdict returned was not against the weight of the evidence.

The judgment of the Appellate Division is reversed and the judgment of the trial court in favor of defendant is hereby reinstated.

For reversal and reinstatement:

Chief Justice HUGHES, Justices SULLIVAN and PASHMAN and Judges CONFORD, KOLOVSKY and CARTON--6.

For affirmance: Justice SCHREIBER--1.

SCHREIBER, J. (dissenting).

The standard of care now made generally applicable to minors does not square with reality, nor does its purported application justify the charge given.

I

The factual context of this case is set forth both in the Appellate Division and majority opinions. Conspicuous by their absence, however, are the trial court's numerous charges on the defendant's standard of care. In chronological order and intermittently, the trial court instructed the jury:

1. 'The law says that as far as one under 18 is concerned--18 or younger--we don't exact from him or her the same degree of care that we exact from an adult. We expect that we call an infant, which is anyone under 18--we exact that degree of care which a reasonably prudent person of that age would have exercised under the same or similar circumstances. So, as I said to you, Steven Allen on this date was 17 years old, and the law exacts from him the standard of care that a 17 year old would exercise under the circumstances.'

2. (Allen claimed he) 'exercised that degree of care which a reasonably prudent person would or should have exercised.'

3. (Defendant claims he) 'exercised reasonable care as a 17-year-old beginner skier.'

4. 'Like any 17 year old or like any beginner skier or both--any beginning 17-year-old skier.'

5. (The applicable standard is) 'that degree of care that might reasonably be expected of a 17-year-old beginner skier.'

[70 N.J. 451] 6. 'Perhaps I didn't charge as clearly as I thought that I had charged with reference to the duty of a 17 year old. I know that I used the term 17-year-old beginner, and that may lead to some confusion. Let me try to straighten it out. The law imposes on a 17 year old that standard of care that a 17 year old with the experience and background that this 17 year old had. It does not impose any higher or any lower degree of care than can reasonably be expected of a 17 year old with respect to the experience and background that Mr. Allen had in this case.' (Emphasis supplied).

The majority accepts and approves the last, number 6, which was the trial court's supplemental charge. That simply stated that Allen had to exercise the same care as someone of the same age, experience and background. This charge does not equate [360 A.2d 393] with the standard adopted today by the majority, namely that Allen must act in accordance with the conduct of a Resonable person of the same age, Intelligence and experience under the same circumstances.

The significance of the omission of intelligence in the charge becomes apparent when one recognizes the importance of that factor in fixing the required standard of care. Intelligence in this context relates to mental and judgmental capacity but not the exercise of that capacity. The distinction between exercise of mental or judgmental capacity and the capacity itself points to the objective-subjective elements in the test. Restatement, Torts 2d, § 238A, Comment b at 15 (1965). The defendant's conduct is to be measured against the conduct of the average or usual 17-year-old having the same judgmental capacity.

The crucial element in determining the standard of care to be established for infants centers about the judgmental capacity factor to comprehend, understand and perceive risk and danger. Age, experience, education, social background and intellectual capability have their respective places in the formation of judgmental capability. Whether the infant should or should not have acted or reacted in a certain manner depends on whether the theoretical average infant having the same capacity would have acted or reacted in the same fashion.

[70 N.J. 452] Case law has stressed the judgmental capacity factor. In Hellstern v. Smelowitz, 17 N.J.Super. 366, 378, 86 A.2d 265, 271 (App.Div.1952), Judge Jayne pointed out that consideration must be given to the child's 'capacity to understand and avoid dangers to which it is exposed in the actual circumstances and situation under investigation.' When this Court last considered the infant standard of care problem, Bush v. N.J. & N.Y., Transit Co., Inc., 30 N.J. 345, 153 A.2d 28 (1959), its analysis focused upon the 'problem of the capacity of children of tender years to act negligently.' Id. at 352, 153 A.2d at 32.

The Restatement, Torts 2d, § 283A advocates that a child's acts or omissions be compared to that of a reasonable person of the same age, experience, and intelligence.^[1] The majority has apparently adopted this rule. Although the Restatement does not on its face view age, experience, and intelligence as simply some elements to determine judgmental capacity, in its discussion under Comment b, it recognizes that the fact finder must analyze those factors to determine judgmental capacity. The Restatement asks whether that hypothetical person with the same judgmental capacity would have acted or reacted in the same manner. The trial court's supplemental charge omitted any reference to the defendant's intellectual capacity and failed to clearly instruct the jury to measure the defendant's judgment against that of the average 17-year-old with the same intellectual capacity. The jury could not possibly have understood the subjective-objective test which the Court is adopting this day. So even assuming the correctness of the principle adopted by the majority, in view of the several conflicting instructions given to the jury, a new trial is warranted.

[70 N.J. 453] II

Presumably the majority is adhering to the principles enunciated in Bush v. N.J. & N.Y. Transit Co., Inc., supra. We held there that a child under age seven was rebuttably presumed to be incapable of negligence and the issue was not to be submitted to the jury in the absence of evidence 'from which the jury could infer that the child was capable of understanding and avoiding the danger of injury involved in the circumstances of the case.' 30 N.J. at 358, 153 A.2d at 35. The party asserting [360 A.2d 394] the infant's negligence or contributory negligence bore the burden of proof.

Under the norm adopted this day where the negligence or contributory negligence of an infant between ages 7 and 18 is in issue, his activity or inactivity is to be measured by a reasonable person of the same age, intelligence and experience under similar circumstances unless the activities 'are so potentially hazardous as to require that the minor be held to an adult standard of care.' Ante At 390. There are several inherent difficulties in and inequitable consequences of this rule.

What criteria are to be employed by the jury to ascertain whether an activity is 'potentially hazardous'? If a 'potentially hazardous' activity is one which results in serious or permanent injury, then almost any activity might fall within that category. The injured person who has lost the sight of an eye resulting from a carelessly thrown dart, or stone, or firecracker, the death caused by a bicycle, or an individual seriously maimed due to an errant skier--all are indisputable proof of 'potentially hazardous' activity. The majority prescribes no guideline except to imply that whenever licensing is required, the 'potentially hazardous' test is met.^[2] But the State does not impose a licensing [70 N.J. 454] requirement on all 'potentially hazardous' activities and whether one has a license or not is often not relevant in measuring conduct of a reasonably prudent person. Whether the driver of an automobile is licensed, for example, is not relevant in adjudicating if the automobile was being driven in a reasonable prudent manner. In Charbonneau v. MacRury, 84 N.H. 501, 153 A. 457, 464 (1931), the New Hampshire Supreme Court pointed out that by licensing drivers the State 'has not undertaken to deal with the rule of care at all. It neither expressly or impliedly authorizes the trier of facts to disregard the legally ascertainable defects of the actor when material to the issue of his reasonable conduct, whether he be an adult or a minor. The authorized license is not a certificate of the physical perfection of the adult or of the mental maturity of the eligible minor.'

To the injured party, his loss is the same irrespective of the wrongdoer's date of birth and it is inequitable and unjust that a minor should not be expected to exercise the same degree of care as the mythical reasonable and prudent person, at least when engaged in adult activities.^[3] The majority's proposition unnecessarily sanctions the imposition of the burden of young people's hazards on innocent victims. Whenever an infant participates in activities in which adults normally engage, the infant should be held to the adult standard of care. Other courts have not hesitated to do so. Minors participating in these activities are mature enough to possess the 'discretion and physical capacity consistent with . . . the presumption of adult responsibility . . ..' Nelson v. Arrowhead Freight Lines, 99 Utah 129, 104 P.2d 225, 228 (1940). See also, Dellwo v. Pearson, 259 Minn. 452, 107 N.W.2d 859 (1961) (motor boat operation); Neumann v. Shlansky, 58 Misc.2d 128, 294 [70 N.J. 455] N.Y.S.2d 628 (Cty.Ct.1968), Aff'd o.b. 63 Misc.2d 587, 312 N.Y.S.2d 951 (App.T.1970), Aff'd mem., 36 A.D.2d 540, 318 N.Y.S.2d 925 (1971) (golfing); Harrelson v. Whitehead, 236 Ark. 325, 365 S.W.2d 868 (1963) (motorcycle); Jackson v. McCuiston, 247 Ark. 862, 448 S.W.2d 33 (1969) (tractor-propelled stalk cutter); Adams v. Lopez, 75 N.M. 503, 407 P.2d 50 (1965) (motor scooter); Betzold v. Erickson, 35 Ill.App.2d 203, 182 N.E.2d 342 (App.Ct.1962) (truck). [360 A.2d 395] Some jurisdictions recognize that children after a certain age are presumably capable of adult discretion. Lassiter v. Poss, 85 Ga.App. 785, 70 S.E.2d 411, 414 (Ct.App.1952) (14); Nelson v. Arrowhead Freight Lines, supra (14); City of Austin v. Hoffman, 379 S.W.2d 103, 107 (Tex.Civ.App.1964) (14).

Inherent in these approaches, either on the basis of activities or on age well below legal adulthood, is recognition of the realism and justness in applying the adult objective standard. In some measure this is probably due to the expansion of experiences and activity of minors, as well as the protection afforded all members of the family by comprehensive liability insurance policies.^[4] Functionally, skiing is as much a sport for people over 18, as under 18.^[5] It is no different than golf or cycling. And the hazards to the public whether operating a motor vehicle, power boat, motor scooter, bicycle, tractor or hitting a golf ball, or skiing are self-evident. Third persons may be exposed to serious injury because of the dangers which occur when the activity is not being performed in a reasonably prudent manner by a reasonably [70 N.J. 456] prudent person and no sound reason exists for not holding the child defendant to the standard of the reasonably prudent adult. See 2 Harper & James, Law of Torts, § 16.8 at 927 (1956).

III

The 18-year-old line drawn today is contrary to policies enunciated by the legislature in regulating some aspects of the conduct of minors in relation to others. A 16-year-old juvenile may be tried as an adult for a homicide, treason, offense against the person in an aggressive, violent and willful manner, or for sale and distribution of narcotics. N.J.S.A. 2A:4--48. At age 16 1/2, a person may obtain a special learner's permit to drive a car so that a driver's license may be obtained at age 17. N.J.S.A. 39:3--13.1 and N.J.S.A. 39:3--13.4. At age 13 one may be licensed to operate a boat with an outboard motor. N.J.S.A. 12:7--34.7. Under this Court's rules a 17-year-old infant may file a verified petition. R. 4:26--2(b). The 18-year-old line is not consonant with the common law rule that at age 14 an infant is presumed to have the capacity to be guilty of criminal intent. Blackstone's Commentaries, Bk. IV, Sec. 23. The Restatement, Torts 2d, § 283A, Comment a refers to the fact that its rule 'has seldom been applied to anyone over the age of sixteen' and 'is commonly applied to children of tender years.'

The 18-year demarcation line ignores the earlier mental development of young people. A few comments from experts in the field of child behavior demonstrate the point.

* * * (T)he middle-years (6 to 12 plus) child's growing mastery of symbols and his ever-broadening fund of general knowledge permit him to think in ways that come to approximate those of adults. Indeed, in some areas, the child may know a great deal more than his less educated parents and so be able to think more rationally than they * * *. (L. Stone and J. Church, Childhood and Adolescence at 412--413 (2d ed. 1968)).

* * * Rodman (in 'Children Under the law,' 43 Harv.Ed.Rev. 487, 489 (1973)) notes that the law's placement of the dividing [70 N.J. 457] line between legal minority and adult status at the age of eighteen [360 A.2d 396] or twenty-one years is 'artificial and simplistic' because it obscures the dramatic differences among children of different ages and the striking similarities between older children and adults. That observation seems so sound and obvious that it raises the question of how such differences--and also the resemblance between older children and adults--have come to be obscured?

(Skolnick, 'The Limits of Childhood: Conceptions of Child Development and Social Context,' in Children and the Law (Symposium), 39 Law & Contemp.Prob. 38, 43 (1975)).

Selection of the 16th year is a more reasonable age at which to draw the line for the individual to be held to an adult standard of care irrespective of the activity.

IV

I would adopt a rule that an infant 16 years or over would be held to an adult standard of care and that an infant between ages 7 and 16 would be rebuttably presumed to have the duty to act, while engaged in an adult activity, that is, one in which adults normally or usually engage, as a reasonably prudent person, but that, upon a showing that adult judgmental capacity for that type of activity is not warranted, the subjective-objective criteria of the Restatement and adopted by the majority be applied.^[6] Application of this rule recognizes the difference between negligence and contributory negligence since the required judgment capacity in foreseeing and avoiding the hazards created by others may be substantially greater than that to be comprehended by [70 N.J. 458] one's own acts.^[7] See Zuckerbrod v. Burch, 88 N.J.Super. 1, 8, 210 A.2d 425 (App.Div.1965); Note, Supra fn. 4, 1962 Duke L.J. at 142--143; 2 Harper & James, supra, Law of Torts, § 16.8 at 40 (Supp.1968); Roberts v. Ring, 143 Minn. 151, 173 N.W. 437 (1919). If the infant between ages 7 and 16 is found not to have been occupied in an adult activity, the Restatement rule adopted by the majority would be applicable. As to those 16 or over I would apply the adult standard.

I would affirm the judgment of the Appellate Division.

[1] We are advised at oral argument that plaintiff has also filed suit in Vermont against the owner of the ski resort.

[2] Although the charge to the jury in this case omitted the word intelligence, we do not believe the defendant was thereby prejudiced in the light of the charge as a whole and the facts of the case. There was no objection to the charge based on this omission, nor did the Appellate Division notice it. See 134 N.J.Super., Supra, at 104, 338 A.2d 820.

[3] The Restatement Comment states that the rule in § 283A has seldom been applied to anyone over the age of 16 but that no definite line can be drawn.

__________

[1] The Restatement reads as follows:

§ 283A. Children.

If the actor is a child, the standard of conduct to which he must conform to avoid being negligent is that of a reasonable person of like age, intelligence, and experience under like circumstances.

[2] No license is required for a motorized bike, but a ten-speed bike can be pedaled at 25 miles per hour on a flat road. The U.S. Consumer Product Safety Commission reports that there are 500 to 1000 fatalities and about 500,000 permanently crippled each year from bicycle mishaps.

[3] Dean Shulman acknowledged that 'in some situations a minor is fully as competent as a person over twenty-one and should be held to the same standard of conduct.' Shulman, 'The Standard of Care Required of Children,' 37 Yale L.J. 618 (1928).

[4] Payments for child responsibilities are made by adults or insurance companies under policies paid for by adults. James, 'Accident Liability Reconsidered: The Impact of Liability Insurance,' 57 Yale L.J. 549, 554--556 (1948). In Note, 'Torts: Application of Adult Standard of Care to Minor Motor Vehicle Operators,' 1962 Duke L.J. 138, 141 it is stated that 'Minors are seldom sued in the absence of insurance, because they usually lack sufficient financial resources to make suit worthwhile.'

