*1 during relationship for life her with Mr. Jen- great deal of fear her kins,” testimony, question her After extensive the issue husband. sought expert’s opinion was asked. The defendant to elicit the believed, shooting, whether defendant at the time of the that she was her defending life. quite asking not the different from ultimate and expert’s opinion it

whether was the that defendant shot the victim Pugh. self-defense. That was excluded the research, expert’s experience, extensively training, performed qualified opinion evaluation of defendant to on her reach the state shooting. mind at beyond of defendant’s the time of the This was ken average juror, pressed who would hard draw their own conclusion as the belief defendant held when she committed present expert the act. Defendant was entitled aid 612, jury. State, assist Smith v.

(1981).

Decided December Wadkins, L.

Robert appellant. Douglas Pullen, Roger Anderson, C. Attorney, District H. Assis- tant Attorney, appellee. District

A95A1411. al. CLANTON et v. GWINNETT COUNTY SCHOOL

DISTRICT et al.

Beasley, Judge. Chief III, parents, through Clanton his sued the Gwin- County nett School District and Ann alleging Jo Rosselle that as a result of their negligence Jimmy injured. The incident occurred Jimmy, when who and ten and one-half months being supervised by Ms. Rosselle in kindergarten class at a school in Gwinnett. planned Part of the kindergarten activities for the class was candlemaking. Clantons, According Jimmy tripped to the boiling electric cord of a plate, spill, hot caused water to and suf- fered first and second A degree burns. returned a defendants’ verdict.

1. In four error, enumerations the Clantons claim that the trial court in failing erred jury upon request under six presumed incapable contributory old is negligence; in charging court erred regarding comparative negligence; denying erred their mo- contributory negligence.1 on the issue of a directed verdict

tion for error, separate (a) appellants’ enumerations First we note five enumera- Rule state Appeals in accordance with filed brief, however, Rule 27 specified set out Their tions. brief, (a) corre- only five sections lists four. But are *2 separate in document. The the sponding to the five enumerations parties’ of decipher the structure upon not to should be called Court lim- sidetracks consume up. so as items Such to match submissions issues. the spent better on substantive ited time (b) Second, properly object to plaintiffs it did not is notable in on law as set out OCGA instructing the the § the court Actually, there was a discussion it at court verbatim. which the did position it conference, taking the pretrial plaintiffs the in ages and fourteen. Earlier the only to children between the of six conference, substantially offered it as a substitute for plaintiffs had the ac- part Request Charge to No. which of defendant’s by part request giving cepted striking objectionable the exceptions the was 51-1-5. asked for after OCGA When § given, recitation OCGA 51-1-5. plaintiffs did not mention the § statutory principle, objection, Thus the had the without as measuring in instruction for their deliberations the child’s conduct. is The not err And that as it should have been. trial court did but in given by Georgia Supreme Court rather followed the mandate the 736) Ashbaugh Trotter, gov- Ga. 46 which applies adversely appellants. It construes and the erns the to is 51-1-5. designated statute which now OCGA § Court, any in case Georgia in that nor other neither case read, any expert opinion on child ca- we have had for consideration pacities judicially so allow a reasoned cut-off six to be such, negligence. established for Absent the left up to all in the jury, particular which can size evidence case capacities its bring knowledge collective common children’s first, was determining capable bear whether the child second, premises negligent. whether the child Hilburn was Hilburn, (1926); American Oil Co. Ga. 23 v. Floyd, as (6) (1975). theory, related OCGA 24-1-1 sensible attitude Ashbaugh underlying Supreme opinion comports Court’s more justice pronouncement arbitrary age, than of an on one does behavior, responsible regardless side of which a child is held to, responsibil- legal it relates of which what and on other side no any complaint, they alleged negli- In “was the result of their had that the incident not gence Jimmy. on the of’ ity attaches. birthday kindergarten

