Lead Opinion
Andrеw P. Hatch, a minor, suing through his father, Roddy J. Hatch, Jr., as next friend, and Roddy J. Hatch, Jr., individually, sued Michael O’Neill, a minor and three adults.
A motion for summary judgment was filed as to the minor, Michael O’Neill, on the ground that he was nine years of age at the time of the occurrence, and would not be liable for a tort under the provisions of Code § 105-1806.
The plaintiffs filled a response to the motion for summary judgment, asserting that Code § 105-1806 viоlates the due process clauses of the State and Federal Constitutions, and also contending that such Code section does not protect a minor under the age of 13 from a suit for damages for a wilful tort.
The trial judge granted the motion for summary judgment and dismissed Michael O’Neill as a party defendant. The appeal is from that judgment.
1. Code § 105-1806 prоvides: "Infancy is no defense to an action for a tort, provided the defendant has arrived at those years of discretion and accountability prescribed by this Code for criminal offenses.”
The appellants contend that this Code section, strictly contrued, does not prevent an action for tort against an infant under the age of criminаl responsibility, and means only that a minor over the age of criminal accountability can not claim any lesser standard of care in its conduct than that of an adult. The appellants also contend that this Code section should be construed with Code § 105-204, which provides: "Due care in a child of tender years is such care as its capaсity, mental and physical, fits it for exercising in the actual circumstances of the occasion and situation under investigation.”
Code § 105-1806, in identical language, appeared in the first Code of this state. Code of 1863, § 2996. At that time the age of criminal responsibility was 14, or before that age if the child knew the distinction between good and evil, but never under the age of 10. Code of 1863, §§ 4190, 4191. The present age of criminal responsibility is 13. Ga. L. 1968, pp. 1249, 1270 (Code Ann. § 26-701). In the Code of 1863, as in the present Code, the section which is now 105-1806 is in the Chapter listing defenses to torts.
Code § 105-204 first appeared in the Code of 1895 (§ 2901). It was codified from Western & A. R. v. Young,
There is little case law in Georgia construing the meaning of Code § 105-1806. In Central R. v. Brinson,
The Court of Appeals, in Brady v. Lewless,
It is our opinion that the Court of Appeals correctly interpreted the meaning of Code § 105-1806. Since this statute determines the policy of this state as to torts of minors under the age of criminal responsibility, it is immaterial what the rule is in other jurisdictions, or what the rule was at common law.
2. The appellants assert that Code § 105-1806 violates the due process clauses of the State and Federal Constitutions in that it deprivеs them of a property right without due process of law by barring them from the recovery of lawful damages from the minor child, regardless of his culpability, wanton act, and negligence, and regardless of any standard of care which could be imposed upon a minor of his age under similar circumstances, the severity and permanance of the injury inflicted, his resources to pay damages, and any other fact or circumstance.
The question of the immunity of an infant who is under the age of criminal responsibility from liability for torts is a reasonable subject for regulation by the legislative branch of government, and it is not a denial of due process of law to provide that no cause of action exists for torts committed by infants of such age.
The trial judge did not err in granting the motion for summary judgment and dismissing Michael O’Neill as a defendant.
Judgment affirmed.
Dissenting Opinion
dissenting. I cannot see the logical distinction in saying that the 9-year-old here involved is capable under the law of being guilty of contributory negligence to the extent that it could bar his recovery in a tort action, and at the same time holding that he cannot be guilty of some degree of actionable or primary negligence. See my dissent in Brady v. Lewless,
Dissenting Opinion
dissenting. This suit began when the appellants filed a complaint against Michael O’Neill, a nine-year-old minor, and three adults. The allegations indicated that the defendant fired a rock with a slingshot at a distance of some three feet from the head of the appellant, Andrew Hatch, striking Hatch’s eye and causing him to lose the eye. Upon motion of the defendant minor, the trial court granted summary judgment on his behalf upon the ground that Code § 105-1806 provided immunity from suit in tort for minors under the age of criminal responsibility, which, as set forth in Cоde Ann. § 26-701, is thirteen. The central issue on appeal is whether under Georgia law an infant under the age of criminal responsibility is immune from tort liability.
