Nielsen ex rel. C.N. v. Wade ex rel. B.B.

Justice DURHAM, oplmon of the Court: INTRODUCTION 1 In this appeal we must decide whether there is a minimum age below which a child is conclusively deemed incapable of negligence under Utah's common law, and if so, what that minimum age is. We hold that children under the age of five, as a matter of law, may not be held liable for negligence. BACKGROUND 112 Ms. Nielsen was babysitting a boy who was four years and nine months old. The boy threw a toy rubber dolphin at her, striking her in the eye. Ms. Nielsen had previously received a cornea transplant, and, tragically, the impact caused her to lose all vision in that eye,. T3 Ms. Nielsen sued the boy's parents for negligent supervision. She also sued the four-year-old boy for negligence. The defendants moved for summary judgment, and Ms. Nielsen conceded that she had no evidence that the boy's - parents had been negligent. She argued, however, that a dispute of material fact precluded summary judgment on the negligence claim against the boy. Ms. Nielsen further asserted that a four-year-old boy could be liable for negligence under Utah law. . The district court agreed, ruling that it could not find as a matter of law that the boy was incapable of negligence. The court therefore granted summary judgment on the negligent supervision claim against the parents and denied summary judgment on the negligence claim against the child. "[ 4 We granted a petition for interlocutory review of the portion of the district court's order denying summary judgment on the claim against the child. We review de novo [926] the district court's legal determination that a four year old may be held liable for negli-genee. See Daniels v. Gamma W. Brachytherapy, LLC, 2009 UT 66, ¶ 46, 221 P.3d 256 (1nterpretat10ns of the common law rev1ewed for correctness) f ANALYSIS 15 State courts have adopted a variety of approaches when determining whether young children may be held liable for negligence. Some states reject fixed age limits, resolving the issue of 'a child's capacity to be negligent as a matter of law only where "reasonable minds could not differ on the matter," Lester v. Sayles, 850 S.W.2d 858, 866 (Mo.1993). But "the overwhelmng majority of jurisdictions support the idea of some minimum cutoff age." REestatemENt (Tmap) or Torts: Puys, & Emot Harm § 10 reporters' note, emt. d (Am, Law Inst, 2010). Courts in these states have adopted different cutoff ages for liability, variously holding that children under seven, six, five, or four may not be negligent as a matter of law. Id. f T6 In order to determine whether the four-year-old defendant in this case may be held liable for negligently throwing a 'toy at Ms. Nigisen, we assess which of these approaches to the liability of young children most clogely matches this court's precedents. Ms. Nielsen contends that Utah should not recognize a fixed age cutoff for negligence liability. - The four-year-old defendant, on the other hand, asserts that our precedents hold that children under the age of seven are conclusively presumed to be incapable of negligence. Alternatively, the defendant argues that we have recognized that children under the age of five may not be held liable for negligence. T7 We reject the defendant's contention that this court has held that children under seven may not be negligent. 'We agree, however, with the defendant's alternative argument that children under the age of five may not be liable for negligence,. We therefore reverse the district court's order denying summary judgment on the negligence claim against the four-year-old defendant. I. THE ILLINOIS RULE 8 The defendant first contends that Utah has adopted -the Illinois rule regarding the liability of young children for negligence. Under this rule, children under seven are deemed incapable of negligence; for children between seven and fourteen, there is a rebut-table presumption against a child's capacity for negligence; and for adolescents fourteen years old and above there is a rebuttable presumption of capacity for negligence. STATEMENT or Torts: Phys & Emor. Harm $ 10 emt. b (Ax. Law Insz. 2010). , The Illinois rule is followed in about a dozen states. See id. § 10 reporters' note, emt. b. T9 This court first referenced this rule in Nelson v. Arrowhead Freight Lines, 99 Utah 129, 104 P.2d 225, 228. (1940). But although the Nelson court stated that "Tolrdinarily a child under seven years of age is conclusively presumed not guilty of contributory negligence," this pronouncement was pure dictum.1 Id. The minor accused of contributory negligence in that case was sixteen-well above the seven-year cutoff age. Id. at 227. Moreover, the stxteen-year-old plaintiff's capacity to be negligent was not at issue. Instead, the plaintiff argued on appeal that she was entitled to an instruction informing the jury that she should be held to the standard of care of persons of similar age, capacity, and experience. Id, Therefore, any rule regarding the age when a child may be held liable for negligence, or any rule regarding a presumption of either incapacity or capacity for negligence, was not relevant to the outcome of the case. [927] 10 We specifically held that the Nelson court's articulation of the Illinois rule was dictum and declined to follow it. In Mann v. Fairbourn, this court had to decide whether a five-and-a-half-year-old boy could be con-tributorily negligent in an accident that caused his death. 