*2 TRASK, and HUFSTEDLER Before HILL,* and District .Judges, Circuit Judge.
HUFSTEDLER, Judge: Circuit on behalf of themselves Clarks The child, Dennis, appeal minor and judgment favor Circus-Cir- a from entered after a cus, (“Circus”), Inc. damages action for for in their verdict injuries by suffered Dennis. personal on diversity. was based Jurisdiction the accident Dennis the time of At months, 26 days and old. 4was suspended a chain about He struck he was ground running as feet from parking his mother in Circus’s towards mouth, He struck his Nevada. lot injuries sustaining upon thereby founded. complaint which is the dis claim of error principal per instruсtion court’s trict that Dennis was con mitting it to find negligent.1 The instruction tributorily modified version an slightly awas .of Quillian v. Math approved in instruction P.2d 111. (1970) 86 Nev. ews agree that Nevada law con trols, only Nevada case which and we have been able to discover that deals сhildren However, Quillian. we believe Sutton, Nev., Vegas, E. Las Raymond Quillian. court misread That the district plaintiffs-appellants. for personal injuries sustained case involved Jemison, six-year old child when she darted Delanoy by & Las Ve- Beckley, crossing of a car as shе was in front Nev., defendant-appellee. gas, * not, negligent. you Hill, was not If that it Irving District find United States Honorable California, negligent. then his conduct Judge District of the Central by designation. sitting you preponderance “If of the evi- did dence Dennis Clark not exercise the tо the same standard of is not held 1. “A child ordinary amount of care that an child of the only required to adult and is as an conduct experience intelligence same and ordinarily of care exercise would have used in the same or similar cir- of the same exercised children would safety, you cumstances for his own find that experience. intelligence no There is sight Dennis did not use his senses of Clark law, which, precise as a matter hearing ordinary as an child of the and age, experience same held aсcountable for his own to be child comes would have ap- negligent the same standard as actions appreciate danger and avoid the done you to determine plies It is for adults. circumstances, and that he like or similar thereby of Dennis Clark the сonduct or not injuries, then own contributed his reasonably might such as was or was your the defendant.” verdict will be for same expected a child of the from age.. been was, then his conduct that it you determine If of a child city street. four-lane arterial the jury a faсt issue for upon prop- six could argued child of appellant unless instructions reasonable contributorily negligent. In re- one come to but could claim, the Nevada court re-
jecting
evidence. This allows
for a degree
varying approachеs to the
viewed
flexibility in the
handling of
each
negligence of
question
children,
*3
as it comes before the
case
trial
adopted
following
test:
court.
and
decide initially
That
wheth-
contributory negli-
of
question
“[T]he
reasonable minds could
believe that
always
is
ques-
a fact
gence of a child
particular
has
child
the capacity to
upon proper
jury
instruc-
tion for
that
of
exercise
care expected
concerning
special
the child’s
tions
children of
same age,
of
experi-
carе, unless,
course,
of
rea-
standard of
and
in
ence
similar circum-
could come to but one
sonable
stances. Should the court determine
evidence.
the child
that
has
capacity, the
then
is to decide whether such
was
in
particular
care
exercised
(Courtell McEachen,
v.
The California
otherwise,
the court
case. Should
then,
rule
448, 334 P.2d
(1959))
870
51 Cal.2d
course,
of
the issue of contributo-
Fairbourn,
v.
(Mann
12 Utah
Utah
2d
fault would not be
ry
submitted for
(1961))
603
342, 366 P.2d
cases are il-
procedure
resolution. This
was
Professor
lustrative.
Prosser states:
in the
case
followed
majority of
great
the courts have
‘The
it.
supports
The evidence
approve
such fixed
rejected any
arbitrary
court’s conclusion that
the plaintiff-
delimitation, and
rules of
have held
possessed
capacity
child
of а nor-
age
well
children
under the
of
Indeed,
year
six
old.
mal
appel-
capable
negli-
of
seven can be
some
do not contend
lants
otherwise.”
Undoubtedly there
gent conduct.
P.2d
(467
Emphasis
at 113.
added.)
minimum, probably
an irreducible
McEachen,
v.
Courtell
Prosser and the
neighborhood
in the
somewhere
Torts, Second,
Restatement
relied on
age,
ought
but it
years
four
by Quillian, agree that young children
laid down
fixed
rules
in advance
years
5
over
can be capable of
regard
particular
without
case.
contributоry negligence, and, unless
decreases,
As the
there are simply
showing
is some
there
of incapacity over
possibilities
fewer
until
and above
wheth-
finally,
point,
at some indeterminate
particular
er the
child under the circum-
at all.’
there are none
Prosser on
contributorily
stances
negligent is a
(3d
1964).
Torts,
Ac-
pp. 158-159
ed.
jury. However,
for the
matter
the same
Rest, Torts, Second,
cord:
Sec. 283a.
recognize
also
authorities
that children
In our opinion it is not advisable to
vicinity of 4 years
in the
old do not have
establish а fixed and arbitrary rule.
capacity
of being
neg-
contributorily
prefer
to treat the issue
The California
ligent.2
authorities,
McEachen,
capacity
supra,
Cal.2d at
a child’s
51
is such
Courtell v.
be
chargeable
454,
questions
873:
wheth
with
334 P.2d at
“The
ais
exercising
capablе
jury,
of fact
young
care to
for the
er a child was
avoid the
unless so
danger
particular
and immature as
cially
judi-
encountered and
the court to
whether,
so,
know that it
the child failed to exercise due
could not
contribute to its
injury
injury,
responsible
care, thereby contributing
acts,
or
own
be
to the
are
for its
soor
that,
mature
normally
old and
though
trier of fact to determine.
for the
must know
”
,
infant, yet
rejected
theory
responsible.’
it is
have
.
