*1 For Hughes, Justice Justices Moun affirmance —Chief tain, Sullivan, Pashman, Clifford and Schreiber Judge Conford —7.
For reversal —None. GOSS, PLAINTIFF-RESPONDENT,
JAQUELINE ALLEN, STEVEN DEFENDANT-APPELLANT.
Argued Reargued November March Decided June 1976. *3 L. D' Mr. Rocco Ambrosio the cause for defendant- argued O’Donnell, D'Ambrosio, & appellant Leary, at (Messrs. torneys).
Mr. Herbert H. Weiland the for argued cause plaintiff- & respondent Hoyt, Weiland Hoyt, (Messrs. attorneys). The opinion the Court was by delivered J. a This ease involves claim personal for in- Sullivan, juries and arises a out of accident which occurred at skiing a in ski resort in New Vermont. Suit brought Jersey was because defendant, who was involved in accident, the is resident of New Jersey.1 jury returned for verdict defendant based on its specific finding that was not defendant negligent. On appeal, Appellate Division, an opinion reported at 134 N. Super. (1975), re- reversed manded for a new trial the trial com- holding judge as, mitted error in plain his to charge argument plaintiff 1We advised ora! were at has filed also suit in Vermont the owner of the ski resort. standard of care of defendant in the cirmumstances. We reverse reinstate the judgment defendant.
The factual situation involved detailed in the Appellate Division opinion summarized as follows:
On Eebruary skiеr, was plaintiff, experienced as a (cid:127)serving first aid advisor the ski Mad patrol River Glen ski- resort Vermont. facility includes which beginners slope near its end makes an left abrupt turn. The accident occurred some feet beyond the end of the slope flat area where and a friend plaintiff hap- pened to standing taking pictures. Plaintiff had been in the first aid room which working adjacent to area where plaintiff her friend were standing.
Defendant, then 17 age, was skier beginning who had limited cross-country had never at- skiing experience but downhill tempted a run. Nor had he to ever been Mad River arrival, Glen before. defendant to Upon was sent the begin- ners’ However, instead of slope. the mechanical T-bar riding lift to the top, defendant confined his first run lower portion slope. He walked a quarter way up down, hill and started com- successfully ski completing run paratively short of 30 feet until or so he came to the abrupt turn, left turn. In de- attempting negotiate fendant lost control over his momentum direction. He saw two ahead of him but girls because of the short distance his efforts remaining, and his regain control lack he did experience, not call out he until was almost upon the girls. Plaintiff attempted out but was get way unable to do so and was struck and knocked down de- *4 fendant. trial,
Prior the court ruled that the law to of the ease would law of Vermont. Counsel have agreed that Vermont as law to this accident the same New Jersey’s. is as The court charged jury trial that the standard care the case was not applicable degree the same care adult, of an rather that degree but of care which reasonably (cid:127)a of that prudent was (defendant under the same would have exercised age) conference, bar side circumstances. Eollowing
similar following: with charge court its supplemented charge right. Perhaps clearly thought I I I “All didn’t as as duty charged year with to the of a I know had reference old. 17-year-old beginner, I used term and that lead try straighten imposes confusion. Let me it some out. The law year year that standard of old care that a 17 old with the exрerience background year old had. It does not any any impose higher degree reasonably lower of care than can expected year respect experience old of a 17 background that Mr. Allen had in this case.” There was no taken to the As hereto- exception charge. noted, fore an submitted jury answer to interrogatory found the defendant not it negligent. Plaintiff on the that the ver- appealed solely jury ground dict was the evidence. The weight Appellate Division, however, sua raised the error in sponte, plain issue the court’s on the standard of care. Eol- charge applicable thereon, the of the issue and oral lowing briefing argument Division reversed and remanded for new trial Appellate essence, in the In finding plain Appellate error charge. an and that activity Division adult skiing was held under- normally where a child in an which is engages activity he held adults, taken such should be skiing, as skill, without of adult knowledge competence, standard Division added immaturity. Appellate for his allowancе of care been imposed, that had an adult standard it should been, well have found defendant might negli- gent. Division determination that defen Appellate should be held to the presented, circumstances
dant, was of an adult on its premised of care required standard which may be skiing activity dangerous conclusion that adults, undertaken and for normally only by others Restatement, are See required. which adult qualifications
447 283A, Torts 2d, c at 16 We Comment find nothing § in the record conclusion. support We think it judicially noticeable as recreational skiing save sport, activities, limited skiing hazardous engaged by per of all ages. sons Defendant’s attempt the lower negotiate end of the beginners’ cannot be slope certainly characterized aas skiing activity that as matter of law was hazardous he to others be held required that adult standard Gilbert, 935, of conduct. Williams v. Ark. 239 395 S. W. 2d Tamborini, 333 Conway 190, 68 Ill. (1965); App. 2d 215 Hall, 303, N. E. 2d Bixenman v. 1966); Ct. 251 Ind. (App. 527, 242 N. E. 837 Ranson v. Melegi, 2d 18 Mich. (1968); 171 N. W. App. 476, Harper 2d 482 2 (Ct. 1969); App. James, Torts, The Law 927 16.8 at but see (1956); 128, Neumann v. Misc. N. Shlansky, 58 2d 294 Y. 2d 628 S. 1968), Ct. aff’d o. 63 Misc. 2d 312 N. Y. (Cty. b. S. 2d 951 Ct. A. Term aff’d 36 D. 318 (Sup. App. 1970), 2d N. Y. 2d 925 S. Div. (Sup. App. Ct. Secоnd Dept.)