[5] Sullivan, The Complete Book of Family Skiing (1966).

[6] Professor Bohlen suggests that where harm has been intended the infant should be held 'to exactly the same extent as for his failure to conform to those standards of conduct which are obligatory upon normal persons.' 'Liability in Torts of Infants and Insane Persons,' 23 Mich.L.Rev. 9, 32 (1924). See Note, 'A Proposal for a Modified Standard of Care for the Infant Engaged in an Adult Activity,' 42 Ind.L.J. 405 (1967).

[7] Shulman, Supra fn. 3 commented:

The standard of conduct to which an infant is to be held when his own liability is in question may properly be quite different from that to which he is to be held when he seeks to recover from an admittedly egligent defendant. It is apparent that different considerations may be involved in these several types of cases. There is a strog policy in favor of protecting children from losses attributable to their immaturity. It would be quite plausible, therefore, for a court to be more lenient toward children whose injuries are attributable, not only to their immaturity, but also to conceded tortious conduct on the part of the defendant, than toward children who are the sole responsible causes of injury to others. (37 Yale L.J. at 619).

D'ANGELO et al.

[253 P.2d 676] [116 Cal.App.2d 312] Shirley, Saroyan, Calvert & Sullivan, San Francisco, for appellant.

Alexander, Bacon & Mundhenk, San Francisco, Herbert Chamberlin, San Francisco, for respondent.

DOOLING, Justice.

The plaintiff appeals from a judgment for the defendants entered after a demurrer was sustained to her first amended complaint without leave to amend. The complaint is in three counts. Count one alleges a battery by defendant Salvatore D'Angelo, a minor of the age of four years; the second count alleges injuries suffered by the plaintiff as the proximate result of the minor defendant negligently shoving and pushing the plaintiff violently to the floor; the third count seeks a recovery from the parents of the child for their negligence in failing to warn or inform plaintiff of the habit of the child of violently attacking other people. According to the allegation the plaintiff was by the minor defendant 'pushed, impelled and knocked * * * violently to the floor' and suffered serious injuries including a fracturing of the bones of both her arms and wrists.

[116 Cal.App.2d 313] The two counts against the minor will be discussed together. Appellant points to the language of Civil Code, section 41: 'A minor, or person of unsound mind, of whatever degree, is civilly liable for a wrong done by him, but is not liable in exemplary damages unless at the time of the act he was capable of knowing that it was wrongful.'

This section is based upon sections 23 and 24 of the Field Commission's draft of a Civil Code which was submitted to the New York Legislature in 1865. This may be an anachronistic vestige of earlier common law principles, in other fields now outmoded, of liability without fault for trespass vi et armis (see Bohlen, Liability In Tort Of Infants And Insane Persons, 23 Mich.L.Rev. 9) but it remains true that our legislature in Civ.Code, sec. 41 above quoted by providing that a minor or person or unsound mind is civilly liable for wrongs done by him, and particularly by the qualification that he shall not be held for exemplary damages unless he was capable of knowing that the act was wrongful, has indicated clearly that it intended that a minor or person of unsound mind should be liable in compensatory damages for his tortious conduct even though he was not capable of knowing the wrongful character of his act at the time that he committed it. Startling as this idea may be at first blush, we are bound by this legislative declaration and taking it, and the state of the common law with relation to the liability of infants and persons of unsound mind of which it was intended as a codification, it is our duty to determine the legislative intent and to enforce it.

It is generally stated in 27 Am.Jur., Infants, sec. 90, pp. 812-813: 'Liability of an infant in a civil action for his torts is imposed as a mode, not of punishment, but of compensation. If property has been destroyed or other loss occasioned by a wrongful act, it is just that the loss should fall upon the estate of the wrongdoer rather than on that of a guiltless person, and that without reference to the question of moral [253 P.2d 677] guilt. Consequently, for every tortious act of violence or other pure tort, the infant tort-feasor is liable in a civil action to the injured person in the same manner and to the same extent as an adult. * * * Infancy, being in law a shield and not a sword, cannot be pleaded to avoid liability for frauds, trespasses, or torts. * * *

'A child of tender years may be held liable for acts [116 Cal.App.2d 314] of violence, and liability has often been imposed for the injuries caused by such acts, although committed in play and without the intent to inflict substantial injury. Of course, if the injury was an accident, or the acts of the child were only the natural activity of friendly play, there is no liability.'

So Prosser in his work on Torts, pp. 1085-1086 says:

'The law of torts * * * has been more concerned with the compensation of the injured party than with the moral guilt of the wrongdoer, and has refused to hold that an infant is immune from assault and battery, trespass, conversion, defamation, seduction, and negligence. * * *

'This general rule denying immunity must, however, be qualified in a number of respects. In many torts, the state of mind of the actor is an important element. For example, an intent to bring about physical contact is necessary to battery, and in most jurisdictions 'scienter,' or intent to deceive, is said to be essential to deceit. It has been recognized that a child may be of such tender years that he is not an intelligent actor and is incapable of the specific intent required, so that the tort has not been committed, and the event is to be classified as an unavoidable accident. Likewise, in the case of negligence, children have been recognized as a special group to whom a more or less subjective standard of conduct is to be applied, which will vary according to their age, intelligence and experience, so that in many cases immunity is conferred in effect by finding merely that there has been no negligence.'

The same qualification last quoted from Prosser is stated in 27 Am.Jur. sec. 91, pp. 813-814: 'The general rule that infants are responsible, like other persons, for their torts is subject to the qualification that the torts for which they are so liable must not involve an element necessarily wanting in their case. Their liability may be affected by their mentality. Thus, in the case of slander, malice is a necessary ingredient in the wrong. * * * It is obvious, therefore, that in the case of slander an infant cannot be held liable for his tort until he arrives at that age or acquires that capacity which renders him morally responsible for his actions. * * * There is authority to the effect that a minor charged with actionable negligence is not to be held to the standard of care of an adult without regard to his nonage and want of experience. Reasonable care, having regard to the age and stage of development of the individual, [116 Cal.App.2d 315] is required of minors as well as adults, and no different measure is to be applied to their primary than to their contributory faults. * * * A child is required to exercise only that degree of care which the great mass of children of the same age ordinarily exercise * * * taking into account the experience, capacity, and understanding of the child.'

See also 1 Cooley on Torts, 4th Ed., sec. 64, pp. 186-187, sec. 66, p. 194 et seq.; Harper on Torts, sec. 282, pp. 616-617.

From these authorities and the cases which they cite it may be concluded generally that an infant is liable for his torts even though he lacks the mental development and capacity to recognize the wrongfulness of his conduct so long as he has the mental capacity to have the state of mind necessary to the commission of the particular tort with which he is charged. Thus as between a battery and negligent injury an infant may have the capacity to intend the violent contact which is essential to the commission of battery when the same infant would be incapable of realizing that his heedless conduct might foreseeably lead to injury to another which is the essential capacity of mind to create liability for negligence.

[253 P.2d 678] We may take it as settled in the case of infants as stated in the quotation from Am.Jur. above set out that 'no different measure (of negligence) is to be applied to their primary than to their contributory faults.' In a case involving the question of the liability of an infant for his negligent conduct the court in Hoyt v. Rosenberg, 80 Cal.App.2d 500 at pages 506-507, 182 P.2d 234, at page 238, 173 A.L.R. 883, said: 'While the question as to whether a minor has been negligent in certain circumstances is ordinarily one of fact for the jury, an affirmative finding thereon * * * must conform to and be in accordance with the established rule that a minor is expected to use, not the quantum of care expected of an adult, but only that degree or amount of care which is ordinarily used by children of the same age under similar circumstances.' This is the same test applied in determining a child's contributory negligence. (19 Cal.Jur., Negligence, sec. 41, pp. 604-605.)

So far as the count charging the infant defendant with neglience is concerned the question presented to the court is whether as a matter of common knowledge we can say that a child four years of age lacks the mental capacity [116 Cal.App.2d 316] to realize that his conduct which is not intended to bring harm to another may nevertheless be reasonably expected to bring about that result. In the absence of compelling judicial authority to the contrary in the courts of this state we are satisfied that a four year old child does not possess this mental capacity. In the case of Crane v. Smith, 23 Cal.2d 288, 301, 144 P.2d 356, 364, the court said of a three year old child: 'And since Janice was too young to be guilty of contributory negligence, the appellant's liability to her is established.' In support of this holding the court cited Gonzales v. Davis, 197 Cal. 256, 240 P. 16, which involved a five year old child.

Appellant cites Baugh v. Beatty, 91 Cal.App.2d 786, 793, 205 P.2d 671, 675, where the court said of a four year old boy: 'Whether a minor of tender years has conducted himself with the care and prudence due from one of his years and experience is strictly a question of fact for the jury.' The court cited only Opelt v. Al. G. Barnes Co., 41 Cal.App. 776, 183 P. 241, which involved a ten year old child. The child had been bitten by a chimpanzee at a circus and the court later stated the question to be 'whether plaintiff knowingly and voluntarily invited the injury' and 'knowingly or consciously placed himself in danger.' Such conduct is more than negligence since it involves the intentional taking of a risk and the opinion on its face indicates that the court was making no clear distinction between mere negligent conduct and deliberate and premeditated conduct.

No purpose will be served by reviewing all the authorities. None has been found in this State which we feel compels us to hold that a four year old has the mental capacity for negligent conduct. It is stated in a note collecting the cases from other jurisdictions in 107 A.L.R. 102 et seq.: 'In a majority of the cases it seems that the courts have regarded a child between the ages of four and five years as incapable of personal negligence, the rule of conclusive incapacity applying to a child of such an age.' (See further cases collected in the supplement to this note in 174 A.L.R. 1119.) We are satisfied from our own common knowledge of the mental development of four year old children that it is proper to hold that they have not at that age developed the mental capacity for foreseeing the possibilities of their inadvertent conduct which would rationally support a finding that they were negligent. The mental development of children from that age forward is so rapid that cases such as Smith v. [116 Cal.App.2d 317] Harger, 84 Cal.App.2d 361, 191 P.2d 25 dealing with a five year old child are not helpful to us.

When it comes to the count charging battery a very different question is presented. We certainly cannot say that a four year old child is incapable of intending the violent or the harmful striking of another. Whether a four year old child had such intent presents a fact question; and in view of section 41 of the Civil Code which makes the recognition of the wrongful [253 P.2d 679] character of the tort immaterial so far as the liability for compensatory damages is concerned, we must hold that the count charging battery states a cause of action.

The third count is without question sufficient to state a cause of action against the defendant parents. It alleges that these defendants employed plaintiff for the first time to act as baby sitter for their son, that the son 'habitually engaged in violently attacking and throwing himself forcibly and violently against other people, and violently shoving and knocking them, all of which said defendant parents knew', that said 'parents negligently and carelessly failed to warn plaintiff of said child's said traits and disposition and negligently and carelessly failed to inform plaintiff that said child habitually indulged in such violent and furious attacks on others,' and that shortly after plaintiff entered on her duties in the home the child attacked her to her resultant injury.

While it is the rule in California, as it is generally at the common law, that there is no vicarious liability on a parent for the torts of a child there is 'another rule of law relating to the torts of minors which is somewhat in the nature of an exception, and that is that a parent may become liable for an injury caused by the child, where the parent's negligence made it possible for the child to cause the injury complained of, and probable that it would do so.' Buelke v. Levenstadt, 190 Cal. 684, 689, 214 P. 42, 44; Rocca v. Steinmetz, 61 Cal.App. 102, 214 P. 257.

Section 316, Restatement of Torts states the rule:

'A parent is under a duty to exercise reasonable care so to control his minor child as to prevent it from intentionally harming others or from so conducting itself as to create an unreasonable risk of bodily harm to them, if the parent

'(a) knows or has reason to know that he has the ability of control his child, and

'(b) knows or should know of the necessity and opportunity for exercising such control.'

In a note in 155 A.L.R. at p. 87 [116 Cal.App.2d 318] cases are collected under the following statement: 'The parent will incur liability for his minor child's intentional acts of violence or damage to persons or property if, knowing of the child's vicious or destructive tendencies or acts, he fails to exercise reasonable measures to restrain or discipline the child and thus encourages or acquiesces in such misconduct on the part of the child.'

Among the cases there cited are Condel v. Savo, 350 Pa. 350, 39 A.2d 51, 155 A.L.R. 81, which held liable the parents of a boy who assaulted a younger child and threw him down an embankment where the boy was in the habit of attacking younger children and the parents with knowledge of such conduct had failed to exercise reasonable care to control him; Norton v. Payne, 154 Wash. 241, 281 P. 991, where under similar circumstances of previous conduct and lack of restraint the child struck a younger child in the eye with a stick; Ryley v. Lafferty, D.C., 45 F.2d 641, also an assault on a younger child with similar knowledge of previous conduct and lack of restraint; Hoverson v. Noker, 60 Wis. 511, 19 N.W. 382, where two young boys were in the habit of shooting guns and shouting a passersby and the parents with knowledge took no care to prevent their conduct; Johnson v. Glidden, 11 S.D. 237, 76 N.W. 933, where with knowledge that he was using it negligently the parents permitted their son to continue in possession of an air gun.

Most nearly in point is Zuckerberg v. Munzer, 197 Misc. 791, 95 N.Y.S.2d 856, affirmed 277 App.Div. 1061, 100 N.Y.S.2d 910. In this case, as in ours, a person employed in the household was attacked by a young son. Plaintiff charged that the boy's tendency to assault people was well known to the parent and that the parent had not warned the plaintiff of this propensity. The court citing Harper's Law to Torts, sec. 283 said: 'There are situations in which the parent may be held liable * * * 4. Where the parent's negligence consists entirely of his failure to restrain the child from vicious conduct imperilling others, when the parent has knowledge of [253 P.2d 680] the child's propensity toward such conduct.'

See also: Prosser on Torts, p. 914; Shearman & Redfield on Negligence, Rev.Ed.Zipp, sec. 144, p. 344; 67 C.J.S, Parent and Child, § 68, pp. 798-800; Agnesini v. Olsen, 277 App.Div. 1006, 100 N.Y.S.2d 338; Sawyer v. Kelly, 194 Okl. 516, 153 P.2d 97; Mazzocchi v. Seay, 126 W.Va. 490, 29 S.E.2d 12; Gudziewski v. Stemplesky, 263 Mass. 103, 160 N.E. 334; [116 Cal.App.2d 319] Kuchlik v. Feuer, 239 App.Div. 338, 267 N.Y.S. 256; Vallency v. Rigillo, 91 N.J.L. 307, 102 A. 348; Davis v. Gavalas, 37 Ga.App. 242, 139 S.E. 577; Mendola v. Sambol, 166 Pa.Super. 351, 71 A.2d 827.

