DeLuca v. Bowden

Steen, J. In Holbrock v. Hamilton Distributing, supra, this court held that a child under the age of seven is conclusively presumed to be incapable of contributory negligence. Our goal in that case, stated at page 189, was “a [394] clear and simple rule which we believe will reach just and accurate results while also achieving a desirable judicial economy.” The instant case presents the question of whether a child under the age of seven is liable for primary negligence or for an intentional tort. Appellees suggest that our decision in Holbrock does not necessarily require that children of tender years be considered free of liability for primary negligence. They argue first that a child may more easily comprehend his own acts than the acts of others, and second, that incapacity for contributory negligence is grounded in a policy of imposing a higher standard of care for the protection of injured children. The former argument is wholly speculative, and the distinction it suggests between primary and contributory negligence is simplistic. The acts which constitute negligence are the same, whether that negligence is primary or contributory, and so too is the level of capacity and understanding necessary to a finding of negligence. Appellees argue that lack of capacity for contributory negligence, as found in Holbrock, is grounded in a policy of imposing a higher standard of care for the protection of children. That argument has some merit. However, this is because we recognize that children, especially children of tender years, gradually acquire the capacity to understand and appreciate the consequences of their acts as they acquire age and experience. Only with some maturity does a child begin to realize that his choice of acts may injure himself or others, and only then can it be said that he possesses the capacity to act “reasonably.” The practical need for some simple and just rule is the same in this case as in Holbrock, and we adhere to the rule stated therein. The issue presented in Holbrock was whether a child under the age of seven was capable of contributory negligence as a matter of law. As this court pointed out, three choices of law were presented by the decisions from other jurisdictions. A similar choice among three rules of law is presented in fashioning a rule for determining the liability of a child under the age of seven for an intentional [395] tort. The first is that a child under seven years of age is conclusively presumed to be incapable of harmful intent. Queen Ins. Co. v. Hammond (1965), 374 Mich. 655, 132 N. W. 2d 792; see Johnson v. Butterworth (1934), 180 La. 586, 157 So. 121. Of. Hatch v. O’Neill (1973), 231 Ga. 446, 202 S. E. 2d 44. The second is that a child of any age may be liable for an intentional tort, and that the age of the child is relevant only insofar as determining whether the child knew with substantial certainty that his intentional act would bring about a harmful or offensive contact. Garratt v. Dailey (1955), 46 Wash. 2d 197, 279 P. 2d 1091; Horton v. Reaves (Colo. 1974), 526 P. 2d 304; Ellis v. D’Angelo (1953), 116 Cal. App. 2d 310, 253 P. 2d 675. The third is that the child is strictly liable for trespass if he actually intended the physical act which caused the injury. Seaburg v. Williams (1958), 16 Ill. App. 2d 295, 148 N. E. 2d 49. The basic dilemma of all these cases is that a child of tender years has only some dim and imponderable responsibility for his acts—and yet those acts, as those of an adult, may cause injury to others. It is probably inevitable as a part of growing up that in rare cases a child will cause severe injuries to others. Yet it is most difficult to attach blame to a child of tender years for those injuries in any sense comparable to the blame attachable to an adult, whom we hold responsible for his acts. Our laws and our moral concepts assume actors capable of legal and moral choices, of which a young child is incapable. See Bohlen, Liability in Tort of Infants and Insane Persons, 23 Mich. L. Rev. 9. For that reason, a child under seven years of age was at common law considered incapable of criminal responsibility. For the same reason, we cannot accept those rules which hold a child strictly liable, or which permit a jury to find liability, in cases of intentional tort. Our choice is between rules which permit the imposition of a legal judgment upon a young child for his intentional acts, and a rule which holds that members of society must accept the damage done by very young children to be no more subject to legal action than some force of nature or act of God, Our choice [396] is the latter rule. The same public policy considerations which led this court in Holbroch to hold that children under the age of seven are not liable for contributory negligence, convince us that children under the age of seven also should not be held liable for intentional torts. Judgment accordingly. O’Neill, C. J., Herbert, Corrigan and P. Brown, JJ., concur. W. Brown, J., concurs in the syllabus and judgment. Celebrezze, J,, dissents.