We certain recognize that activities engaged minors are so potentially hazardous require the minor be held to an adult standard care. Driving a motor vehicle, motor boat operating hunting be so ordinarily However, classified. as to the activities men tioned, New law Jersey the minor must requires licensed and must first degree demonstrate the requisite adult competence. annotation, See of minor “Age operator of automobile or other vehicle or motor-powered craft аs his affecting primary A. R. contributory L. negligence,” 2d 872 (1964).
We find applicable care, standard of cor rectly charged by court, trial was that generally appli Bush v. & Co., cable minors. N. J. N. Y. Transit Cf. Inc., 30 N. J. 345, Gunther, Parker v. (1959). See Vt. A. 68, 164 2d (1960); Johnson’s v. Rutland Adm’rs o., R. R. C 93 Vt. A. 682 (1919). The required standard is that of reasonable like person of intel- age, like 42 Am. circumstances. ligence2 experience *6 Restatement, Torts 136 (1969); Jur. 142 at 2d, Infants, § of circumstances, Among 14 those (1965).3 283A at 2d, § the in activity the of the which nature course, would be minor was engaged. this standard of the which apply eаses
Most contributory negligence minor’s the concerned been a suggested It been has negligence. and not primary minor’s con well where the apply might different standard Schulman, “The Standard to others. See injury duct causes L. J. 619 Children,” 618, 37 Yale of of Care Required had occasion has previously While this Court (1928). held Division has Appellate the to consider this question, regarding enunciated Court this principles a child would also apply of negligence contributory involved. of a child is primary negligence case where thе Burch, J. 7-8 Super. Div.), 88 N. (App. Zuckerbrod that a rational 45 N. 593 We think certif. den. standard whether exists for same applying basis of contributory negligence issue involves question Moreover, hold child, otherwise negligence. or primary complicate further difficult area of tort already weigh situation heavily law. The practicalities annotation, L. R. favor standard. See A. single of a 872, supra. 2d charge 2Although omitted this case the word thereby intelligence, prejudiced defendant was we do not believe the charge light facts of case. of the whole and the in the charge objection omission, nor no based this There was supra, Super., Appellate Division it. See 134 N. J. did the notice
at 104. Restatement 3The Comment states the rule in has 283A age applied anyone over no but seldom been definite line can be drawn. Appellate Division, while it decided the case on the ground discussed, heretofore also criticized the trial court's application standard applicable to children to a 17- year-old person, out that pointing by N. J. S. A. 9:17B-1 et seq. 1973) (eff. January every person this State 18 or more years age is deemed to be an adult. The Ap Division pellate could little see sense in holding an 18-year- old one standard care and applying lesser standard to one age.
However, problem will exist no matter where drawn, line whether be at it or 18 years. Since somewhere, has to be drawn it it is not unreasonable to — fix legal it maturity now in this State — *7 those under and age capable that of holding negligence standard of the care of of reasonable person like age, intelligence experience under like circumstances. Prosser, Torés, at case, 154-157 Ed. (4 1971). This must decided on the law to the though, basis the prior effective date the cited no Although statute. there is decided case New at Jersey fixing the which age standard of controls, care children no governing longer years to be the which appear age person should responsibility be held to adult in tort matters. is Such — with criminal already the ease responsibility being criminal or at which anti-social behavior age person's as juvenile ceases to regarded delinquency is treated act, subject as a the processes criminal quasi-criminal to adults. N. J. normally See applicable and sanctions- S. A. N. J. 4-14). S. A. 2A:4-43 The trial (superceding therefore, jury as to the standard court, charged correctly defendant 17-year-old herein. of care applicable contention plaintiff’s consider that we Finally, of the evidence weight against verdict was jury conclu to the inescapable leads evidence uncontradicted Di- Appellate was negligent. defendant sion that of the on vision, disposed appeal since it other grounds, rule on this contention. We have reviewed the not proofs did to defendant’s question negli- conclude and that the verdict returned was not presented was gence the evidence. weight Division is reversed Appellate judgment court in favor defendant trial judgment reinstated. hereby The standard of care now
Schreiber., (dissenting). minors does square applicable generally made justify the рurported application charge nor its does reality, given.