12 Utah 2d 342, 366 P.2d 603, 604, 606 (1961). We acknowledged our prior statement in Nelson that children under seven may not be negligent, but reasoned that "the statement was mere dictum inasmuch as the plaintiffs in that case were 16 and 20 years at age" and that "[sluch a rule of law has not been observed by this court in other cases." Id. at 606. The Mann court held that the capacity for negligence of the five-year-old plaintiff was a factual inquiry to be resolved by a jury. Id. In subsequent cases we continued to ignore the Nelson dictum and held that a jury should decide whether a stx-and-a-half year old and a child just under six had the capacity to be negligent. Donohue v. Rolando, 16 Utah 2d 294, 400 P.2d 12, 13-14 (1965); Rivas v. Pac. Fin. Co., 16 Utah 2d 183, 397 P.2d 990, 991-92 (1964). {11 Despite this court's refusal to apply the Illinois rule, however, we later used at least a portion of that rule. In Kilpack v. Wignall, we had to determine as a matter of law whether a seven year old had the capacity to be negligent. ,. 604 P.2d 462, 468, 465-66 (Utah 1979). The Kilpack court ignored our caselaw that either explicitly rejected or disregarded the Nelson dictum and quoted the Nelson opinion's articulation of the Illinois rule. Id. at 466. Because the child plaintiff in Kilpack was seven, this court then applied a presumption that he was incapable of contributory. negligence. Id. We held that because no evidence was presented to rebut this presumption of incapacity, the seven-year-old plaintiff was not negligent as a matter of law. Id. 112 The holding of the Kilpack opinion, however, does not control in this case. In Kilpack, we applied the Illinois rule's rebut-table presumption that children between the ages of seven and fourteen are incapable of negligence. We had no occasion to apply the rule's conclusive presumption that children under seven are not liable for negligence. Indeed, when this court has been presented with claims that five and six year olds have been negligent, we have held that the child's capacity for negligence was a jury question. Donohue, 400 P.2d at 13-14 (six-and-a-half-year-old child); Rivas, 397 P.2d at 991-92 (child just under six); Mann, 366 P.2d at 604, 606 (five-and-a-half-year-old child). T13 We therefore reject the defendant's assertion that Utah has recognized a conclusive presumption that children under seven are incapable of negligence.2 Statements we have made to this éffect are dicta, and this court has explicitly refused to follow this rule when the issue has been squarely presented. Mann, 366 P.2d at 606. IL. . THE RESTATEMENT RULE 14 Although this court has never held that children under seven may not be held liable for negligence, we have recognized that there is an age at which a child is "so young and immature as to require the court to judicially know that he is. not responsible for his act." Donohue v. Rolando, 16 Utah 24 294, 400 P.2d 12, 14 (1965). But we have not yet explicitly held what the cutoff age for negligence lability is. This court has previously decided this question on an ad hoe basis. An examination of our caselaw, though, reveals a dividing line between children under the age of five and children aged five and above. . f 15 As noted above, when we have examined the capacity of five and six year olds to be negligent we have held that it was a jury question unless reasonable minds could not differ on the issue. Donohue, 400 P.2d at 13-14; Rivas v. Pac. Fin. Co., 16 Utah 2d [928] 183, 397 P.2d 990, 991-92 (1964); Mann v. Fairbourn, 12 Utah 2d 342, 366 P.2d 603, 604, 606 (1961). We have found only one opinion in which this court has assessed the capacity of a child under five to be negligent. In Herald v. Smith, a motorist struck a four-year-and-ten-month-old girl while she was crossing the street. 56 Utah 304, 190 P. 932, 933 (1920). The girl sued the motorist for negligence. Id. at 932. After the trial, the district court directed a defense verdict after apparently concluding that the evidence could only support a finding that the child's negligence had contributed to the accident. Id. at 983. On appeal, we held that the child could not be charged with contributory negligence: "A child of that age cannot, as a matter of law, be held to have appreciated the danger and is not presumed to conduct herself as an adult person would under similar cireumstances." Id. 116 Granted, the procedural posture of Herald makes it a less than ideal signpost for determining the minimum age for negligence lability under Utah's common law. The Herald court reversed the trial court's legal conclusion that the child plaintiff had been negligent, Notably, we were not affirming a lower court's legal determination that a child had not been negligent, Herald indicates, however, that this court's conclusion that the four-year-old plaintiff was not capable of negligence was arrived at "as a matter of law." Id. In line with this legal determination, Herald further held that the resolution of a factual dispute at trial as to whether the motorist sounded his horn before the accident would not affect its conclusion that the child did not have the capacity 'to be negligent, reasoning that an "ordinary child of that age could neither appreciate nor understand the object sought or the reasons for giving such warning." Id. at 934. We therefore held that upon remand, the child plaintiff was entitled to submit to -a jury the question of whether the motorist had negligently caused the accident, further indicating that the Herald opinion had resolved the contributory negligence issue in favor of the child plaintiff as a matter of law. Id. 17 The Herald court's holding that a girl two months shy of her fifth birthday could not be negligent marks a dividing line with subsequent cases holding that five year olds could have the capacity to be negligent. See Rivas, 397 P.2d at 991-92; Mann, 366 P.2d at 604, 606. This division matches the line drawn by the Restatement (Third) of Torts, which states: "A child less than five years of age is incapable of negligence." RestateMENT (Terp) or Torts: Puys. & Emot. Harm § 10Gb) (Am. Law Inst. 2010). The restatement rule is consistent with the rule adopted by the majority of states, which holds that children under the age of at least five (several states have a higher age limit) may not be