A child may be of such tender age that he does not fully appreciate or discern the dangerous consequences of his act. SeeTurner, 308 So.2d at 277 ; Ryle v. Potter, 413 So.2d 649, 651 (La. App. 1 Cir. 1982). In Louisiana, courts generally consider the age of five years (J.M.'s age on the day of the playground incident) below the age at which a child is capable of such discernment.
It is worth noting here that similar rules are applied in other contexts and that the principles and policies underlying these rules are similar to the principles and policies that underlie the rule being applied in this case. See, e.g., Ryle v. Potter, 413 So.2d 649 (La.App. 1982) (parents' liability for acts of their children); Flannigan v. Valliant, 400 So.2d 225 (La.App. 1981) writ denied, 406 So.2d 611 (La. 1981) (same); Rennier v. Johnson, 410 So.2d 1149 (La.App. 1981) writ denied, 412 So.2d 1115 (La. 1982) (employer's liability for intentional torts of his employee); Weysham v. New Orleans Public Service, Inc., 385 So.2d 19 (La.App. 1980) writ denied, 392 So.2d 690 (La. 1980) (same); Vredenburg v. Behan, 33 La.Ann. 627, 639-40 (1881) (owner of dangerous animal liable for damages when animal attacked a man after being incited by a boy).See also Green, "The Causal Relation Issue in Negligence Law," 60 Mich.L.Rev. 543, 557, and 569 n. 77 (1962); Malone, "Ruminations on Cause-In-Fact," 9 Stan.L.Rev. 60, 66, 88-94 (1956);
Deroche argues that the Louisiana jurisprudence holds that under Civil Code articles 2318 and 237, the parent's liability for the acts of a minor child is strict or "absolute", and that the parent and child are solidary obligors. See Turner v. Bucher, 308 So.2d 270 (La. 1975); Ryle v. Potter, 413 So.2d 649 (La.App. 1st Cir. 1982); Deshotel v. Casualty Reciprocal Exchange, 350 So.2d 283 (La.App. 3rd Cir. 1977). Thus, Deroche contends that because the law treats the parent and the child as solidary obligors, then the victim can compel payment from either.
In another similar case, the appellate court found the parent liable for the child, who was involved in an air rifle accident, holding that "an adult would discern the consequences of firing an air rifle" in the direction of another child and be grossly negligent. Ryle v. Potter, 413 So.2d 649, 651 (La.App. 1st Cir. 1982). Although the standard by which the actions of a child are measured has not been applied in another supreme court case since Turner, the court in its landmark ruling in Loescher v. Parr, supra, elaborated on the standard as follows:
Under ordinary circumstances then, the parents of a child living at home are strictly liable for the torts of their unemancipated children. See e.g. Ryle v. Potter, 413 So.2d 649 (La.App. 1 Cir. 1982). There are refinements on the general rule, such as when one parent loses parental authority by a judgment of custody in favor of the other parent.
Dupas v. City of New Orleans, 354 So.2d 1311 (La. 1978), U.S. cert. denied 440 U.S. 971, 99 S.Ct. 1534, 59 L.Ed.2d 788 (1979). Children as young as nine years old have been held to be capable of contributory negligence, but the child's action must be judged by his maturity and capacity to evaluate the circumstances in each particular case and he must exercise only the care expected of his age, intelligence and experience. Brantley v. Brown, 277 So.2d 141 (La. 1973); Ryle v. Potter, 413 So.2d 649 (La.App. 1st Cir. 1982); Kontomitras v. New Orleans Public Service, Inc., 314 So.2d 441 (La.App. 4th Cir. 1975). Sammy was fourteen years old at the time of this accident.
The actions of a twelve year old child "must be judged by his maturity and capacity to evaluate circumstances in each particular case, and he must exercise only the care expected of his age, intelligence, and experience." Ryle v. Potter, 413 So.2d 649, 651 (La.App. 1st Cir. 1982). It is uncontroverted that Carey is bright and a high achiever scholastically.