I forth in the this case is set both context of The factual majority opinions. Conspicuous Division and Appellate court’s numerous however, charges are the trial absence, their care. In order chronological standard of defendant’s the jury: court instructed the trial intermittently, says concerned —18 far as one 18 is that as 1. law “The — de- younger same from him or her the don’t exact we expect gree that we from an adult. We of care we exact — anyone infant, that de- under 18 we exact call an which reasonably prudent gree care which similar circumstances. same or exercised under the would have *8 you, 17 was So, Allen on date as I said to Steven him of care old, the standard that from and the law exacts year circumstances.” the exercise old would degree a rea- of care which that he] claimed “exercised [Allen 2. person prudent sonably or should exercised.” would have 17- care as a he] claims “exercised reasonable [Defendant 3. year-old beginner skier.” — any beginner any year or skier or both like old 4. “Like 17-year-old beginning any skier.” might degree that applicable “that of care is] standard [The 5. beginner 17-year-old reasonably expected skier.” of a “Perhaps charge clearly 6. I thought didn’t I as I had charged duty year reference with to of a I the old. know 17-year-old beginner, I the term used and that lead' try straighten to Get out. some me it The confusion. law year imposes year old that standard of a 17 care that background experience year the this 17 old old with Hgher impose any any degree not It lower had. does of expected reasonably year can old care than with background experience respect the that Mr. Allen had [Emphasis supplied]. in this case.” last, The the majority accepts approves 6y number supplemental court’s which was the trial That charge. that Allen had exercise stated the same simply care as- This; someone of the same age, experience background. with standard equate does not charge adopted today by Allen must namely that act majority, accordance a reasonable conduct of the same intel- age, under the same ligence and circumstances. experience The the omission significance intelligence when one becomes charge apparent recognizes impor- tance of that factor in standard of fixing care. in this context relates mental Intelligence and judgmen- not tal but exercise capacity capacity. dis- of mental tinction between exercise or judgmental capacity itself points objective-subjective and the capacity ele- Restatement, Torts 2d, ments in the test. 283A, Comment batl5 defendant’s conduct is to be measured average the conduct usual 17-year-old having judgmental capacity. same The crucial element in determining standard care be established infants centers about the judgmental factor to comprehend, understand and capacity perceive risk Age, experience, еducation, and danger. social back- intellectual their capability have ground respective in the formation of places judgmental capability. Whether or should the infant should acted or reacted depends manner on whether certain the theoretical average same capacity infant having have acted or re- fashion. in the acted same *9 has stressed the factor. In judgmental capacity
Case law Smelowitz, J. Super. 17 N. (App. Hellstern that consideration Jayne out 1952), Judge pointed Div. child’s to understand “capacity to the must given in thе actual circum to which it is exposed avoid dangers When this Court investigation.” and situation under stances of care Bush v. problem, the infant standard last considered Co., Inc., 30 N. its J. v. N. Transit 345 (1959), Y. N. “problem capacity chil analysis upon focused Id. 352. to act negligently.” of tender dren Restatement, 283A, child’s 2d, Torts advocates that The § of a reasonable per- to that be compared acts omissions The intelligence.1 age, experience, of the same son Although the this rule. apparently adopted has majority experience, on its face view age, Restatement does not judg- to determine some elements simply intelligence b, it rec- Comment under mental discussion capacity, its de- factors to finder those analyze that the fact must ognizes asks whether Restatement judgmental capacity. termine capacity judgmental the same person that hypothetical The trial same manner. have acted or reacted de- reference any omitted supplemental charge court’s instruct clearly failed tо capacity fendant’s intellectual judgment measure defendant’s jury, ca- same intellectual with the 17-year-old of the average understood could not possibly pacity. adopting test which the Court subjective-objective the principle assuming even the correctness So day. conflicting several view the majority, adopted trial is warranted. new jury, given instructions 1The Restatement reads as follows: Children. A. child, standard of If the actor is conduct to which must he being negligent conform avoid that of a reasonablе experience age, intelligence, of like like circumstances.