In this instance the lacked his sixth bright, one in that less than and one-half months. He trial, four and the he had approximately between the incident cord, except all at school B. he fell over the earned A’s one When returning played housekeeping. the children he was to the area where teacher, gone apparently toy He truck he had had with the with, report many children in playing been there were too it, every- him do to tell housekeeping, she had told what to about body get tripped It out. The cord over which he floor. up to find whether this child tender exercised capacities “such care him to physical as mental and enable[d] [his] exercise actual circumstances occasion and situa- [this] . . .” tion. OCGA 51-1-5. Ashbaugh, the child was older four and one-half months than Clanton, gave and the no indication whatso

ever that the Code if section would control the child was under age six. It regard controlling Top Cochran, did not Red Cab v.Co. but rather declined to follow it because it did not even Top mention the Code Red one section. *3 of the two by appellants cases relied on in requesting charge here presumption. Instead, held, conclusive in Ashbaugh the Court “the plain language of the question Code section must . . . of the alleged infant’s in negligence is one for the this case under appropriate instructions Ashbaugh, supra from the tried court.” 47. at The Court had undertaken a nationwide search and found this to be widely view,” “the held specifically reciting the Restatement of Torts 2d, 283A. Neither the statute nor the gives § Restatement an auto cut-off, matic recognizing naturally that children de mature and velop their capacities faculties and at speeds ages. different and Bleckley, J.,

As C. in wrote for the Court Western & Atlantic R. Co. Young, 397, (2) (7 v. 81 (1888), Ga. 416 SE concerning the (which standard of due applicable care “Capacity to children: in personal experience cludes well gifts) thing. as as natural main Age significance except is of Thus, no sign capacity.” as a mark or care part [nine-year-old] on the boy might this “[d]ue of that of fall far short man, prudent yet boys and exceed of average of his age. own According school, standing evidence to his he was much above the average his class.” Id. at 417.

After case, Young the second trial the Court reiterated: distinctly held, hold, care, “We again according that due its capacity, that can years. all be exacted a child of tender code, again This we did knowledge do with full in gen- language, ordinary care, exception eral express exacts with no toas children; means, law, ordinary every but as in care our care of

346 children, for it exception implied man, must be an there

prudent from a diligence measure the same require absurd would be preserved when the code is principle of the from a man. child as diligence of due omission to follow the consequence is made same ordinary diligence by an omission of follow the would a child which whatever, reason terms with have no amicable law is to Unless adult. & R. Co. Atlantic subject.” Western a sound view this must be 197) (1889). (7) (10 The statute was 512, SE Young, Ga. 518-519 v. 83 1895, 2901. language. Code from this originally derived infancy the issue early stages of that at some It is doubtless See, e.g., Reed law for the court. a matter of negligence will be 286) (1980), where a Dixon, App. SE2d 604 law, as a matter of year chargeable, over a old” was “slightly the street where wandering into contributory negligence we a case. Whether But this is not such Id. at 608. was no crosswalk. relevant. of fact is not jury as a matter agree with the would as a Supreme Court concluded Georgia It is true that incapable of con- and one-half was that a child four matter of law Co., was not Top in Red Cab the statute tributory negligence, but as (33 Co., Ga. v. Southern R. mentioned. Crawford 826) (1899). jurisdictions where It cited cases from other six, ages seven and because children were negligence precluded Ashbaugh. 51-1-5, according clearly subject to the rule OCGA § 820) (1979), Webb, Davis case, five age as child was almost the same correctly followed held that the trial court ten months. The court refusing Ashbaugh statutory principle and by giving the care for his chargeable with due the child was too safety contributory negligence. own or with Stores,

Young Ga. v. Wal-Mart applied OCGA 51-1-5 The court eight-year-old. involved an jury, of the child’s one for and considered the Kroger Co., Hobson v. citing i.e., Jimmy, younger than

