Opinion
No. 70-337 (Supreme Court No. 23286)
Decided October 27, 1970.
Action for personal injury allegedly caused either by negligence or by intentional wrongdoing of defendant, a seven-year-old child. From dismissal of complaint by trial court, plaintiff appealed.
Reversed
1. NEGLIGENCE — Seven-Year-Old — Liable — Question of Fact. Trial court erred in ruling as a matter of law that seven-year-old defendant cannot be held liable for his negligent conduct, such question being one of fact.
2. ASSAULT AND BATTERY — Seven-Year-Old — Legally Capable — Intentional Tort — Factual Issue. Question as to whether seven-year-old child is legally capable of committing an intentional tort presents a factual issue for the jury.
Error to the District Court of Boulder County, Honorable William E. Buck, Judge.
Dawson, Nagel, Sherman Howard, Michael A. Williams, Scott W. Johnson, for plaintiff in error.
Zarlengo, Mott and Carlin, John C. Mott, for defendant in error.
This case was originally filed in the Supreme Court of the State of Colorado and subsequently transferred to the Court of Appeals under authority vested in the Supreme Court.
The parties appear in the same order as they appeared at trial and shall be referred to in the same manner. The complaint filed by plaintiff alleged that either because of defendant's negligence (first claim for relief), or his intentional wrongdoing (second claim for relief), plaintiff was injured in such manner as to cause the loss of one eye. Defendant moved for dismissal of the complaint on the ground that a seven-year-old could not be held liable for negligence or for an intentional wrong. The trial court granted the motion.
Although the issue of a seven-year-old's liability for his negligent conduct has never been raised directly in Colorado, two recent cases decided by the Supreme Court indicate that the liability of a seven-year-old is a question of fact, not one of law.
In Benallo v. Bare, 162 Colo. 22, 427 P.2d 323, the question presented was whether or not a six-year-old could be found guilty of contributory negligence. After reviewing the various Colorado cases on a minor's negligence, the Supreme Court decided that it was time to draw a line. In so doing, the court stated:
"We believe it is desirable at this time to adopt a specific rule on the problem involved here. We hold, therefore, along with those jurisdictions previously cited, that a child six years of age or younger is incapable of being contributorily negligent. The trial court was thus correct in taking this issue from the jury."
In the later case of Wales v. Howard, 164 Colo. 167, 433 P.2d 493, the Supreme Court held that it was jury question as to whether a seven-year-old child could be contributorily negligent. The court stated:
"It was for the jury to determine whether this seven-year-old child had exercised the same care as a child of the same age, mental capacity and experience would ordinarily exercise under the circumstances of this case."
In these two cases it is apparent that the Supreme Court has sought to establish a clear rule as to when a minor becomes responsible for his tortious conduct. Although both cases dealt with contributory negligence rather than negligence, the principle is the same, since negligence, whether contributory or direct, merely applies to an act which in a natural and foreseeable course of events is a proximate cause of the injury complained of.
Therefore, we hold that the trial court erred in ruling as a matter of law that a seven-year-old defendant cannot be held liable for his conduct. Such question is one of fact. The standard of care required of a child is set forth in Colorado Jury Instructions § 9:4 as follows:
"Children are under a duty to use that degree of care which ordinarily prudent children of similar age, experience and intelligence are accustomed to use under like circumstances to protect (themselves) (others) from (bodily injury) (death) (property damage)."
On the question as to whether a seven-year-old child could be legally capable of committing an intentional tort, we hold that such question presents a factual issue for the jury. Defendant relies in part on the fact that C.R.S. Colo., 40-1-4, provides that "an infant under the age of 10 years shall not be found guilty of any crime or misdemeanor." This is not relevant to a determination of liability for the commission of an intentional tort. It is solely a question of fact as to whether the particular child had the capacity to form the intention to act and acted upon that intention. Seaburg v. Williams, 16 Ill. App. 2d 295, 148 N.E.2d 49, 67 A.L.R.2d 562.
Judgment reversed with the direction that the complaint be reinstated.
CHIEF JUDGE SILVERSTEIN and JUDGE DUFFORD concur.