II to Presumably majority the is the adhering principles Co., Inc., enunciated in Bush v. & N. Transit N. J. Y. We held supra. there that a re child seven was buttably to of presumed the incapable negligence issue not to was be submitted to the in absence jury the of evidence “from which the could infer that the child jury capable was avoiding understanding danger injury involved the circumstances case.” N. at 358. The party infant’s or con asserting the negligence tributory bore the burden nеgligence of proof. the norm
Under adopted day where the or negligence of an contributory negligence infant between ages issue, 18 is in his activity or is to inactivity be measured aby reasonable person same age, intelligence under similar experience circumstances unless activities so potentially “are hazardous toas the minor require be held to an adult standard care.” Ante 447. There are several inherent difficulties and inequitable conse- of this rule. quences
What criteria are
еmployed by
to ascertain
whether an activity
hazardous”?
“potentially
is
If
“po-
tentially hazardous” activity is one which results in serious
or
then
permanent
injury,
almost any activity might fall
within that category.
injured
who
has lost the
of an
from
eye
sight
carelessly
dart,
thrown
or
resulting
stone,
firecracker,
or
the death
caused
or
by
bicycle,
—
individual
seriously maimed due to an errant
skier
all are
indisputable proof
“potentially hazardous” ac-
tivity.
majority
no
prescribes
guideline
except
imply
that whenever
is
licensing
required,
“potentially hazar-
met.2 But
dous” test is
does
State
not impose
licens-
ten-speed
bike,
license is
2No
for motorized
but a
bike
pedaled
per
can be
at 25
on a
miles
hour
flat road. The U. S. Con-
Safety
reports
sumer Product
Commission
there are 500 to
500,000 permanently
crippled
year
1000 fatalities
about
each
bicycle mishaps.
from
all
hazardous” activities
“potentially
ing requirement
a license
not is
relevant
has
often not
and whether one
a reasonably prudent person.
conduct of
measuring
licensed, for example,
Whether the driver of a automobile
being
the automoble was
adjudicating
relevant in
if
not
In Charbonneau
in a
manner.
driven
reasonable prudent
New
84 N. H.
MacRury,
(1931),
A.
licensing
out that
pointed
Court
Hampshire Supreme
rule
“has
undertaken
deal
drivers
State
authorizes
expressly
impliedly
of care at all. It neither
de
ascertainable
legally
the trier
disregard
facts
of his reasonable
when material
the issue
fects of the actor
*11
The authorized
adult
a minor.
whether he be an
or
conduct,
of thе
not a
of the physical perfection
license is
certificate
minor.”
mental
of
maturity
eligible
adult or of the
the same irrespective
his
injured party,
To
loss
birth and it is inequitable
of
date of
wrongdoer’s
not
to exercise
expected
that minor should
unjust
reasonable and
mythical
prudent
of care as the
same degree
in
activities.3
least when engaged
adult
person,
imposi
sanctions the
unnecessarily
majority’s proposition
of
on innocent
tion
burden
hazards
young people’s
in activities
Whenеver
infant participates
victims.
held
normally engage,
which adults
infant should
hesi
of care. Other courts
not
to the adult standard
ma
do Minors
these activities are
participating
tated to
so.
physical capacity
ture
“discretion and
enough
possess the
responsibility
with .
.
of adult
.
the presumption
consistent
Lines,
129,
99
Nelson v. Arrowhead
Utah
Freight
. . . .”
Pearson,
also, Dellwo v.
225,
P.
228
See
(1940).
104
2d
op
107 N.
2d 859
boat
452,
(1961)
259 Minn.
W.
(motor
128,
Neumann v.
58 Misc. 2d
;
Shlansky,
eration)
acknowledged that “in some situations
a minor is
3Dean Shulman
twenty-one
fully
competent
over
and should be held
as
Shulman,
“The Standard of Care
to the same standard
conduct.”
Required
Children,”
(1928).
37 Yale L.
N. Y. S. 2d 628
Ct.
aff’d
(Cty.
1968),
o. b. 63 Misc. 2d
587, 312 N. Y. S. 2d 951
T.
(App.
mem.,
aff’d
1970),
D.A.