Respondent relies on Weber v. Pinyan, 9 Cal.2d 226, 70 P.2d 183, 112 A.L.R. 407; Hagerty v. Powers, 66 Cal. 368, 5 P. 622; Figone v. Guisti, 43 Cal.App. 606, 185 P. 694; and Hudson v. Von Hamm, 85 Cal.App. 323, 259 P. 374 as stating a different rule for California. Hagerty v. Powers was a case in which the complaint alleged that the defendant father negligently etc. permitted his eleven year old son to have a loaded revolver. The complaint did not allege any propensities in the child making it dangerous for him to have a gun or that any such was known to the father. The court said 'that a father is not liable * * * for the torts of his child, committed without his knowledge, consent, or sanction'. [66 Cal. 368, 5 P. 622.] We entertain no doubt that today if the complaint stated facts showing traits in the child making it dangerous to let him have a loaded pistol and knowledge of those traits by the father it would be held to state a cause of action. The case would then on principle be no different from Rocca v. Steinmetz, supra, 61 Cal.App. 102, 214 P. 257, where liability was imposed on a father who negligently allowed his son to drive an automobile with knowledge that he was a careless and reckless driver.

Figone v. Guisti, supra, 43 Cal.App. 606, 185 P. 694, involved a 17 year old boy who shot another with a pistol left by the boy's father in a drawer. No proof was made that the boy was reckless or unfit in any way to have access to a loaded pistol. Such proof was attempted by showing that the gun on a previous occasion had been exhibited by the boy to another. The court said of this evidence: 'There is nothing in this evidence to show that young Guisti showed any inclination to injure any one.' 43 Cal.App. at page 612, 185 P. at page 697.

Hudson v. Von Hamm, supra, 85 Cal.App. 323, 259 P. 374 was an attempt to impose vicarious liability on the parent for a tort committed by the child in Hawaii, where by statute the parent even without fault is made liable for the torts of his child. The court held the enforcement of such liability contrary to the policy of the forum. There was no discussion of the question of the parent's liability for his own negligence. The court 85 Cal.App. at page 326, 259 P. at page 376, quoted Shearman & Redfield on Negligence to the following effect: 'He is liable, however, only for his own fault, and not for that of the child.' The only [116 Cal.App.2d 320] allegation of knowledge by the parent was that the child was 'disposed to climb about the furniture', clearly not enough to show dangerous conduct.

In Weber v. Pinyan, supra, 9 Cal.2d 226, at page 235, 70 P.2d 183, at page 188, 112 A.L.R. 407, the court said: 'It is the settled rule in this state that a parent is not liable for the tort of his minor child without participation in the fault by the parent.' This was only a cryptic way of saying that where the parent is without fault he is not liable for the tort of his minor child.

The judgment is reversed with directions to the trial court to overrule the demurrer to the first and third counts of the amended complaint.

NOURSE, P. J., and GOODELL, J., concur.

[826 F.2d 1555] Arthur L. Klein, Arnstein, Gluck, Lehr, Barron & Milligan, Chicago, Ill., for plaintiff-appellant.

Byron D. Knight, Judge & Knight, Ltd., Park Ridge, Ill., for defendant-appellee.

Before BAUER, Chief Judge, and CUDAHY and POSNER, Circuit Judges.

POSNER, Circuit Judge.

The high crime rate in the United States has interacted with expanding notions of tort liability to make suits charging hotel owners with negligence in failing to protect their guests from criminal attacks increasingly common. See Annot., 28 A.L.R.4th 80 (1984). Dula McCarty, a guest at the Pheasant Run Lodge in St. Charles, Illinois, was assaulted by an intruder in her room, and brought suit against the owner of the resort. The suit charges negligence, and bases federal jurisdiction on diversity of citizenship. The parties agree that Illinois law governs the substantive issues. The jury brought in a verdict for the defendant, and Mrs. McCarty appeals on a variety of grounds.

In 1981 Mrs. McCarty, then 58 years old and a merchandise manager for Sears Roebuck, checked into Pheasant Run--a large resort hotel on 160 acres outside Chicago--to attend a Sears business meeting. In one wall of her second-floor room was a sliding glass door equipped with a lock and a safety chain. The door opens onto a walkway that has stairs leading to a lighted courtyard to which there is public access. The drapes were drawn and the door covered by them. Mrs. McCarty left the room for dinner and a meeting. When she returned, she undressed and got ready for bed. As she was coming out of the bathroom, she was attacked by a man with a stocking mask. He beat and threatened to rape her. She fought him off, and he fled. He has never been caught. Although Mrs. McCarty's physical injuries were not serious, she claims that the incident caused prolonged emotional distress which, among other things, led her to take early retirement from Sears.

Investigation of the incident by the police revealed that the sliding glass door had been closed but not locked, that it had been pried open from the outside, and that the security chain had been broken. The intruder must have entered Mrs. McCarty's room by opening the door to the extent permitted by the chain, breaking the chain, and sliding the door open the rest of the way. Then he concealed himself somewhere in the room until she returned and entered the bathroom.

Mrs. McCarty argues that the judge should have granted her motion for judgment notwithstanding the jury's verdict for the defendant. But she failed to move for a directed verdict on the issue of the defendant's negligence, and that is a prerequisite to judgment n.o.v. Fed.R.Civ.P. 50(b). It is true that she made a motion for a directed verdict on the issue of her contributory negligence, which was denied, and that the defendant made a motion for a directed verdict on the issue of its negligence, which was also denied, but these motions were not equivalent to the motion she failed to make. Even if she had been innocent of contributory negligence as [826 F.2d 1556] a matter of law, this would not have made the defendant guilty of negligence as a matter of law; in many accidents, neither injurer nor victim is at fault, and then there is no liability. Similarly, all that the denial of the defendant's motion for a directed verdict showed was that the defendant was not innocent of negligence as a matter of law; it could of course be guilty of negligence as a matter of law. Thus, neither motion for directed verdict presented the question whether the issue of the defendant's negligence should be withdrawn from the jury and resolved in the plaintiff's favor. She could not present that issue for the first time in her motion for judgment n.o.v.

The modern rationale for the rule that a motion for directed verdict is a prerequisite to judgment n.o.v. is that the opposing party should have a chance to rectify (or at least seek the court's leave to rectify) deficiencies in his evidence before it is too late, that is, before the case goes to the jury. McKinnon v. City of Berwyn, 750 F.2d 1383, 1388 (7th Cir.1984); see also Benson v. Allphin, 786 F.2d 268, 273-74 (7th Cir.1986). That rationale is applicable to this case. After both motions for directed verdict (the plaintiff's on contributory negligence, and the defendant's on negligence) were denied, the defendant had no reason to think it hadn't put in enough evidence to get to the jury on the issue of liability. If the plaintiff thought otherwise she had to move for a directed verdict on that issue.

As an alternative ground for denying the motion for judgment n.o.v., the district judge correctly pointed out that the case was not so one-sided in the plaintiff's favor that the grant of a directed verdict or judgment n.o.v. in her favor would be proper. Her theories of negligence are that the defendant should have made sure the door was locked when she was first shown to her room; should have warned her to keep the sliding glass door locked; should have equipped the door with a better lock; should have had more security guards (only two were on duty, and the hotel has more than 500 rooms), cf. Nordmann v. National Hotel Co., 425 F.2d 1103, 1107 (5th Cir.1970); should have made the walkway on which the door opened inaccessible from ground level; should have adopted better procedures for preventing unauthorized persons from getting hold of keys to guests' rooms; or should have done some combination of these things. The suggestion that the defendant should have had better procedures for keeping keys away from unauthorized persons is irrelevant, for it is extremely unlikely that the intruder entered the room through the front door. Compare Danile v. Oak Park Arms Hotel, Inc., 55 Ill.App.2d 2, 203 N.E.2d 706 (1964). The other theories were for the jury to accept or reject, and its rejection of them was not unreasonable. Cf. Courtney v. Remler, 566 F.Supp. 1225, 1233-34 (D.S.C.1983).

There are various ways in which courts formulate the negligence standard. The analytically (not necessarily the operationally) most precise is that it involves determining whether the burden of precaution is less than the magnitude of the accident, if it occurs, multiplied by the probability of occurrence. (The product of this multiplication, or "discounting," is what economists call an expected accident cost.) If the burden is less, the precaution should be taken. This is the famous "Hand Formula" announced in United States v. Carroll Towing Co., 159 F.2d 169, 173 (2d Cir.1947) (L. Hand, J.), an admiralty case, and since applied in a variety of cases not limited to admiralty. See, e.g., United States Fidelity & Guaranty Co. v. Jadranska Slobodna Plovidba, 683 F.2d 1022, 1026 (7th Cir.1982); Maryland Cas. Co. v. City of Jackson, 493 So.2d 955, 960 n. 3 (Miss.1986) (dictum); People Express Airlines, Inc. v. Consolidated Rail Corp., 100 N.J. 246, 266-67, 495 A.2d 107, 117-18 (1985); Micallef v. Miehle Co., 39 N.Y.2d 376, 386, 384 N.Y.S.2d 115, 348 N.E.2d 571, 577-78 (1976); Phillips v. Croy, 173 Ind.App. 401, 404-05, 363 N.E.2d 1283, 1285 (1977); Benlehr v. Shell Oil Co., 62 Ohio App.2d 1, 9 and n. 5, 402 N.E.2d 1203, 1208 and n. 5 (1978); Golden v. McCurry, 392 So.2d 815, 819 (Ala.1980) (separate opinion); 3 Harper, James & Gray, The Law of Torts Sec. 16.9, at pp. 467- [826 F.2d 1557] 68 (2d ed. 1986); Prosser and Keeton on the Law of Torts Sec. 31, at p. 173 (5th ed. 1984); cf. East River S.S. Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, 106 S.Ct. 2295, 2302, 90 L.Ed.2d 865 (1986); Prentis v. Yale Mfg. Co., 421 Mich. 670, 687, 365 N.W.2d 176, 184 (1984).

We are not authorized to change the common law of Illinois, however, and Illinois courts do not cite the Hand Formula but instead define negligence as failure to use reasonable care, a term left undefined. See, e.g., Hardware State Bank v. Cotner, 55 Ill.2d 240, 247-48, 302 N.E.2d 257, 262 (1973); Denniston v. Skelly Oil Co., 47 Ill.App.3d 1054, 1067, 6 Ill.Dec. 77, 87, 362 N.E.2d 712, 722 (1977). But as this is a distinction without a substantive difference, we have not hesitated to use the Hand Formula in cases governed by Illinois law. See EVRA Corp. v. Swiss Bank Corp., 673 F.2d 951, 958 (7th Cir.1982); Davis v. Consolidated Rail Corp., 788 F.2d 1260, 1263-64 (7th Cir.1986). The formula translates into economic terms the conventional legal test for negligence. This can be seen by considering the factors that the Illinois courts take into account in negligence cases: the same factors, and in the same relation, as in the Hand Formula. See Hendricks v. Peabody Coal Co., 115 Ill.App.2d 35, 45-46, 253 N.E.2d 56, 61 (1969); Bezark v. Kostner Manor, Inc., 29 Ill.App.2d 106, 111-12, 172 N.E.2d 424, 426-27 (1961). Unreasonable conduct is merely the failure to take precautions that would generate greater benefits in avoiding accidents than the precautions would cost.

Ordinarily, and here, the parties do not give the jury the information required to quantify the variables that the Hand Formula picks out as relevant. That is why the formula has greater analytic than operational significance. Conceptual as well as practical difficulties in monetizing personal injuries may continue to frustrate efforts to measure expected accident costs with the precision that is possible, in principle at least, in measuring the other side of the equation--the cost or burden of precaution. Cf. Conway v. O'Brien, 111 F.2d 611, 612 (2d Cir.1940) (L. Hand, J.), rev'd on other grounds, 312 U.S. 492, 61 S.Ct. 634, 85 L.Ed. 969 (1941). For many years to come juries may be forced to make rough judgments of reasonableness, intuiting rather than measuring the factors in the Hand Formula; and so long as their judgment is reasonable, the trial judge has no right to set it aside, let alone substitute his own judgment.

Having failed to make much effort to show that the mishap could have been prevented by precautions of reasonable cost and efficacy, Mrs. McCarty is in a weak position to complain about the jury verdict. No effort was made to inform the jury what it would have cost to equip every room in the Pheasant Run Lodge with a new lock, and whether the lock would have been jimmy-proof. The excluded exhibits (of which more later) were advertisements for locks, and Mrs. McCarty's lawyer expressed no interest in testing the claims made in them, or in calculating the expense of installing new locks in every room in the resort. And since the door to Mrs. McCarty's room was unlocked, what good would a better lock have done? No effort was made, either, to specify an optimal security force for a resort the size of Pheasant Run. No one considered the fire or other hazards that a second-floor walkway not accessible from ground level would create. A notice in every room telling guests to lock all doors would be cheap, but since most people know better than to leave the door to a hotel room unlocked when they leave the room--and the sliding glass door gave on a walkway, not a balcony--the jury might have thought that the incremental benefits from the notice would be slight. Mrs. McCarty testified that she didn't know there was a door behind the closed drapes, but the jury wasn't required to believe this. Most people on checking into a hotel room, especially at a resort, are curious about the view; and it was still light when Mrs. McCarty checked in at 6:00 p.m. on an October evening.

It is a bedrock principle of negligence law that due care is that care which is optimal given that the potential victim is himself reasonably careful; a careless person [826 F.2d 1558] cannot by his carelessness raise the standard of care of those he encounters. Davis v. Consolidated Rail Corp., supra, 788 F.2d at 1265. The jury may have thought it was the hotel's responsibility to provide a working lock but the guest's responsibility to use it. See Brewer v. Roosevelt Motor Lodge, 295 A.2d 647, 652 (Me.1972). We do not want to press too hard on this point. A possible explanation for the condition of the door as revealed by the police investigation is that Mrs. McCarty on leaving the room for the evening left the door unlocked but with the safety chain fastened, and she might have been reasonable in thinking this a sufficient precaution. But it would not follow that the hotel was negligent, unless it is negligence to have sliding doors accessible to the public, a suggestion the jury was not required to buy. We doubt whether a boilerplate notice about the dangers of unlocked doors would have altered the behavior of the average guest; in any event this too was an issue for the jury. Cf. Rosier v. Gainsville Inns Associates, Ltd., 347 So.2d 1100, 1102 (Fla.App.1977); Otwell v. Motel 6, Inc., 755 F.2d 665, 667 (8th Cir.1985) (per curiam).