held liable for negligence. Id. § 10 reporters' note, emt. d. The restatement authors note that "only in a tiny handful of states are there actual cases that have permitted findings of negligence in the conduct of children who are less than five." Id. {18 A number of policy considerations support the restatement rule. Children under the age of five have a limited capacity to appreciate how their actions can cause harm to themselves or others and have an inadequate internal ability to control impulses that may lead to injuries. See id. § 10 emt. d. Absent an adequate ability to foresee consequences or control their behavior, "the possibility is slight that the conduct of a child under five is either deserving of moral criticism or is capable of being deterred by the application of tort rules." Id. Moreover, assessing a young child's capacity for negligence by placing the child on the witness stand to answer questions about her individual understanding of cause and effect, foreseeability, and capacity for impulse control is problematic to say the least. See id. This is especially true where the trial examination would likely occur years after the incident when the child has matured, making it difficult for the child to reclaim her earlier state of mind. Finally, the restatement rule recognizes that there is an age below which it is unseemly to subject a child to the judicial process or to adjudicate a child's liability for negligence. T19 Of course, categorical rules are, by their nature, imperfect. Children develop at different rates, and some four year olds are undoubtedly more mature than some five [929] year olds. Despite the inherent drawbacks of age-based rulemaking, however, we must engage in this line-drawing process to some extent, Legislatures have done so by setting the age at which individuals can work, drive, marry, vote, serve in the military, smoke, and drink aleohol, as well as establishing the age of consent. Courts also make hard, age-based rules. The Supreme Court has determined that the Constitution prohibits the execution of an "adolescent" who commits murder just days before his eighteenth birthday, but permits the death penalty for an "adult" who commits the same crime just days after turning eighteen. Roper v. Simmons, 543 U.S. 551, 578, 125 S.Ct. 1183, 161 L Ed.2d 1 (2005); see also id. at 574, 125 S.Ct., 1183 (rejecting objections to drawing a hard line at eighteen). This court has also created age-based rules as part of the common law-finding that parent's waiver of a minor's prospective claim for negligence is unenforceable, for example. Hawkins ex rel. Hawkins v. Peart, 2001 UT 94, ¶ 13, 37 P.3d 1062, And although statutes now establish the age of majority, determining the age when individuals assume independent legal rights, such as the capacity to contract, was a common law function. 42 Au. Jur. 2p Infonts § 4 (2010); RestaremENt (SEconp) or ConTRACTS § 14 emt. a (Am. Law Ingt. 1981). 20 In each of these instances the advantages of uniformity, consistency, and efficiency justify a bright-line rule, despite its imperfections. Determining the appropriate age at which each of these rules should be applied on an individualized, case-by-case basis-e.g., conducting a review process to determine when every person is mature enough to vote or consent to sexual relations-would be so inefficient and create such uncertainty as to be unworkable. Rejecting definitive age-based rulemaking also unduly impairs policy making concerning the appropriate ages for certain activities. 21 We conclude that the instances where it would be appropriate to hold a child under the age of five lable for negligence would be rare enough that the social costs of conducting an individualized inquiry are not justified. Litigants are entitled to some amount of certainty and consistency,. And this court has. the duty to consider the propriety of subjecting children of tender years to tort lability, or, when they are plaintiffs, denying them recovery for the negligence of others. {22 We therefore adopt the restatement rule that children under the age of five may not be. held liable for negligence. The question of whether a child five or over is capable of negligence is reserved for the fact-finder, unless a court determines that no reasonable jury could disagree on the issue. Such a rule conforms with our precedents and promotes important public policies. CONCLUSION 1128 We reverse the district court's order denying summary judgment in favor of the four-year-old defendant. We remand with instructions to grant summary judgment. Footnotes [1] While the child accused of negligence in this case is a defendant, the issue of a child's capacity to be negligent has most often been addressed in cases where the defendant has asserted that a child plaintiff should be charged with contributory negligence. These contributory negligence cases are relevant to this case because the capacity for negligence of a child defendant and a child plaintiff is measured by the same standard. See Restatement (Turo) or Torts: Puys, & Emor. Harm § 10 cmt. e (Am. Law Inst. 2010); see also Rowe v. Sisters of the Pallottine Missionary Soc'y, 211 W.Va. 16, 560 S.E.2d 491, 498 (2001) (comparative neghgence defense requires proof of each of the elements of negligence). [2] We do not resolve the question of whether Utah recognizes a rebuttable presumption that children under the age of fourteen are incapable of negligence. Our caselaw is in conflict on this point. The Kilpack court applied this presumption in a case involving a seven year old. But that case appears to contradict earlier cases addressing a child's capacity fé; negligence that rejected the Illinois rule and resolved this issue without referring to a judicially created presumption of either incapacity or capacity for negligence. See Donohue, 400 P.2d at 13-14; Rivas, 397 P.2d at 991-92; Mann, 366 P.2d at 606,