540,
2d
5Sullivan, Complete Family Skiing (1966). The Book of
sonably prudent and no person sound reason exists for not holding child defendant to the standard of the reason- James, Torts, ably adult. See 2 & prudent Law Harper at 16.8 927 (1956). § Ill contrary drawn 18-year-old today policies The line aspects enunciated in some regulating the legislature 16-year-old A conduct of minors relation to others. treason, homicide, a juvenile be an may tried adult will and violent offense aggressive, J.N. ful narcotics. manner, or for sale distribution a obtain special S. A. 2A :4-48. 16-1/2, person may At age may license a car driver’s learner’s to drive so permit A. N. J. S. J. A. at N. 39:3-13.1 age 17. S. obtained boat to operate 39:3-13.4. At 13 one be licensed age may N. A. 12:7-34.7. Under with an S. motor. J. outboard petition. file a verified may infant 17-year-old Court’s rules consonant line 18-year-old R. The 4:26-2(b). is presumed an infant law age the common rule Blackstone’s intent. criminal guilty capacity Restatement, 2d, Tоrts Commentaries, IV, Sec. 23. Bk. rule “has sel its to the fact 283A, a refers Comment and “is of sixteen” over anyone dom applied been years.” of tender to children commonly applied mental earlier line ignores demarcation 18-year from experts comments A few of young people. development point. behavior demonstrate field of child than his less educated mit him to think in cence at 412-413 Indeed, s|e * * * * symbols * * they in some Hodman [T]he sH (1973)] * * *. middle-years his areas, [in parents [L. Stone (2d % ever-broadening ways “Children Under ed. that сome to 1968)]. child [6 so be - fund Church, able to sh know plus] approximate placement Law,” child’s general Childhood think more great i}t growing Harv. those of adults. deal more than knowledge and Adoles- v rationally Ed. dividing mastery Rev. per- [*]
457 age eighteen minority legal status and adult between line simplistic” twenty-one years and ob is “artificial because it or among ages and children different dramatic differences scures the striking ob older children and adults. That similarities between question it and so sound obvious that raises servation seems — older also the between such differences resemblance how — [Skolnick, have come to be “The children adults obscured? Development Conceptions of Child Limits of Childhood: Social Contemp. Context,” (Symposium), Law & in Children and Law (1975)]. ob. Pr Selection of the 16th a more at which year reasonable be to an adult draw the line for the individual held standard of care of the activity. irrespective
IV I would over rule an infant adopt a that an be- be held to and that infant an standard of care adult rebuttably presumed tween 7 and 16 would be ages is, activity, adult act, in an that duty while engaged aas reason- normally usually engage, one in which adults adult that, a showing but upon ably prudent person, not war- activity capacity type for judgmental Restatement ranted, criteria subjective-objective of this majority applied.6 Application be adopted by and con- negligence difference between recognizes rule capacity judgmental tributory since the negligence others by created the hazards avoiding in foreseeing bе comprehended than substantially greater suggests has intended the been where harm Bohlen 6Professor exactly for his failure extent as held the same should “to infant upon obligatory are those of conduct which to conform to standards “Liability persons.” Per Infants and Insane in Torts of normal Proposal Note, (1924). sons,” “A L. Rev. See 23 Mich. Engaged in Adult Infant for the Modified Care Standard Activity,” Ind. L. J. 405 *14 one’s own acts.7 Burch, See Zuckerbrod v. 88 N. 1, Super. 8 (App. Div. 1965); Note, supra fn. 1962 Dulce L. J. at James, 142-143; Torts, & Harper Law supra, 16.8 1968); Roberts (Supp. Ring, 143 Minn. N. W. 437 (1919). If the 7 and ages infant between not been activity, in an adult found occupied the Restatement adopted rule would be majority ap plicable. As to I those or over would apply adult standard.
I would affirm Division. of the judgment Appellate For Hughes, reversal and reinstatement —Chief Justice Coneokd, Justices and Pashman and Judges Sullivan Kolovsky and Carton — 6.
For Schreiber — 1. affirmance —Justice supra 7Shulman, fn. 3 commented: The standard held of conduct to which an infant is to be when liability question quite may properly his own inis different from he is he which to be hеld when seeks to recover from an admittedly negligent apparent defendant. It con- that different types siderations be involved in these several cases. There policy strong protecting is á favor children from at- losses immaturity. quite plausible, tributable to their fore, It there- injuries for a court to be more lenient whose toward children attributable, only immaturity, are to their but also to conceded part defendant, tortious conduct on the than toward children responsible injury who are the sole causes [37 Yale others. L. J. at 619]. IN RE: ESTATE OF WIDENMEYER, EDWARD DECEASED. Argued April 26, 1976 Decided June 1976. notes the law’s