Now it is true that in Illinois an innkeeper, which in contemplation of law this defendant is, is required to use a high (not merely the ordinary) standard of care to protect its guests from assaults on the innkeeper's premises. Mrzlak v. Ettinger, 25 Ill.App.3d 706, 712-13, 323 N.E.2d 796, 800 (1975); Danile v. Oak Park Arms Hotel, Inc., supra, 55 Ill.App.2d at 8-9, 203 N.E.2d at 709. This is not the general rule, see, e.g., Kveragas v. Scottish Inns, Inc., 733 F.2d 409, 413 (6th Cir.1984); Peters v. Holiday Inns, Inc., 89 Wis.2d 115, 123-24, 278 N.W.2d 208, 212 (1979); Phillips Petroleum Co. v. Dorn, 292 So.2d 429, 431-32 (Fla.App.1974), though it has some ambiguous support in Louisiana, see Kraaz v. La Quinta Motor Inns, Inc., 410 So.2d 1048 (La.1982)--ambiguous because while the court said that "a guest is entitled to a high degree of care and protection," it promptly added that "the innkeeper has a duty to take reasonable precautions against criminals" (id. at 1053, emphasis added). Conceivably, as suggested in Dorn, it is no longer the rule in Illinois either, though Yamada v. Hilton Hotel Corp., 60 Ill.App.3d 101, 112, 17 Ill.Dec. 228, 237, 376 N.E.2d 227, 236 (1977), decided after Dorn, suggests it is. The rule may simply be an inadvertent extrapolation from the principle (see Restatement (Second) of Torts, Sec. 314A and comment e (1965); Kveragas v. Scottish Inns, Inc., supra, 733 F.2d at 412) that an innkeeper, like a common carrier but unlike a mere bystander, has a duty to prevent (or rescue from) dangers created by third parties. See Fortney v. Hotel Rancroft, Inc., 5 Ill.App.2d 327, 331, 125 N.E.2d 544, 546 (1955), seeming to equate these distinct propositions.

The rule, if it is a rule, may be defensible however; and whether it is or is not defensible is relevant to whether it is a genuine rule or a mere inadvertence. Ordinarily the innkeeper knows much more about the hazards of his trade than the guest, and can take reasonable (=cost-justified) steps to reduce them, while ordinarily the guest can do little to protect himself against them. See Banks v. Hyatt Corp., 722 F.2d 214, 226-27 (5th Cir.1984). Pheasant Run, Inc. knows more about the danger of break-ins to guest rooms at its lodge than the guests do, and more about the alternative methods for preventing such break-ins, as well. Maybe this asymmetry in the parties' position should make the defendant's standard of care higher than it would be in, say, an ordinary collision case. See Danile v. Oak Park Arms Hotel, Inc., supra, 55 Ill.App.2d at 6-8, 203 N.E.2d at 708-09. But it does not make the defendant's liability strict. In this case there was evidence of negligence but not so much as to establish liability as a matter of law or (the plaintiff's alternative argument) to require a new trial. And the rule, based as it seems to be on an asymmetry in the parties' abilities to prevent mishaps, has a certain hollowness in a case such as this, where the victim may have failed to take an elementary precaution--locking the sliding door before leaving the room.

[826 F.2d 1559] The next issue that Mrs. McCarty seeks to raise is whether the judge should have instructed the jury to decide whether she had been contributorily negligent. She argues that there was no evidence of her contributory negligence. Pheasant Run is not in the middle of a large city and it might not occur to a guest that a safety chain on a sliding door to the outside was an inadequate protection against nocturnal marauders. On the other hand Mrs. McCarty was an experienced business traveler, so maybe she should have known better; and most people don't consider a safety chain an adequate substitute for a lock. But even if there was no evidence of contributory negligence, there was no prejudicial error in giving an instruction on it. The jury was clearly and correctly instructed that contributory negligence in Illinois is not a complete defense; it just cuts down the amount of damages that the plaintiff would otherwise be entitled to. This is the principle of comparative negligence, and at the time of the trial of this case it existed in Illinois in its pure form, meaning that the plaintiff is entitled to some damages even if he was more negligent than the defendant. See Alvis v. Ribar, 85 Ill.2d 1, 25-28, 52 Ill.Dec. 23, 421 N.E.2d 886, 897-98 (1981). (The rule has since been modified. See Ill.Rev.Stat. ch. 110, paragraphs 2-1107.1, 2-1116; Davis v. United States, 824 F.2d 549, 551 (7th Cir.1987).) Since the jury returned a verdict for the defendant, rather than a verdict for the plaintiff with truncated damages, it probably thought that the defendant had not been negligent at all or that its negligence had not caused the mishap; in either case the plaintiff's contributory negligence or lack thereof would be moot. It is unlikely that the mere giving of the instruction somehow signaled to the jury the judge's belief that the verdict should be for the defendant.

The remaining questions concern the judge's exclusion of evidence that the plaintiff sought to put before the jury. The exclusion of evidence about proper key-control procedures was proper for a reason we have already indicated: such evidence was not relevant to any plausible theory of the defendant's negligence. Also proper or at least defensible was the judge's decision to exclude evidence of previous criminal activity at Pheasant Run that did not involve breaking into a room through the sliding glass door. The judge admitted evidence of the nine previous break-ins that did. The principal evidence in the previous-crimes category that he excluded was of two alleged sexual assaults and eleven alleged thefts from rooms. This evidence was of limited relevance, at best. One of the so-called assaults involved a complaint from a man who said that he saw a man and woman having intercourse in a hallway and that he sprained his ankle pursuing the man; it is entirely unclear whether the intercourse was coerced or what the relationship of the complainant to the couple was. The circumstances of the other alleged assault are equally shadowy. Neither involved an intrusion into a room. The eleven reports of theft appear to include cases where a guest lost or mislaid an item as well as cases of genuine theft, but in any event are remote from the issues in this case; among other things, none involved forcing the sliding glass door.

A trial judge has broad discretion in administering Rule 403 of the Federal Rules of Evidence, which authorizes him to exclude relevant evidence if its probative significance is substantially outweighed by its prejudicial, confusing, or cumulative effect. Where as here the judge explains the reasoning process behind his exclusions, they will rarely be overturned. See United States v. Beasley, 809 F.2d 1273, 1278-79 (7th Cir.1987). Pheasant Run is a large place, and it is not to be supposed that it would be free of criminal activity no matter how careful (within the bounds of reason) the management was. There is no indication that its experience with criminal activity was abnormal or indicative of a need to take additional precautions. Maybe the jury should have been allowed to figure this out for itself, but a jury's ability to digest statistical evidence is limited, especially when no comparison was attempted by the plaintiff's counsel between the frequency of criminal activity at Pheasant [826 F.2d 1560] Run and at comparable resort hotels, cf. Anderson v. Malloy, 700 F.2d 1208, 1211-12 (8th Cir.1983), and no effort was made to show that precautions which would have averted crimes not involving the forcing of the sliding glass doors would also have averted the attack on Mrs. McCarty.

She also complains about the exclusion from evidence of advertisements for locks for sliding glass doors. These locks are designed to foil intruders, as the advertisements make clear, and Mrs. McCarty argues with some show of reason that the advertised locks appear to be more effective than the locks on the sliding glass doors at Pheasant Run. The problem is the absence of a causal relationship between the failure to have fancy locks and the attack on Mrs. McCarty. There is no evidence that Mrs. McCarty's assailant jimmied the lock. The door was unlocked. The world's fanciest lock--a lock to foil a Houdini--would thus have done her no good, and the failure to install a precaution that would not have avoided this accident (the accident that is the basis of the suit) is not actionable. Kveragas v. Scottish Inns, Inc., supra, 733 F.2d at 415. Her complaint about the exclusion of evidence of inadequate maintenance by the defendant of its sliding glass doors fails for the same reason; there is no indication that her failure to lock the door was due to improper maintenance. Finally, it is merely speculation that if the door had been equipped with a lock that locked automatically when the door was slid closed, the door would not have been left open with merely the safety chain fastened.

AFFIRMED.

[823] 1 WLR 823

[QUEEN'S BENCH DIVISION: MANCHESTER]

ROBERTS AND OTHERS

v.

RAMSBOTTOM

1979 Jan. 31;

Feb. 7

The defendant, who suffered a cerebral haemorrhage unknown to himself, entered and drove his car on a road in a town; he was unaware throughout that he was unfit to drive but his consciousness was impaired or clouded, he had some awareness of his surroundings and the traffic conditions and made a series of deliberate and voluntary though inefficient movements with his hands and legs to manipulate the car controls. He suddenly experienced feelings of queerness and collided with a stationary van. Still unaware that he was unfit to drive, he drove away and then into collision with a vehicle which was parked at the roadside on his near side; as a result the parked vehicle was damaged and its driver and a passenger were injured. The plaintiffs, the vehicle owner, the driver and the passenger, claimed damages from the defendant for loss and personal injuries caused by his negligent driving. The defendant denied negligence and pleaded that he was acting in a state of automatism and was not responsible for his actions.

On the question of liability:-

Held, giving judgment for the plaintiffs, that in an action for negligence against a car driver the standard of care by which his actions were to be judged was an objective standard; and that, albeit he would be able to escape liability if his actions at the relevant time were wholly beyond his control so as to amount to automatism in law, he could not avoid liability on the basis that, owing to some brain malfunction, his consciousness was impaired; that, therefore, the defendant was liable, for in law a state of automatism involved complete loss of consciousness, and in any event, he was guilty of negligence since he continued to drive with awareness of his disabling symptoms and of his collision with the stationary van even though he was unable to appreciate their proper significance (post, pp. 829G, 832E-H, 833A-B).

Hill v. Baxter [1958] 1 Q.B. 277, D.C.; Watmore v. Jenkins [1962] 2 Q.B. 572, D.C. and Nettleship v. Weston [1971] 2 Q.B. 691, C.A. applied.

[824] The following cases are referred to in the judgment:

Glasgow Corporation v. Muir [1943] A.C. 448; [1943] 2 All E.R. 44, H .L.(Sc.).

Gordon v. Wallace (1973) 42 D.L.R. (3d) 342.

Hill v. Baxter [1958] 1 Q.B. 277; [1958] 2 W.L.R. 76; [1958] 1 All E.R. 193, D.C.

Jones v. Dennison [1971] R.T.R. 174, C.A.

Nettleship v. Weston [1971] 2 Q.B. 691; [1971] 3 W.L.R. 370; [1971] 3 All E.R . 581, C.A.

Reg. v. Gosney [1971] 2 Q.B. 674; [1971] 3 W.L.R. 343; [1971] 3 All E.R. 220, C.A.

Reg. v. Isitt [1978] R.T.R. 211, C.A.

Reg. v. Spurge [1961] 2 Q.B. 205; [1961] 3 W.L.R. 23; [1961] 2 All E.R. 688, C.C.A.

Watmore v. Jenkins [1962] 2 Q.B. 572; [1 962] 2 W.L.R. 463; [1962] 2 All E.R . 868, D.C.

Waugh v. James K. Allan Ltd. [1964] 2 Lloyd's Rep. 1, H.L.(Sc.).

No additional cases were cited in argument.

ACTION

By writ issued on June 30, 1976, the first plaintiff, Jack Roberts, the second plaintiff, Jean Roberts, wife of the first plaintiff, and the third plaintiff, Karen Jane Roberts, daughter of the first and second plaintiffs, suing by her father and next friend, brought against the defendant, Arthur Ramsbottom, an action for damages for personal injuries and loss caused by the defendant's negligent driving of a Volvo motor car on June 4, 1976, in Bolton Road, Bury, Lancashire, when it collided with a stationary Triumph motor car owned by the first plaintiff and caused injuries to the second and third plaintiffs. The defendant denied negligence.

The facts are stated in the judgment.

John Stannard for the plaintiffs.

H. K. Goddard and R. D. Machell for the defendant.

Cur. adv. vult.

February 7, 1979. NEILL J. read the following judgment. Mr. and Mrs. Roberts live at 171, Ainsworth Road, Bury. On June 4. 1976, Mrs. Roberts drove in her husband's Triumph car to a launderette in Bolton Road, Bury. Her daughter, Karen, who was born on February 1, 1964, was with her sitting in the front passenger seat. The launderette was called Laundercentre. It was on the south side of Bolton Road between Buxton Street and Fountain Street. Mrs. Roberts approached the shop from the south-west, that is, from the direction of Bolton. She waited for a gap in the traffic and then drove across to the off side of the road and parked outside Laundercentre facing towards Bury. Mrs. Roberts opened I the door and prepared to get out on to the pavement. She turned to pick up her handbag. A moment later she was thrown out on to the pavement. A Volvo car driven by the defendant had come up the road from the direction of Bury and had collided head-on with the Triumph car driven by Mrs. Roberts. Karen had seen the car approaching and had ducked beneath the dashboard but the windscreen of the Triumph car was shattered and Karen was seriously injured by broken glass. Mrs. [825] Roberts also was injured but less seriously. The Triumph car was damaged beyond repair. The collision took place at about 10.20 a.m.

No criticism whatever is made of Mrs. Roberts's driving. It is accepted on behalf of the defendant that the facts which I have outlined and which are not in dispute would, if unexplained, entitle the plaintiffs to damages caused by negligent driving by the defendant. The first plaintiff, Mr. Jack Roberts, sues in respect of the damage to his car and in respect of certain other loss resulting from the collision. His claim is agreed subject to liability at £968.87. The second plaintiff is Mrs. Jean Roberts. She was the driver. She sues in respect of the injuries she suffered. The third plaintiff is Miss Karen Roberts, the daughter. She also sues for damages for personal injuries.

The defendant is Mr. Arthur Ramsbottom. He Jives at 396, Brandlesholme Road, Bury. He was born on December 2, 1902. He was therefore 73 at the date of the collision. His defence is that approximately 20 minutes before the collision he suffered a stroke, that is, a cerebral haemorrhage, which so clouded his consciousness that from that moment he was, through no fault of his own, unable properly to control his car or to appreciate that he was no longer fit to drive. Accordingly, argued Mr. Goddard on behalf of the defendant, the defendant was not negligent.

It is therefore necessary for me to consider the evidence as to the defendant's driving before the collision and the medical evidence as to the effect of his stroke. It is also necessary for me to consider the relevant principles of law.

The defendant's journey to Bolton Road

By profession the defendant was an accountant. When he was 65 he retired from full-time work but he continued to go to work for part of the day. He used to drive every day from his home at 396, Brandlesholme Road to his office in East Street in Bury. It was a journey of about two miles or a little more. Sometimes his wife went with him in order to go shopping. On June 4, 1976, he got ready to leave about 10 o'clock. It was a day his wife was going to go with him. Mrs. Ramsbottom went upstairs to get her coat. She came down. She found that her husband had gone without her. She was astonished because he had never gone off like this before, leaving her behind when he had arranged to take her. It was so unusual an event that after a time she telephoned the police.

Meanwhile, the defendant had set off towards the centre of Bury in his, blue Volvo car. There was no evidence before me relating to the earlier part of his journey. The defendant himself cannot now remember any part of his journey or any of the events of that morning and no other witness threw light on the defendant's movement before he reached Irwell Street. I am entitled to infer, however, and I do infer, that the defendant drove down Brandlesholme Road from his borne at number 396 and then along Crostons Road into Bolton Street and round the roundabout into l the continuation of Bolton Street on the east side of the roundabout. If he had followed his usual route the defendant would have then continued eastwards to the Market Place, turned right into Market Street and then driven into Angouleme Way and Spring Street to his office in East Street.