Hobson involved a child a little *4 in OCGA eight subject months. He was to the standard child summary upheld was because “the judgment to defendant upon yet the existence of the hazard” advanced was aware fact of shadowy only “some semblance” of an it. The court stated there was ability appreciate the existence and regarding the child’s Sprite bottle on scope danger posed by spilled Sprite and a broken of 420. grocery store floor. Id. at 29) (3) (315 Cantrell, App. In 795 SE2d Blackwell v. 169 Ga. six, a (1984), not error to refuse age the child was and it was deemed contributory pri- or request charge incapable the child was of that 51-1-5, stan- mary “the correct negligence charge and to OCGA §

347 dard,” Ashbaugh is cited. instead. not in Le age years” of ... of tender is stated

The the “minor (248 235) Youmans, (1978), but App. v. 147 174 SE2d quire Ga. correctly Ashbaugh. The that trial court followed court held rejected appellant’s invitation to narrow it. (434 Prop. Linthicum, App.

Commerce v. 209 Ga. SE2d Ashbaugh, ignores does not mention the statute and and its incapability applied to presumption statement of Crawford’s four-year-old merely Housing Auth. child dictum. Valdosta (287 Finnessee, (1) 569) (1981), v. Ga. SE2d a presumption negligence incapability conclusive instance a one-half, by two and who was bitten a rat at home housing project.

In this case it jury question. was 2. remaining complains charge enumeration the court’s aspect damages. liability. It moot because the found no Adams, Pouncey v. Judgment J., Andrews, P. Birdsong, Johnson, Black- affirmed. Smith, JJ., J., J.,

burn and McMurray, Pope, concur. P. P. and Ruf- J., fin, dissent.

Pope, Presiding Judge, dissenting.

I respectfully First, contrary conclusion, dissent. the majority’s I think the preserve Clantons did arguments by raised for review this Court. Though they except not specifically did to the reci- court’s tation of OCGA argued the Clantons repeatedly Jimmy should be incapable instructed Clanton was of con- tributory negligence. Both at again conference and when exceptions asked for charge, to the argued Clantons should have been charged conclusively that a child six pre- under incapable sumed of contributory negligence.

Furthermore, I although am mindful our Court’s de- Trotter, in Ashbaugh cision 237 Ga. 46 Ash- baugh must narrowly be construed. The determination Ash- from baugh plaintiff that a years may capable six and three months not should be extended to a child who is Jimmy and ten and one-half months Clanton case, time accident In here. the court should have con- cluded as a matter law that too Clanton was contributorily negligent. by supported conclusion is those cases which were not ex-

plicitly Smith, by Ashbaugh. e.g., overruled Christian 857) (1949) (child six under not chargeable negligence). Co., R. v. Southern Crawford 826) (1899), directly which Ash- overruled

baugh, from the of the child stated: “[w]here danger, capacity to avoid no doubt as to its want there can be think that of law. ... We question as a matter will decide this proposition to the soundness of can no doubt as incapable being guilty years only four and a half child at 877-878. contributory negligence.” Id. here, as to the soundness

Similarly there can be no doubt Clanton, years was less than six Jimmy who proposition that Although the rec- contributory negligence. incapable being guilty naturally develop their faculties mature and ognition that children sound, also true speeds ages it is capacities at different capable of are not deemed under which children there is recognizes princi- injuries. majority contributing to their own early stages infancy that at some ple, stating that is doubtless “[i]t a matter of law for the court.” None- the issue of will be theless, that a should resolve majority concludes years ten and one-half party is a child five injured when the younger I than majority, conclude that a months old. Unlike the to resolve this issue. other six old is too for words, presumptively incapable of con- under six old is a child tributory negligence.

Accordingly, the court should have instructed incapable negli- presumed Clanton was Linthicum, Prop. Commerce gence. e.g., Housing Finnessee, Auth. v. Valdosta (1993); Dixon, 569) (1981); Reed 286) (1980). In my opinion, the court’s failure to do so was reversible error. Presiding Judge McMurray

I am authorized to state join in Judge Ruffin this dissent.

Decided December Scavo, Weinstock, Levy, & J. Bertram Weinstock Michael appellants. Reeves,

Gorby Gorby, Blakely Frye, Thompson & J. H. Michael Sweeny, Sweeny, & E. Victoria appellees.