.
[C]ourts
age, namely,
Torts, Second,
plaintiffs
283A,
between
Restatement of
that а child
five and
gence
§
com-
six,
incapable
contributory negli
“Undoubtedly,
b:
ment
age, probably
there is a minimum
of law.
vicinity
omitted]”
as a matter
somewhere in
[citation
years,
negligence
four
be found.
below which
can
Fairbaum,
never
supra,
12
2d at
Utah
Mann v.
“
.
.
.”
‘The
as tо
1331 that “the district court Courtell, holds should have with which have dealt line year notice that a 4V2 taken old years uniformly 5 old children running to his mother could not child incapa- children are that such held responsible for his acts when he ran (E. held contributory negligence. g., ble . . . chain The district into the (1943) 23 Cal.2d 144 v. Smith Crane concluding erred old); (3 year Morningred 356 P.2d capable negligence (2d 1961) Co. Dist. 196 State Golden submitting thereafter the ques- Cal.App.2d Cal.Rptr. (4 year 16 219 tion of (2d old); 1961) v. Goodwin Dist. Christian jury.” Cal.App.2d Cal.Rptr. (4 months) collects au-
years
[Christian
I read the above
as announc-
proposition
nationwide for the
thorities
ing as the law of Nevada that a child of
years
children between
and 5
old
law,
as a
matter of
cannot
4V2
*4
of
incapable
contributory negligence];
are
of
guilty
and in
D’Angelo (1st
1953)
v.
Dist.
Ellis
116
a
involving
age
case
child of this
may
no
(4
253
Cal.App.2d
year old);
P.2d 675
contributory
negligence
issue of
be
(1964)
Fowler v.
see also
Seaton
61
jury.
the
submitted to
681, 687-88,
Cal.Rptr.
39
Cal.2d
394
I am not at all sure that
the rule of
P.2d 697.
majority
law which the
apply is in ac-
with Nevada law
cord
as enunciated by
Quillian,
holding of
of
The
Supreme
the Nevada
Court. About all
course,
apply
not
to Dennis.
does
But
safely
that can
be said is that
the rule of
controlling
the dictum
we think
law enunciated
the majority is not
authority from Ne
any clearer
of
want
by any reported
foreclоsed
Nevada deci-
Dennis’s
cannot be
A child of
vada:
sion.
contributorily
negligent
he is
because
observes,
realizing
majority
that his heedless
As
“incapable
only
of
Ne-
foreseeably
vada decision on
subject
lead to
in
of negli-
conduct
[his]
Quillian
(Ellis
D’Angelo, supra,
gence by
v.
116 Cal.
minors is
Mathews,
jury.”
677.)
supra,
253 P.2d at
which involved a
year
at
App.2d
old child.
Quillian
have taken
I
opinion
court should
far
district
from
year
clear. As to what rule
running
that a 4V2
old child
of law the
notice
Neva-
adopt
court would
responsi
respect
mother could
be held
da
with
to his
to a
child,
year
Quillian
acts when he ran into the
4V2
old
for his
is like a
ble
clas-
Fairbourn,
mystery
(See
supra,
story.
Mann v.
sical
There are
chain.
clues in
606.) The
pointing
P.2d at
in several
directions.
2d
There
12 Utah
concluding that
are,
view,
my
erred in
in
morе
point
court
district
clues
contributory negli
rejection
to a
of the
capable
rule of law enunci-
child
submitting the
majority
ated
thereafter
than there
gence and
are
negligence to
to its
pointing
adoption.
jury.
Quillian,
guardian
the child’s
con-
tended that
the Nevada
should
enough
not think there is
We do
merit
year
hold that a six
old
incapable
two contentions
in the other
to
negligence as a matter of law. The Ne-
comment.
vada court reviewed three different
ap-
and remanded.
Reversed
prоaches which American courts have
taken on
issue of the negligence of
HILL,
(con-
Judge
IRVING
District
children,
e., (1)
i.
a child under 7 is held
curring):
incapable
negligence
as a matter of
misgiv-
in the result
with
I concur
but
law, (2) such a
presumed
child is
to be
ings.
incapable
negligence
but the presump-
rebuttable,
(3)
tion is
such a
case,
child is
being
diversity
a
This
Neva-
capable
the issue is a
torts controls. The
majority
law of
da
procedure
resolution. This
be submitted to the
was fol-
to
un-
lowed
the case at
minds can come
reasonablе
to but
less
evidence,
approve it.”
and that vicini- The Restatement
ty years.” of 4 unfor- define the
tunately meaning does not Whether vicinity”. that means
“in under 4V2 or under phrase could specified. conceiv- any of the three meanings.
ably view, my personal rule of law the California courts have adopt-
ed, years child under 5 a matter of law be guilty
cannot as just is a with my experi- rule. accords
proper of life. Because the Nevada
ence spoken unclearly, so the door is
has left result
open majority has I, therefore,
reached concur in it. result
Certainly, precluded is not Quillian. suspect
the facts of But I when the gets
if and Nevada deciding precise
around case, in this it will presented decide it this
differently than court has done. *6 CHANEYFIELD, Appellant,
Samuel
The CITY OF NEW YORK and Chase, Appellees.
Mathews &
No. Docket 75-7183.
United Appeals, States Court of Second Circuit.
Argued Oct. 1975.
Decided Nov. 1975.
Certiorari April Denied
See