On that morning, however, instead of following his usual route, the defendant turned south just beyond the roundabout in Bolton Street and went down Irwell Street.

About half-way along Irwell Street on the east side there is a police [826] station. About 10.15 a.m. on June 4, 1976, there was a van parked outside the police station. Sitting in the van were Mr. Kay and Mr. Banks. They were waiting for a colleague. Both Mr. Kay and Mr. Banks gave evidence and there was some conflict of recollection between them about what they saw. I prefer the evidence of Mr. Banks and I accept his account of what happened. This is what he said. He was sitting in the van when be felt a bang at the rear of the van. He got out and saw that the off side corner at the back of the van had been hit by a blue Volvo. It was the defendant's car. The Volvo was at an angle as though it had been trying to overtake too late. The defendant tried to reverse. He had difficulty in getting into gear and when he reversed he moved the car in a jerky manner. Mr. Banks walked back to where the car was. By then the defendant had got out and was walking across the road to the path on the other side. As he crossed the road the defendant was narrowly missed by a gas board van. Mr. Banks asked him if he was all right. He said, "Yes, yes, yes." Mr. Banks asked him if he was sure. "Yes, yes," he said. The defendant gave Mr. Banks the impression that he was slightly dazed and his speech seemed slightly slurred. Mr. Banks noticed when the defendant crossed the road that he had an uneven gait. The defendant got back in his car and moved forward. He pulled up just behind the van, only a foot away. Once more he had to reverse. Mr. Banks again asked him if he was all right and he said he was. "Are you sure now?" said Mr. Banks. "Yes," said the defendant. After he had reversed the second time the defendant drove forward. On this occasion he avoided the van by a good margin and drove off down Irwell Street. As the defendant went down the road, however, Mr. Banks saw that he narrowly missed two men working in the road who waved and shouted. The defendant passed from view. A few minutes later Mr. Banks was joined by the third man in the van and he drove off. By chance his route took him to Bolton Road. There he saw the blue Volvo again. It was outside the Laundercentre. It had collided with the Triumph. The defendant was walking about in the road in a dazed condition.

It is clear that from Irwell Street the defendant had driven across into Tenterden Street and had then turned right into Millett Street. At the end of Millett Street he turned left into Bolton Street and then along Bolton Road. In Bolton Road, about 100 yards or so before he collided with the Triumph, the defendant's car brushed past a boy on a bicycle. The boy, young Mr. Hardman, was just by the Manchester Motor Mart in Bolton Road. He was riding a few inches from the kerb. He was knocked off his bicycle and fell on the pavement. There was plenty of room in the road for the defendant to have passed him normally. A few moments later Mr. Hardman saw the defendant's car crash into the Triumph.

The distance travelled by the defendant from his home to where he collided with the Triumph car was about two-and-a-half miles and involved travelling round a busy part of Bury and going round a number of comers.

The events following the collision

After the collision Mrs. Roberts, Karen and the defendant were taken together by ambulance to hospital. At the hospital it was not appreciated at once that the defendant had had a stroke. [827] At 11.30 a.m. he was seen at the hospital by Police Constable Flanagan. No criticism whatever can be made of the constable for interviewing the defendant. He had asked a nurse if he could see the defendant and had been told that he could. He described the defendant as appearing to be dazed. Constable Flanagan told the defendant that he was making inquiries about the co11ision. He cautioned the defendant. This is what the defendant told him: "I suddenly felt queer and I ran into the van. I felt I all right after that and I carried on. I felt queer again later and I hit the car." A little later he said: "I felt a bit queer before I ran into the van. I went away and felt all right. After that l felt a bit queer again and I hit the other car." The defendant that morning was also questioned by the medical staff at the hospital. I have not seen the hospital notes but it is common ground that the relevant parts of the hospital notes were: reproduced by Dr. Riley in a letter which he wrote to the defendant's insurers dated August 24, 1976. The second paragraph of that letter contains these sentences:

"He was then driving his car at about 10 a.m. when he felt rather dizzy for about 15 minutes and then nauseated. He kept on driving and then he remembers crashing his car before losing consciousness and he was apparently unconscious for about two minutes. He was admitted to Bury General Hospital."

I am satisfied that the information in that paragraph and in the hospital notes must have come originally from the defendant. I consider, however, that there is force in Mr. Goddard's argument, which was supported by the medical evidence, that the information may well have been based on questions and answers and the defendant may have done no more than say yes to various questions which were put to him. I do not therefore attach great importance to what the defendant appears to have told the doctors. But I do attach considerable significance to the defendant's interview with Constable Flanagan. There is no suggestion that the police officer put any words into the defendant's mouth.

The medical evidence

On the day after the collision the defendant was seen by Dr. M. E. Benaim, a consultant physician at Bury General Hospital, where the defendant had been detained. By this stage the defendant was unable to remember anything about his journey to Bolton Road. I understand it is typical for a stroke to be followed by progressive amnesia. He told Dr. Benaim he had blacked out and could not remember any more. The defendant was under Dr. Benaim's care at the hospital. He was very confused for several days and was discharged after about a fortnight. Dr. Benaim was satisfied that the defendant had had a stroke and also thought at one time that he might have had an epileptic attack as well. He agreed with Dr. Evans (to whose evidence I shall have to refer later) that the stroke probably started just before the defendant left home. He expressed the following opinions. First, that once the stroke had started the defendant would not have been completely normal and he would not have been able to judge the quality of his own driving. Secondly, that the defendant's mental condition following the onset of the stroke could be correctly termed a clouding of consciousness. Thirdly, in order to drive in traffic it is necessary for a driver to exercise his will and his capacity to think, and that when stopping and giving way to approaching traffic a [828] deliberate decision has to be made. Fourthly, on the subject of what the defendant said to the police officer and may have told 1he medical staff on June 4. 1976. Dr. Benaim said that he was not certain that the defendant would in fact have felt dizzy and that when he saw the defendant the next day, he himself would not have placed any reliance on what the defendant said. In cross-examination, however, he agreed that the case notes might be an accurate account of what the defendant actually experienced and, further, that he had no reason to doubt that what the defendant said to the police officer was accurate.

The main medical evidence called on behalf of the defendant was the evidence of Dr. John Evans, who is a consultant neurologist of the Salford Group of Hospitals and a lecturer in medicine at the University of Manchester. In addition to giving oral evidence be produced a medical report dated July 11, 1977. In the witness box Dr. Evans told me that he remained of the opinion expressed in that report. l shall therefore refer to that part of his report under the heading "Conclusion:"

"At my examination today"—that is July 11 , 1977—"Mr. Ramsbottom shows evidence of a moderately severe left hemiparesis with sensory loss down the left side of the body and sensory inattention  to visual stimuli in the left  half of his visual field. In addition he shows an impairment of intellect characterised by a marked impairment of short term memory. These neurological signs have been present since the episode on June 4, 1976. I am of the opinion that while his wife was upstairs changing preparatory to going out. Mr. Ramsbottom sustained a stroke causing severe disorientation of thought and impairment of memory, weakness of the left side of the body and inattention of his left visual field. It was in this disorientated condition that he went off in his car, forgetting to take his wife with him, and it was in the same disorientated state that he collided with the bicycle and the van and the car. It is clear that Mr. Ramsbottom was ill at the time of this incident, he did not fully appreciate what he was doing and he had no full control over his movements. He was, in effect, acting in a state of automatism and he was not responsible for his actions. At the same time Mr. Ramsbottom was not aware of the severity of his incapacity and he was not in a position to judge whether or not he was fit enough to take the wheel of his car. He has made a partial recovery from his stroke but still remains severely incapacitated. He is not fit to drive a car. He will continue to need help and care and attention from his wife."

Then Dr. Evans dealt with the suggestion that the defendant might have suffered an epileptic fit and expressed the view that in his opinion he had not.

In his evidence-in-chief Dr. Evans repeated what he had said in his report about automatism. He said that in his view there was no evidence in favour of an epileptic fit having occurred and that he was certain when the defendant had been driving along he was not capable of forming any rational opinion as to whether he was able to drive. And later he said that the clouding of consciousness resulted in the defendant being unable to appreciate fully what had happened or to appreciate that he was incapable of driving the car properly. He described, asI have said, the defendant's condition as a clouding of consciousness. He also expressed the opinion that a person in the defendant's condition on June 4 following his stroke [829] would have given a most misleading account to a police officer or anyone else as to what had happened. In cross-examination, however, Dr. Evans accepted that a person in the defendant's condition might have felt queer and rather dizzy and might have experienced a feeling of nausea. He also agreed that the defendant could have experienced what he described to the police officer.

He was also questioned about the extent of the defendant's consciousness. He agreed that the defendant was not unconscious but that his consciousness was impaired or clouded from the time he set out. He accepted that the defendant's movements in driving were deliberate movements and that to drive along the route which the defendant followed involved purposeful acts. He described the defendant's state at the time of collision with the Triumph as a state of impaired consciousness. Nevertheless, Dr. Evans remained unshaken in his evidence that the defendant did not know that he was driving badly or that he was unfit to drive. He told me that after the initial onset of the stroke further damage to the brain would have occurred all the time during the next hour or so. During that period the defendant's capacity to drive might have fluctuated somewhat but his physical condition must have got worse.

I have summarised the main points of the evidence and r must now state my findings of fact in relation to the defendant's driving and his condition when driving. It is not in dispute that the circumstances of the collision establish a prima facie case of negligence. I can get out my findings shortly as follows.

First, I find that the defendant suffered a stroke on June 4, 1976, and that the onset of the stroke began shortly before he left home at about 10 a.m. Second, before he suffered that stroke the defendant had had no previous symptoms or warning signs. Third, that following the onset of the stroke the defendant's consciousness was impaired. Fourth, that this ate of impaired or clouded consciousness continued throughout the defendant's journey from his home to the point of impact in Bolton Road. Fifth, that the defendant did experience the feelings of queerness which he described to the police officer and did know at the time it happened that he had bit the van. Sixth, that throughout the journey to Bolton Road and up to the moment of impact with the Triumph car the defendant was sufficiently in possession of his faculties (a) to have some though an impaired awareness of his surroundings and the traffic conditions; and (b) to make a series of deliberate and voluntary though inefficient movements of his bands and legs to manipulate the controls ofhis car. Seventh, that the defendant was at no time aware of the fact that he was unfit to drive; accordingly no moral blame can be attached to him for continuing to do so.

I must turn therefore to consider the law applicable to these facts. The standard of care by which a driver's actions arc to be judged in an based on negligence is an objective standard. Every driver, including learner driver:

"must drive in as good a manner as a driver of skill. experience and care, who is sound in wind and limb, who makes no errors of judgment, has good eyesight and hearing and is free from any infirmity: …" see Lord Denning M.R. in Nettleship v. Weston [1971] 2 Q.B. 691, 699.

It is the same standard as that which is applied in the criminal law in relation to offences of dangerous driving and driving without due care [830] and attention. The standard "eliminates the personal equation and is independent of the idiosyncrasies of the particular person whose conduct is in question": see the speech of Lord Macmillan in Glasgow Corporation v. Muir [1943] A.C. 448, 457.

As Salmon L.J. said in Nettleship v. West on [1 971] 2 Q.B. 691, 703: "On grounds of public policy, neither the criminal nor civil responsibility is affected by the fact that the driver in question may be a learner, infirm or drunk." The liability of a driver in tort is not, however, a strict liability Nor is the offence of dangerous driving an absolute offence. In Reg. v. Gosney [1971] 2 Q.B. 674 Mcgaw L.J., in relation to a charge of dangerous driving, said, at p.  680:

“It is not an absolute offence. In order to justify a conviction there must be not only a situation which, viewed objectively, was dangerous, but there must also have been some fault on the part of the driver, causing that situation. ‘Fault’ certainly does not necessarily involve deliberate misconduct or recklessness or intention to drive in a manner inconsistent with proper standards of driving. Nor does fault necessarily involve moral blame. Thus there is fault if an inexperienced or a naturally poor driver, while straining every nerve to do the right thing, falls below the standard of a competent and careful driver. Fault indicates a failure, a falling below the care or skill of a competent and experienced driver, in relation to the manner of the driving and to the relevant circumstances of the case. A fault in that sense, even though it be slight, even though it be a momentary lapse, even though normally no danger would have a risen from it, is sufficient."

As Megaw L.J. said a little later in his judgment in Reg v. Gosney [1971] 2 Q.B. 674, 680: "Such a fault will often be sufficiently proved as an inference from the very facts of the situation." But there may be cases where the driver will be able to raise some matter sufficient to avoid the inference of fault.

In the criminal cases concerned with dangerous driving guidance is given as to the circumstances in which some sudden event will provide a defence. In Reg. v. Spurge [1961] 2 Q.B. 205 Salmon J., in delivering the judgment of the Court of Criminal Appeal, said, at p. 210:

"If, however, a motor-car endangers the public solely by reason of some sudden overwhelming misfortune suffered by the man at the wheel for which he is in no way to blame- if, for example, he suddenly has an epileptic fit or passes into a coma, or is attacked by a swarm of bees or stunned by a blow on the head from a stone, then he is not guilty of driving in a manner dangerous to the public…It would be otherwise if he had felt an illness coming on but still continued to drive, for that would have been a manifestly dangerous thing to do."

A little later, in relation to a defect in the vehicle, he went on, at pp. 210-211:

"There does not seem to this court to be any real distinction between a man being suddenly deprived of all control of a motor-car by some sudden affliction of his person and being so deprived by some defect suddenly manifesting itself in the motor-car. In both cases the motor-car is suddenly out of control of its driver through no fault of his."

[831] In the course of his judgment, at p. 210, Salmon J. also explained that the defendant in what may be called the "sudden affliction" cases may be able to e cape liability on the additional ground that he was not driving at all. It was this ground which was considered by the Divisional Court in Hill v. Baxter [1958] 1 Q.B. 277. Lord Goddard C.J. said, at p. 283: "…there may be cases where the circumstances are such that the accused I could not really be said to be driving at all." And Pearson J. put the matter in these terms, at p. 286:

"In any ordinary case, when once it has been proved that the accused was in the driving seat of a moving car, there is, prima facie, an obvious and irresistible inference that he was d riving it. No dispute or doubt willarise on that point unless and until there is evidence tending to show that by some extraordinary mischance he was rendered unconscious or otherwise incapacitated from controlling the car."

In civil cases too a defendant may be able to rebut a prima facie case of negligence by showing that a sudden affliction has rendered him unconscious or otherwise wholly incapable of controlling the vehicle. In Waugh v. James K. Allan Ltd. [1964] 2 Lloyd's Rep. 1 it was contended in the Inner House of the Court of Session that the driver had been driving negligently. But Lord Clyde L.P., in his judgment in the Inner House of the Court of Session, said, at p. 2:

"In the first place it was contended that Gemmell was driving his lorry in a negligent and dangerous manner and was therefore guilty of negligence. But it seems to me clear on the evidence that the driver was at the time of the accident to the pursuer so completely disabled by the sudden onset of the coronary thrombosis as to have ceased to be responsible for the alarming manoeuvres of his lorry, and the Lord Ordinary had ample evidence upon which he was entitled to negative this ground of fault."

This ground of negligence was not pursued in the House of Lords. Where the only question which was debated was whether the driver should have realised that he was unfit to drive.

Jones v. Dennison [1971] R.T.R. 174 is a similar case. The driver, who was an epileptic, bad a sudden blackout but the argument in the Court of Appeal was concerned wholly with the question whether he was or ought reasonably to have been aware of a tendency on his part to suffer a blackout: see also the Canadian case of Gordon v. Wallace (1973) 42 D.L.R. (3d) 342, and the cases there referred to.

In the present case, however, I am not concerned with a total loss of consciousness but with a clouding or impairment of consciousness. I must turn again for assistance to the criminal cases where specific consideration has been given to what is called the defence of automatism.

In Watmore v. Jenkins [1962] 2 Q.B. 572 the defendant was charged with three offences including dangerous driving and driving without due care and attention. The defendant was a diabetic who had had an attack of infective hepatitis. In the course of driving home from h is office he suffered a hypoglycaemic episode and in a gradually worsening state of concussion he d rove from Mitcham to a point about five miles away in Coulsdon where he crashed into the back of a car. The defendant had no recollection of this part of his journey and had had no warning of the [832] onset of the episode. The justices acquitted the defendant on the grounds that at all material times he was in a state of automatism. The Divisional Court, consisting of five judges presided over by Lord Parker C.J., remitted the case to the justices with a direction to convict. Winn J. who delivered the judgment of the court, said, at p. 586:

"It is…a question of law what constitutes a state of automatism…this expression is no more than a modern catch-phrase which the courts have not accepted as connoting any wider or looser concept than involuntary movement of the body or limbs of a person."

And later, at p. 587, he referred to "such a complete destruction of voluntary control as could constitute in law automatism."

To the same effect was the judgment of the Court of Appeal in Reg. v. Isitt [1978] R.T.R. 211. Lawton L.J. referred to acts done during an epileptic attack and continued, at p. 216: "What the accused does in those circumstances is involuntary. Acts performed involuntarily have come to be known as automatism." But he added, at p. 216:

"It is a matter of human experience that the mind does not always operate in top gear. There may be some difficulty in functioning. If the difficulty does not amount in Jaw to either insanity or automatism, is the accused to be entitled to say 'I am not guilty because my mind was not working in top gear'? In our judgment he is not."

In Reg. v. Isitt [1978] R.T.R. 211 there was medical evidence that at the material time the defendant was suffering from some malfunction of the mind. But the facts showed that he had driven in that state for a considerable distance and his driving was described by Lawton L.J., at p. 216, as "purposeful driving."

Finally, the decision of the Divisional Court in Hill v. Baxter [1958] 1 Q.B. 277 to which I have already referred, provides additional support for the proposition that in law a stat e of automatism involves a complete loss of consciousness.

I am satisfied that in a civil action a similar approach should be adopted. The driver will be able to escape liability if his actions at the relevant time were wholly beyond his control. The most obvious case is sudden unconsciousness. But if he retained some control albeit imperfect control, and his driving, judged objectively, was below the required standard, he remains liable. His position is the same as a driver who is old or infirm. In my judgment unless the facts establish what the law recognises as automat ism the driver cannot avoid liability on the basis that owing to some malfunction of the brain his consciousness was impaired. Mr. Stannard put the matter accurately, as I see it, when he said: "One cannot accept as exculpation anything less than total loss of consciousness."

It is true that in the present case Dr. Evans described the defendant's condition as one of automatism. I am satisfied, however, that his condition did not amount to automatism as that word has been used in the decided cases.

I therefore consider that the defendant is liable in law for his driving when he collided with the Triumph car in Bolton Road.

I also consider that the plaintiffs would be entitled to succeed, if necessary, on the alternative ground put forward, that is that the defendant continued todrive when he was unfit to do so and when he should have [833] been aware of his unfitness. He was aware that be bad been feeling queer and bad hit the van. Owing to his mental state he was unable to appreciate that he should have stopped. As I have said, and I repeat, the defendant was in no way morally to blame, but that is irrelevant to the question of legal liability in tills case. An impairment of judgment does not provide a defence. I consider that the defendant was in law guilty of negligence in continuing to drive because he was aware of his disabling symptoms and of his first collision even though he was not able to appreciate their proper significance.

I turn therefore to the question of damages. [His Lordship considered the evidence relating to damages, and continued:] In those circumstances the damages will be as I have already stated: that is, for the first plaintiff £968.87; for the second plaintiff £700; and for the third plaintiff £2,500.

Judgment for plaintiffs accordingly together with interest to be agreed and costs.

Liberty to apply.

Legal aid taxation of plaintiffs' costs.

Stay for 28 days.

Solicitors: Frederick Howarth Son & Maitland, Bury; A. W. Mawer & Co., Manchester.

L. N. W.

[53 Cal.Rptr.2d 637] [45 Cal.App.4th 1316] Ralph J. Rubenstein, Encino, for Plaintiffs and Appellants.

Clifford & Brown, Michael L. O'Dell and Stephen P. Wainer, Bakersfield, for Defendant and Respondent.

OPINION

ARDAIZ, Presiding Justice.

Defendant and respondent, Margie Wodarz, was involved in a rear-end auto accident with a third party. According to the traffic collision report, respondent left the scene without stopping. A short time later, respondent was involved in a second automobile accident with the plaintiffs and appellants, Mubarak Bashi and Nasim Akhtar.

Respondent has little recollection of either event occurring. According to the traffic report, respondent engaged in some "bizarre" behavior before and after the collision with appellants. Under the heading of "Statement of Witnesses and Remarks" the traffic report contains the following remarks with respect to respondent's statement:

"... Somewhere, shortly after making the turn, she stated, 'I wigged out.' She stated that all she could remember was ramming into the back of someone's vehicle and then continuing east. She had no control of her actions at that time and then she remembered being involved in a second collision at an unknown location on White Lane. She also stated, 'My family has a history of mental problems and I guess I just freaked out.'"

Appellants filed a complaint for negligence. At non-binding arbitration, appellants' claims were denied. The arbitrator made the following comments in support of his decision:

"Although a rear-end collision was involved whereby the Plaintiffs' vehicle was struck by Defendant's vehicle, Defendant produced unrebutted [45 Cal.App.4th 1317] medical expert evidence (Declaration of Terry Lanes, M.D.) indicating the accident was unavoidable due to the Defendant's 'Sudden, unanticipated onset of mental illness' shortly before the impact.

"This evidence was also supported by the traffic accident report setting forth the actions and comments by the Defendant driver, Margie Marie Wodarz, immediately prior to and subsequent to the subject accident indicating uncontrollable mental illness of which the Defendant has no prior warning.

"Accordingly, under such circumstances, the Plaintiffs' claim is denied."

Appellants timely filed a request for trial de novo. Appellants' subsequent motion to reopen discovery, supported by counsel's declaration that the defense of a sudden onset of mental illness was "a complete surprise," was denied.

Thereafter, respondent filed a motion for summary judgment pursuant to Code of Civil Procedure section 437c, arguing that due to the sudden, unanticipated mental disorder, respondent was not negligent as a matter of law and that no triable issue of material fact existed with respect to the issue that respondent was afflicted by the unforeseen onset of the mental disorder. Respondent's motion was granted. Appellants filed a timely notice of appeal from the judgment of dismissal.

DISCUSSION

A. Standard of Review

On appeal from a summary judgment, "it is the task of the reviewing court to determine whether the moving party has established facts which negate the opponent's claims and whether a triable issue of material fact has been shown." (Saldana v. Globe-Weis Systems Co. (1991) 233 Cal.App.3d 1505, 1515, 285 Cal.Rptr. 385.)

When summary judgment is granted in favor of the defendant, the defendant must either establish an affirmative defense to the cause of action or disprove at least one essential element of the cause of action. (Code Civ.Proc., § 437c, subd. (n).)

This court recently summarized the standard of review as follows:

"Summary judgment is proper if the supporting papers are sufficient to sustain a judgment in favor of the moving party as a matter of law and the [45 Cal.App.4th 1318] opposing party presents no evidence giving rise to a triable [53 Cal.Rptr.2d 638] issue as to any material fact. (Code Civ.Proc., § 437c, subd. (c).) To prevail on a summary judgment motion, the defendant must conclusively negate a necessary element of the plaintiff's case or establish a complete defense. [Citation.] Where the evidence presented by defendant does not support judgment in his favor, the motion must be denied without looking at the opposing evidence, if any, submitted by plaintiff. [Citation.] The evidence of the moving party is strictly construed and that of the opposing party liberally construed. [Citation.] Where there is no material issue of fact to be tried and the sole question before the court is one of law, it is the duty of the trial court on a motion for summary judgment to hear and determine the issue of law. [Citation.]

"In reviewing a grant of summary judgment, an appellate court must make its own independent determination of the construction and effect of the papers submitted. Review of the trial court's determination involves pure matters of law and requires reassessment of the legal significance of the documents. The reviewing court applies the same three-step analysis as that of the trial court: (1) identification of issues framed by the pleadings; (2) determination of whether the moving party has established facts which negate the opponent's claim and justify a judgment in movant's favor; and (3) determination of whether the opponent demonstrates the existence of a triable, material factual issue. [Citations.]" (Varni Bros. Corp. v. Wine World, Inc. (1995) 35 Cal.App.4th 880, 886-886, 41 Cal.Rptr.2d 740.)

B. Is sudden onset of mental illness a defense to negligent operation of a motor vehicle?

In order to affirm the trial court's granting of the summary judgment motion at issue, we must first identify the issues framed by the pleadings. In this case, the appellants filed a simple form complaint for negligent operation of a motor vehicle.

Secondly, we must determine whether the respondent's showing in the trial court established facts which negate the appellants' claim and justify a judgment in respondent's favor. At the trial court, respondent contended that due to respondent's sudden, unanticipated mental disorder, respondent was not negligent as a matter of law. Whether the sudden onset of mental illness is a defense to a negligence action in California is pivotal to the correctness of the trial court's ruling.

"California has approved the rule of Cohen v. Petty (D.C.Cir.1933) 65 F.2d 820, that as between an innocent passenger and an innocent fainting driver, the former must suffer." (Ford v. Carew [45 Cal.App.4th 1319] & English (1948) 89 Cal.App.2d 199, 203, 200 P.2d 828, citing Waters v. Pacific Coast Dairy, Inc. (1942) 55 Cal.App.2d 789, 131 P.2d 588.)

Under a line of appellate authorities beginning with Waters in 1942, these cases generally hold that a driver, suddenly stricken by an illness rendering the driver unconscious, is not chargeable with negligence. (Waters v. Pacific Coast Dairy, Inc., supra, 55 Cal.App.2d at pp. 791-793, 131 P.2d 588 [driver rendered unconscious from sharp pain in left arm]; Ford v. Carew & English, supra, 89 Cal.App.2d at pp. 203-204, 200 P.2d 828 [fainting spell from strained heart muscle]; Zabunoff v. Walker (1961) 192 Cal.App.2d 8, 11, 13 Cal.Rptr. 463 [jurors could have concluded that a sudden sneeze was an intervening cause similar to a fainting spell]; Tannyhill v. Pacific Motor Trans. Co. (1964) 227 Cal.App.2d 512, 520, 38 Cal.Rptr. 774 [heart attack]; Hammontree v. Jenner (1971) 20 Cal.App.3d 528, 530-531, 97 Cal.Rptr. 739 [loss of consciousness due to unexpected epileptic seizure].)

Although the driver in the Cohen case suffered a sudden illness rendering him unconscious, the court generally stated the rule regarding the effect of a sudden illness as follows:

"It is undoubtedly the law that one who is suddenly stricken by an illness, which he had no reason to anticipate, while driving an automobile, which renders it impossible for him to control the car, is not chargeable with negligence." (Cohen v. Petty, supra, 65 F.2d at p. 821.)

[53 Cal.Rptr.2d 639] Respondent admits that "no prior California decisions have decided whether the [Cohen] rule also applies when defendant suffers a sudden and unanticipated mental, as opposed to physical illness." Respondent urges this court to extend the Cohen rule to any sudden "illness," without distinction between physical and mental illness. She argues that the public policy rationale would remain the same; "i.e., as between an innocent injured party and an innocent ill driver, the innocent injured party must suffer." The basis behind the Cohen rule is related to the general concept of " 'unavoidable accident.' " (6 Witkin, Summary of Cal.Law (9th ed.) Torts, § 759, p. 98.) In California, our Supreme Court has addressed this concept in Butigan v. Yellow Cab Co. (1958) 49 Cal.2d 652, 320 P.2d 500:

"In reality, the so-called defense of unavoidable accident has no legitimate place in our pleading. It appears to be an obsolete remnant from a time when damages for injuries to person or property directly caused by a voluntary act of the defendant could be recovered in an action of trespass and when strict liability would be imposed unless the defendant proved that the injury was caused through 'inevitable accident.' Although exactly what was covered by this expression is not clear, it apparently included cases where the defendant [45 Cal.App.4th 1320] was utterly without fault. 'Unavoidable accident' was then an affirmative defense to be pleaded and proved by the defendant.

"..."

"... 'unavoidable or inevitable accident' ... 'simply denote[s] an accident that occurred without having been proximately caused by negligence' ...." (49 Cal.2d at p. 658, 659, 320 P.2d 500.)

In effect, the concept of unavoidable accident is predicated upon absence of fault.

After consideration of state and national case law, the rationale behind respondent's argument and the policy consequences, we decline to extend the application of the Cohen rule to a sudden and unanticipated mental illness or disorder. (Cohen v. Petty, supra, 65 F.2d 820.)

"Mentally disabled persons usually have been classed with infants, and held liable for their torts." (Prosser & Keeton, The Law of Torts (5th ed. 1984) § 135, p. 1072; see 5 Witkin, Summary of Cal.Law (9th ed. 1990) Torts, § 26, p. 86.) California is one of the few states to have codified the common law rule by statute. (Mullen v. Bruce (1959) 168 Cal.App.2d 494, 496, 335 P.2d 945 [Civ.Code, § 41]; see Splane, Tort Liability of the Mentally Ill in Negligence Actions, 93 Yale L.J. 153, 155-156 (1983) [footnote 17 lists California, Montana, North Dakota, Oklahoma and South Dakota as states which have incorporated the common law into their statutes].)

Civil Code section 41, as originally enacted in 1872, provided:

"A minor, or person of unsound mind, of whatever degree, is civilly liable for a wrong done by him, but is not liable in exemplary damages unless at the time of the act he was capable of knowing that it was wrongful."

Respondent concedes that Civil Code section 41 was revised, effective January 1, 1994, making no substantive changes except minors were deleted from its scope. Section 41 of the Civil Code now provides:

"A person of unsound mind, of whatever degree, is civilly liable for a wrong done by the person, but is not liable in exemplary damages unless at the time of the act the person was capable of knowing that the act was wrongful." (Added by Stats.1992, c. 163, § 3, pp. 754-755, operative Jan. 1, 1994.)^[1]

Prosser and Keeton have commented with respect to criticism of the common law rule (codified in Civ.Code, § 41) that:

"So far as negligence [45 Cal.App.4th 1321] is concerned, the common law cases have usually said that an insane person is liable for failure to conform to the standard of conduct of the reasonable person, with the civil law in [53 Cal.Rptr.2d 640] Louisiana going the other way. But there has been judicial as well as scholarly criticism of the common law rule, and Wisconsin has taken the view, supported by a Canadian decision, that where insanity occurs suddenly and without warning, it is to be treated like a heart attack, so that the insane defendant is not held to the reasonable man standard under those circumstances....

"In the light of these cases, the permanent direction of the law may be in doubt even now." (Prosser & Keeton, supra, § 135, pp. 1074-1075, fns. 33-35 & 38 omitted.)"

However, if the Legislature changes a law in a particular respect and fails to change it in other respects when the subject is generally before it, this is indicative of an intent to leave the law as it stands in the aspects not amended. (Butigan v. Yellow Cab Co, supra, 49 Cal.2d at p. 666, 320 P.2d 500.)

Therefore, despite the criticism of the common law rule by scholars and the judicial decisions of a few other jurisdictions, Civil Code section 41 is evidence of a recent Legislative intent to leave the law as it stands in California.

Respondent argues that Civil Code section 41 "speaks in terms of intentional acts, which would be subject to exemplary damages." It is true that section 41 limits the liability of persons of unsound mind for exemplary damages, but it also provides that a "person of unsound mind, of whatever degree, is civilly liable for a wrong done by the person." (Emphasis added.) By its terms, Civil Code section 41 is not limited to intentional torts, but rather applies to all "civil wrongs," including negligence. (See Brinck v. Bradbury (1918) 179 Cal. 376, 379, 176 P. 690 [incompetent liable for negligent operation of elevator owned by her and operated for her benefit]).

Civil Code section 41 is in accord with the Restatement Second of Torts, published in 1965, which provides in section 283 B:

"Unless the actor is a child, his insanity or other mental deficiency does not relieve the actor from liability for conduct which does not conform to the standard of a reasonable man under like circumstances." (Rest.2d Torts, § 283 B, p. 16.)

The comment explaining section 283 B, found at page 17, provides:

"a. If the actor is a child, his mental deficiency is taken into account. See § 283A.

[45 Cal.App.4th 1322] "b. The rule that a mentally deficient adult is liable for his torts is an old one, dating back at least to 1616, at a time when the action for trespass rested upon the older basis of strict liability, without regard to any fault of the individual. Apart from mere historical survival, its persistence in modern law has been explained on a number of different grounds. These are as follows:

"1. The difficulty of drawing any satisfactory line between mental deficiency and those variations of temperament, intellect, and emotional balance which cannot, as a practical matter, be taken into account in imposing liability for damage done.

"2. The unsatisfactory character of the evidence of mental deficiency in many cases, together with the ease with which it can be feigned, the difficulties which the triers of fact must encounter in determining its existence, nature, degree, and effect; and some fear of introducing into the law of torts the confusion which has surrounded such a defense in the criminal law. Although this factor may be of decreasing importance with the continued development of medical and psychiatric science, it remains at the present time a major obstacle to any allowance for mental deficiency.

"3. The feeling that if mental defectives are to live in the world they should pay for the damage they do, and that it is better that their wealth, if any, should be used to compensate innocent victims than that it should remain in their hands.

"4. The belief that their liability will mean that those who have charge of them or their estates will be stimulated to look after them, keep them in order, and see that they do not do harm.

"c. Insane persons are commonly held liable for their intentional torts. While there are very few cases, the same rule has [53 Cal.Rptr.2d 641] been applied to their negligence. As to mental deficiency falling short of insanity, as in the case of stupidity, lack of intelligence, excitability, or proneness to accident, no allowance is made, and the actor is held to the standard of conduct of a reasonable man who is not mentally deficient, even though it is in fact beyond his capacity to conform to it."

Section 283 C, page 18, of the Restatement Second of Torts concerns physical disabilities and provides:

"If the actor is ill or otherwise physically disabled, the standard of conduct to which he must conform to avoid being negligent is that of a reasonable man under like disability."

Under comment (b), page 18, explaining section 283 C, the Restatement discusses the effect of a sudden onset of a "transitory [45 Cal.App.4th 1323] delirium" as follows:

"The same allowance [the reasonable man is identical with the actor] is made for physical, as distinguished from mental, illness. Thus a heart attack, or a temporary dizziness due to fever or nausea, as well as a transitory delirium, are regarded merely as circumstances to be taken into account in determining what the reasonable man would do. The explanation for the distinction between such physical illness and the mental illness dealt with in § 283B probably lies in the greater public familiarity with the former, and the comparative ease and certainty with which it can be proved."

Although the respondent's sudden onset of mental illness might arguably be classified as a "transitory delirium" under the Restatement, such a classification is unlikely given that the "transitory delirium" is discussed in the comment relating to physical, as opposed to mental, disabilities. (Since the Restatement makes a distinction between physical and mental disabilities, it is more likely that the phrase "transitory delirium" used in the Restatement relates back to the previous phrase regarding the effects of fever.) In any event, in California, even a defendant who was suffering from alcoholism and who was in delirium tremens was found to be a "person of unsound mind" within the purview of Civil Code section 41. (Mullen v. Bruce, supra, 168 Cal.App.2d at p. 496, 335 P.2d 945.)

We conclude that an evidentiary showing that respondent suffered a sudden and unanticipated mental illness which rendered it impossible for her to control her vehicle at the time of the alleged tort does not, as a matter of law, preclude her liability for negligence. This is based on a policy rationale. Clearly the insane or mentally disabled individual is not considered at fault in the traditional sense. However, because such individuals do create harm, the general rationale is that they should be held financially responsible to those they harm. Therefore, mental disability is not a defense. Liability is therefore predicated on an objective reasonable person standard. Unlike the rationale behind suspension of a liability for sudden physical illness which is based on fault, the fault concept is not analogous to a sudden mental disability. Thus, we do not perceive any logical rationale for barring mental illness as a defense to negligence but allowing sudden mental illness as a complete defense. We conclude sudden mental illness may not be imposed as a defense to harmful conduct and that the harm caused by such individual's behavior shall be judged on the objective reasonable person standard in the context of a negligence action as expressed in Civil Code section 41.

Applying tort principles in the criminal context, this conclusion is supported by criminal decisions in this state which have touched on the issue. (See, e.g., People v. Castillo (1987) 193 Cal.App.3d 119, 124-125, 238 Cal.Rptr. 207 [mistake of fact defense cannot be predicated on delusions [45 Cal.App.4th 1324] which are a product of mental illness or mental retardation]; People v. Gutierrez (1986) 180 Cal.App.3d 1076, 1083, 225 Cal.Rptr. 885 ["[w]hile involuntary intoxication is a circumstance which may be considered in determining reasonableness, mental illness is not"]; People v. Mathews (1994) 25 Cal.App.4th 89, 30 Cal.Rptr.2d 330 [acknowledging that physical disability can be considered in determining [53 Cal.Rptr.2d 642] the reasonableness of a person's conduct].)

Our conclusion that respondent's sudden onset of mental illness is not a defense to appellants' negligence action is also supported by the weight of authority in other jurisdictions. For example, in Turner v. Caldwell (1980) 36 Conn.Sup. 350, 421 A.2d 876, defendant, in a special defense, alleged (with language remarkably similar to the instant case) that she was suddenly stricken by mental illness which she had no reason to anticipate, thereby rendering it impossible for her to control her vehicle. The court granted the motion to strike this special defense, noting that "[t]he weight of authority is that insane persons are liable for the negligent acts." (Ibid.)^[2]

[45 Cal.App.4th 1325] Because we have concluded that the sudden and unanticipated onset of mental illness is not a defense to an action based on the negligent operation of a motor vehicle, the summary judgment must be reversed. In view of this conclusion, it is not necessary to consider appellants' remaining contentions on appeal.

The summary judgment is reversed. Costs to appellant.

MARTIN and THAXTER, JJ., concur.

[1] Former Civil Code section 41 was repealed by Statutes 1993, chapter 219, section 2, page 1146. The current section 41 continues former Civil Code section 41 without substantial change, insofar as former section 41 related to a person of unsound mind. (22 Cal.Law Revision Com.Rep. (July 1992) p. 747.) With respect to minors, the substance of former Civil Code section 41 is continued in Family Code section 6600. (23 Cal.Law Revision Com.Rep. (Nov. 1993) p. 580.)

[2] See also, Goff v. Taylor (Ky.App.1986) 708 S.W.2d 113 (defendant suffering from brain disease or disorder not excused from wrongful death liability; commentators questioning long-standing common-law rule do not attempt to reach fairness to victim); Schumann v. Crofoot (1979) 43 Or.App. 53, 602 P.2d 298 (mental illness not a defense to negligent conduct); Greenberg v. McCabe (E.D.Penn.1978) 453 F.Supp. 765, 768, aff. (3d Cir.1979) 594 F.2d 854, cert. den. sub nom. McCabe v. Greenberg (1979) 444 U.S. 840, 100 S.Ct. 78, 79, 62 L.Ed.2d 51 ("in determining the reasonableness of a person's conduct, his or her illness or physical disability can be considered in defining the standard which he or she must meet, but ... a mental deficiency cannot be taken into account"); Jolley v. Powell (Fla.App.1974) 299 So.2d 647, 649 (mentally deficient person subject to liability for negligent conduct); Kuhn v. Zabotsky (1967) 9 Ohio St.2d 129, 224 N.E.2d 137 (defendant alleged he had been suddenly stricken by a mental illness which he had no reason to anticipate and which rendered it impossible for him to control the car which he was driving; situation different from case where physical disability, caused by unconsciousness, made it impossible to control car; "where one party is mentally sound, blameless and injured and the other is at fault and mentally ill or insane, the loss which must be borne by someone should be suffered by the person at fault"); Delahanty v. Hinckley (D.D.C.1992) 799 F.Supp. 184, 186-187 (court refused to reject historical rule of jurisdiction, requiring that an insane actor be held liable for compensation to the victims of his torts, reasoning that modern justifications for such a rule include: (1) using objective standard to determine primary negligence helps minimize the burden on the community from deinstitutionalization, (2) helps foster community acceptance of the mentally ill, and (3) encourages the mentally ill to become self-sufficient, responsible members of the community); cf. Anicet v. Gant (Fla.App.1991) 580 So.2d 273 (distinguishing Mullen v. Bruce, supra, 168 Cal.App.2d at p. 494, 335 P.2d 945 as involving "an interpretation of a California Code provision, which has no Florida equivalent, which specifically states that 'a ... person of unsound mind ... is civilly liable for a wrong done by him...."; holding that violently insane resident of mental institution not liable to mental institution attendant for violent acts over which he had no control); see also Mujica v. Turner (Fla.App.1991) 582 So.2d 24, 25, where the Anicet court acknowledged that "[a]lthough we agree that ordinarily a mental incompetent is responsible for his own torts [citations], we have recently held that this rule is inapplicable when the incompetent has been institutionalized, as here, because of her mental incompetency and injures one of her caretakers while in such institution."

[21 Md.App. 466] [319 A.2d 554] Robert R. Michael, Gaithersburg, with whom were Alan D. Massengill, and Massengill & Michael, Gaithersburg, on the brief, for appellants.

William D. Foote, Sr., with whom was Francis J. Ford, Rockville, on the brief, for appellees.

Argued before MOYLAN, POWERS and GILBERT, JJ.

GILBERT, Judge.

In July, 1972, Kathleen Theresa Reilly, appellee, then a student at Prince George's Community College, lived with her parents in an area not accessible by public transportation. Her father, John E. Reilly, the other appellee, purchased in September of 1971, a 1965 Comet for his daughter's use, primarily in going back and forth from school. Kathleen enjoyed the almost exclusive use of the vehicle.

On the night of July 7, 1972, Kathleen who had obtained a summer job as a salesperson, had left her place of work and was en route home. She was traveling on Riggs Road and when nearing University Boulevard was descending a hill. Kathleen observed that a traffic signal situate at the intersection of Riggs Avenue and University Boulevard was 'red' for her. She applied the foot brake and to her dismay the pedal 'went right to the floor.' She was, in short, without foot brakes. Kathleen maneuvered her car from the center lane of the three lane northbound highway into the right hand or right turn lane. The vehicle continued down [21 Md.App. 467] the grade. At the bottom of the hill Kathleen attempted to complete a right turn onto University Boulevard, but apparently the momentum of the car prevented a successful turn. Her car jumped the median strip and collided with a 1965 Buick that was westbound on University Boulevard. The force of the impact rolled the Buick onto its right side. Both occupants of the Buick sustained personal injury.

At a trial before Judge Robert B. Mathias and a jury in the Circuit Court for Prince George's County, the judge denied motions for directed verdict made in behalf of the respective parties and submitted the [319 A.2d 555] controversy to the jury. The jury rendered verdicts in favor of the defendants-appellees.

The appellants, Charles L. Miller and Anthony L. Rowek, vigorously attack, in this Court, Judge Mathias's denial of their motions for a directed verdict against Kathleen because she (1) failed to demonstrate, at trial, that she had tested the foot brake prior to the accident and, (2) failed to use the 'emergency brake' when she had an opportunity to do so. Appellants also allege (3) reversible error because the judge instructed the jury on the 'sudden emergency doctrine', notwithstanding Kathleen's failure to use the 'emergency brake', and (4) that the judge erred in instructing the jury on the 'sudden emergency doctrine' because the appellees did not demonstrate their 'vehicle was equipped with a separate independent braking system.'

I.

To bolster their argument that Judge Mathias erred in not granting a motion for a directed verdict against Kathleen 'due to her failure to demonstrate prior testing by the simple foot pressure test', the appellants cite us to Sothoron v. West, 180 Md. 539, 26 A.2d 16 (1942) and its sequelae. In Sothoron Judge Marbury for the Court said, 180 Md. at 543-44, 26 A.2d at 17:

'The appellee offered as an excuse for the accident the fact that her brakes did not hold. She offered no evidence of any inspection. She testified to a drive which carried her through a number of city blocks and intersections. It is almost [21 Md.App. 468] inconceivable that during the course of such a drive she did not at some time or other have occasion to use the foot brake. Her testimony, however, negatives this. The question before us, therefore, is whether the fact that her brakes suddenly failed her excuses her from the charge of negligence, when she was driven a number of city blocks without making the slightest test of these brakes, until their first use in the descent of a steep hill, where she has to rely on them for her safety and for the safety of other occupants of the highway.

We do not think the appellee is excused. This is not the case of a latent defect which could not have been discovered. A person driving a strange car for the first time owes a duty to the public to see that there are no obvious defects in its mechanism which are apt to cause injury to others. Defective brakes are obvious, because they can be detected by the simple pressure of a foot. The test is so simple that anyone can make it. If such a test shows the brakes in working order, and then they suddenly fail, the driver may not be liable for negligence in driving with them. If no test is made, if the brakes are not even tried, the driver cannot rely upon a presumption that the machine is safe. He will not then be excused from liability for the destruction he may cause upon the public highway, because he did not know his brakes were bad.'

Sothoron, however, is readily distinguishable as there is in Sothoron no testimony whatsoever of the driver's use of the foot brake at any time prior to its failure immediately preceding the collision. The record in the instant case, however, reveals that Kathleen, the usual operator of the Comet, testified on direct examination:

'Q. . . . Prior to the time when your brakes went out . . . on Riggs Road, . . . as you were approaching the intersection of University Boulevard . . . did you have any trouble with your brakes?

[21 Md.App. 469] A. No, sir.

Q. Had you ever noticed any difficulty in braking or slowing your vehicle to a stop?

A. No, sir.'

[319 A.2d 556] On cross-examination she was asked:

'Q. . . . (Y)ou testified that you had had no prior problems with the brake, is that what I am to understand?

A. Yes, sir.'

Then on redirect Kathleen deposed:

'Q. . . . (You were asked) about school and summer employment. . . . Where indeed were you coming from when this accident happened?

A. From my summer employment.

Q. . . . What kind of a job did you have over there?

A. Sales person.

Q. What were your hours?

A. That night?

Q. Yes.

A. That night it was from 12:30 to 9:30.

Q. So, you were on your way home from work is that right?

A. Yes, sir.

Q. And, did you usually drive to and from work in the Comet?

A. Yes, sir.

Q. And, now that day going to the (place of employment) and then again returning and prior to the time that you had the brake failure had you had any trouble with the car or the brakes?

A. No, sir.'

[21 Md.App. 470] Such testimony is in our view sufficient to submit the question of Kathleen's use of the brakes on the date of the accident to the jury for its determination. We point to the fact that on the day of the accident Kathleen drove the Comet to work. She worked that day for nine hours. It is obvious if she drove to work and then actually worked in a department store she of necessity would have had to apply the brakes of the car in order to halt it when she arrived at her place of employment. Furthermore, there was testimony that new brakes had been installed on the Comet at the time of purchase, and the vehicle had only been driven 6,000 miles following the installation of the brakes in the 'early fall of 1971.' John Reilly informed the jury that he periodically drove the Comet in order to inspect it, and that in June, 1972, he took the vehicle to a service station for an oil change. While there he noticed that the brakes 'were down a little', and in order to correct that he 'had the brakes adjusted to bring them back up to where they should be.' Such testimony on the part of the defendants-appellees is similar to that present in the case of Garfinkle v. Birnios, 232 Md. 402, 194 A.2d 91 (1963), where there was evidence that the brakes had been inspected several weeks before the accident. The Court of Appeals in Garfinkle indicated that an instruction to the jury that when a defendant has made proper inspection of the brakes of his vehicle, and the jury so finds, then the law is that if the brakes were 'in working order and then they suddenly fail, the driver may not be liable for negligence in driving with them.' To the same effect see Larsen v. Romeo, 254 Md. 220, 255 A.2d 387 (1969).

Judge Carter (specially assigned) wrote for the Court of Appeals in Wood v. Johnson, 242 Md. 446, 219 A.2d 231 (1966), at 242 Md. 454, 219 A.2d at 235:

'. . . (T)hat the showing of a brake failure makes a prima facie case of a violation of § 291 of Article 66 1/2^[1] and, if such violation is further shown to be the proximate cause of the accident, the then [21 Md.App. 471] permissible inference of negligence [319 A.2d 557] must be controverted by a showing of adequate inspection and a sudden unexpected failure.'

Sudden brake failure is a fact of motoring life; it is unfortunately a part of our mechanized society. Because machines are known to break without prior warning, automobiles should be periodically inspected by the owners. Indeed, Wood v. Johnson, supra, flatly states that a defendant-owner is under a greater responsibility to inspect and test a vehicle than one who is a mere operator. See also Kaplan v. Stein, 198 Md. 414, 84 A.2d 81 (1951). The routine inspection is not a panacea, however, for all dangerous conditions. The latent defect may still go undetected, but a routine examination does minimize the chance that that which should be readily discovered and corrected will not go undiscovered and uncorrected.

We believe that the evidence in this case was sufficient to satisfy the requirements of both Sothoron and Wood. Therefore, we perceive no error by Judge Mathias in refusing to direct a verdict for the appellants.

II. and III.

The appellants' second and third arguments, though couched in slightly different language, are so interrelated that we shall treat them as one. The appellants argue that the trial judge erred in refusing to grant a directed verdict in their favor because of Kathleen's failure to use the 'emergency brake' when she had an opportunity to do so prior to the collision, and because of such an opportunity, the trial court should not have instructed the jury on the 'sudden emergency doctrine'. In this connection the appellants contend that Kathleen had ample time between the discovery of the foot brake failure and actual collision to apply the 'emergency brake' (we observe that Md.Ann.Code art. 66 1/2, § 12-301 does not use that nomenclature but rather refers to it as the 'parking brake') so as to bring her vehicle to a stop. The answer to the appellants' contention is found in Warnke v. Essex, 217 Md. 183, 141 A.2d 728 (1958), which was expounded upon in Armstrong v. Johnson Motor [21 Md.App. 472] Lines, 12 Md.App. 492, 280 A.2d 24 (1971), and reiterated in Effler v. Webber, 18 Md.App. 162, 305 A.2d 485 (1973). The Warnke Court held 217 Md. at 187, 141 A.2d at 729:

'Whether the operator of an automobile was confronted with an emergency, and whether he acted negligently under the circumstances, are generally questions for the jury. 10B Blashfield Automobile Law and Practice (1957), § 6648.' (Emphasis supplied).

This Court in Armstrong said, 12 Md.App. at 501, 280 A.2d at 29:

'Proof by a party that he acted as he did because he was confronted with an emergency, to which he did not contribute, and which he could not have forseen by the exercise of reasonable care, becomes one of the circumstances surrounding the entire occurrence, and focuses the inquiry on the question of whether he exercised due care under those circumstances. He is to be judged, not by hindsight, but in the light of the alternatives available to him in that emergency, and the time available to him to recognize and evaluate those alternatives, and to make the choice of a reasonable, prudent person. Whether he was negligent in the action he took in the face of the emergency, or whether he used reasonable care under the circumstances is ordinarily a jury question. Lehmann v. Johnson, 218 Md. 343, 146 A.2d 886 ((1958)).'

In Effler, we said that whether a driver, confronted with a sudden emergency, acted negligently under the circumstances is a question of fact for the jury to determine. It may be, as appellants suggest, that Kathleen could have applied the parking brake and brought her vehicle to a halt. She might have attempted to 'motor brake' the vehicle by downshifting the gears, or she [319 A.2d 558] possibly could have turned the vehicle into a curb in an effort to stop it. Perhaps she could have avoided the collision by sounding the horn or [21 Md.App. 473] blinking the headlights. It is, of course, comparatively easy to 'second guess' or 'Monday Morning Quarterback' a motorist who is confronted by a sudden emergency, but as Judge Powers said in Armstrong, supra, the driver is not to be judged by hindsight, but whether he exercised due care under the circumstances with which he was confronted at the time.

Professor Prosser's Handbook of the Law of Torts § 33 (3rd Ed. 1964) states at 171-172:

'. . . (I)t seems clear that the basis of the special rule (emergency doctrine) is merely that the actor is left no time for thought, or is reasonably so disturbed or excited, that he cannot weigh alternative courses of action, and must make a speedy decision, based very largely upon impulse or guess. Under such conditions, the actor cannot reasonably be held to the same conduct as one who has had full opportunity to reflect, even though it later appears that he made the wrong decision, which no reasonable man could possibly have made after due deliberation. His choice 'may be mistaken and yet prudent. '' (Footnotes omitted).

See also Effler v. Weber, supra.

Appellants would have us hold, in essence, that because a vehicle is equipped with a parking brake, the failure of a motorist to use that brake when his foot brakes suddenly fail, is negligence as a matter of law. We decline to do so. We think that Judge Mathias properly denied the appellants' motion for a directed verdict, correctly instructed the jury on the 'doctrine of sudden emergency' and rightfully submitted the matter to the jury for its determination of whether Kathleen used reasonable care under the concomitant circumstances.

IV.

Appellants advance the theory 'that the jury should not have been instructed that the sudden emergency doctrine was applicable absent proof by the appellee that her vehicle [21 Md.App. 474] contained the statutorily required emergency brake equipment.' In support of that theory appellants rely upon Fink v. East Miss. Elec. Power Assn., 234 Miss. 221, 105 So.2d 548 (1958), and Ritchie v. Davidson, 183 Neb. 94, 158 N.W.2d 275 (1968). In Fink the court held that a driver who was proceeding on a highway behind a truck that suddenly slowed was guilty of negligence as a matter of law when he, realizing that his foot brakes would not stop his vehicle in sufficient time to avoid a collision with the rear of the truck and knowing that he was on a well traveled road, swerved into the path of oncoming traffic and collided head-on with another vehicle. The court noted that the errant driver had three alternatives open to him at the time his brakes failed. They were: (1) turning his vehicle to the right (2) striking the truck or (3) turning to the left into the oncoming traffic. The driver chose the latter 'without first ascertaining whether a vehicle was occupying the . . . lane.' The Mississippi court concluded that the evidence demonstrated the driver's turning into the oncoming traffic was the proximate cause of the accident. The Court was careful to point out, however, that had the driver turned to the right he could have gone onto the 'shoulder of the highway' which 'was wide enough to accommodate an automobile.' Under Mississippi law it is apparently incumbent upon one claiming refuge behind the sudden emergency rule to show affirmatively that his vehicle was equipped with two separate means to bring the automobile to a stop; that he did not know and by the exercise of reasonable care could not have known that the vehicle's braking system was defective; that when the incident arose he made reasonable efforts to use both braking systems and that both [319 A.2d 559] failed, or that upon the sudden failure of the foot brakes he was unable, in the exercise of reasonable effort to stop the car; that he utilized as much care as a reasonably prudent person would use if confronted by similar circumstances.

The case is readily distinguishable from the holdings of the Court of Appeals of this State. No Maryland case that we have been able to find places an affirmative duty upon a defendant to prove that his automobile was equipped with [21 Md.App. 475] two separate means to stop his car and that both systems failed. The Legislature has enacted a statute that requires motor vehicles, except motorcycles, to be equipped with foot brakes and parking brakes, Md.Ann.Code art. 66 1/2, § 12-301. Nothing therein, however, is indicative of a legislative intent that in order to invoke the sudden emergency rule one must show that both sets of brakes failed.

The most distinguishing factor, in our view, between the Maryland decisions and Fink is that the Mississippi court has usurped the jury function of fact finder, and decided as a matter of law that the failure to choose the most prudent of the three alternatives ways out of the situation that confronted the driver established negligence.

In Ritchie, the Supreme Court of Nebraska held that a motorist traveling fifteen to twenty miles per hour, whose foot brakes suddenly failed, was guilty of inexcusable negligence in failing to use the 'emergency brake' to stop the car. Ritchie is also factually inapposite to the case at bar. Moreover, the Nebraska court was apparently injecting itself into the fact finding process, or at least determining that the distance the striking vehicle was from the struck vehicle when the brakes of the striking vehicle failed, coupled with the rate of speed of the striking vehicle, was as a matter of law negligence.

We are unpersuaded by Fink v. East Miss. Elec. Power Assn., supra, and Ritchie v. Davison, supra. As we read Mintzer v. Miller, 249 Md. 506, 240 A.2d 262 (1968), Wood v. Johnson, supra, Langville v. Glen Burnie Lines, 233 Md. 181, 195 A.2d 717 (1963), Garfinkle v. Birnios, supra, Lehmann v. Johnson, 218 Md. 343, 146 A.2d 886 (1958), Kaplan v. Stein, supra, Sothoron v. West, supra, and Currie v. United States, 201 F.Supp. 414 (D.Md. 1962), aff'd, 312 F.2d 1 (4th Cir. 1963), it is manifest that the Maryland decisions are in accord with a number of her sister states which hold that sudden brake failure is 'prima facie evidence of negligence, or is evidence from which an inference of negligence can be drawn. . . .' Annot., 40 A.L.R.3d 9, 40 (1971). Such prima facie evidence or inference 'must be controverted by a [21 Md.App. 476] showing of adequate inspection and sudden unexpected failure.' Wood v. Johnson, supra. Even those states that hold that a violation of a statute or regulation pertaining to brakes is negligence per se, nevertheless, merely shift to the defendant 'the burden of going ahead with the evidence to establish excuse or absence of negligence.'^[2] It would appear that whether one styles the rule prima facie, but rebuttable, or negligence per se, but rebuttable, is of no import. In either case proof of the happening of an accident, coupled with the defendant's explanation of sudden brake failure, shifts to the defendant the burden of going forward with the evidence to establish, if he can, the existence of a sudden emergency to which he did not contribute and could not have foreseen.^[3]

[319 A.2d 560] We decline to hold that failure to use the parking brake, or as it is popularly known, the 'emergency brake', in order to avoid a collision when the foot brakes suddenly fail is negligence as a matter of law. Rather, we think that evidence of a failure to use the parking or 'emergency brake' is an element for the jury to consider in its deliberations over whether a defendant has exercised due care under the circumstances.

Judgment affirmed. Costs to be paid by appellants.

[1] Now recodified as Md.Ann.Code art. 66 1/2, § 12-301 and § 12-304.

[2] It is difficult to fathom how an act can be negligent per se and at the same time be rebuttable. For cases so holding, however, see Annot., 40 A.L.R.3d, supra at 43-45.

[3] Some jurisdictions, California, Colorado, Indiana, Michigan and Vermont, hold that violation of a state statute or regulation governing brakes 'creates a presumption of negligence which is rebuttable and may be overcome by evidence of justification or excuse.' Annot., 40 A.L.R.3d, supra at 41-43.