The majority of this court has construed Code § 105-1806 to grant such immunity, and in doing so has followed the construction placed upon the statute by the Court of Appeals of Georgia in Brady v. Lewless,
By an Act of the General Assembly, assented to December 9, 1858, provision was made for the election of three commissioners, "to prepare for the people of Georgia a Cоde, which would as near as practicable, embrace in condensed form, the laws of Georgia, whether derived from the common law, the Constitutions, the statutes of the State, the decisions of the Supreme Court, or the Statutes of England, of force in this State.” Ga. L. 1858, p. 95. Code § 105-1806 first appeared in the 1861 Code of Georgia in § 2996 in the same language as it reads today: "Infancy is no defense to an action for a tort, provided the defendant has arrived at those years of discretion and accountability prescribed by this Code for
In considering the meaning of these various provisions, inquiry must be made into the common law and the codified law prevailing at that time. No issue is taken with the exаct meaning of the provisions of the penal law as of 1861. In the case of Ford v. State,
At common law, cases in which minors were sued for their torts were very rare. Sir Percy Winfield has suggested that the reason for the dearth of such cases was because minors were often not worth suing. Winfield, The Law of Tort, 96, 97 (2d Ed.). See also Stone, Liability for Damage Caused by Minors: A Comparative Study, 5 Ala. L. Rev. 1, 24. As a result the law of infant liability was slow in developing. Blackstone, in his commentaries, discusses infant liability in contract law but completely omits a parallel discussion in the area of torts. In criminal cases the common law rested its presumptions concerning children upon Biblically-sanctionеd multiples of seven. Thus, below the age of seven a child was conclusively presumed incapable of committing a felony, while between the ages of seven and fourteen, the presumption was rebuttable. At and after the age of fourteen the presumption became conclusive that the child was capable of committing a сrime, and he was subject to suffer conviction and penalties as an adult, even including capital punishment. Cooley’s Blackstone, Vol. 1, p. 465. See also, McRae v. State,
So it was with infant tort liability. Infants were liable for their torts at common law. In Jennings v. Rundаll, 8 T. R. 335, 337 (101 Eng. Rep. 1419), Lord Kenyon said, "If an infant commit an assault, or utter slander, God forbid that he should not be answerable for it in a court of justice.” See Holmes, The Common Law, p. 87; Landon, Pollock on Torts, p. 47; and Prosser, Torts, (3d Ed.) p. 1024, § 128. Pollock noted that at common law "an infant is certainly liable for all wrongs of omission as well as of commission in matters where he wаs, in the common phrase, old enough to know better.” Landon, Pollock on Torts, supra, p. 47.
It is of significance that the law of torts as it prevailed in 1861 had not then attained its full flowering. The modern law of negligence was still in its infancy, and the few cases at common law dealing with infant tort liability were based upon prevailing concepts of fault, moral сulpability, and deterrence of the wrongdoer. The early cases, therefore, all dealt with intentional wrongs. See Jennings v. Rundall, supra; Bullock v. Babcock,
It is unnecessary to trace the history of tort liability here, its progression from concepts of trespass, with its notions оf intent and moral responsibility, to negligence to the present law of strict liability in tort. See Gregory, Trespass to Negligence to Absolute Liability, 37 Va. L. Rev. 359; Edgerton, Negligence, Inadvertence, and Indifference; The Relation of Mental States to Negligence, 39 Harv. L. Rev. 849; and, Maitland, The Forms of Action at Common Law, pp. 65-68, 90. The point I am trying to make is that in 1861, against the backdrop of infant liability for tort as prevailed at common law, the concept of fault, upon which the codifiers drew up the Code of Georgia, was one which did not include modern concepts of negligence. Tort liability was, like the criminal law, based upon moral responsibility, the ability of an individual to recognize the mоral consequences of his own act and to will the consequences of such act.
Additionally, Code § 105-1806 was written into law without regard to the modern law of negligenсe. The statute by its terms does not bar actions against infants based on negligence. The General Assembly in 1895 impliedly recognized that infants could commit torts of negligence when it enacted present Code § 105-204, which provides: "Due care in a child of tender years is such care as its capacity, mental and physical, fits it for exercising in the actuаl circumstances of the occasion and situation under investigation.” The inconsistent rule by which this provision has been applied only in cases of an infant’s contributory negligence has been treated at length by Mr. Justice Jordan in his dissenting opinion in Brady v. Lewless,
In addition, the rule here announced, that infants under the age of criminal responsibility are immune from tort liability, though their contributory negligenсe may be used in mitigation of damage claims, is directly in conflict with modern trends in tort law which has seen the slow demise of contributory negligence in favor of absolute liability or full compensation for harms done, as in modern workmen’s compensation and products liability law. See James, The Qualities of the Reasonable Man in Negligence Cases, 16 Missouri L. Rev. 1; James and Dickson, Accident Proneness and Accident Law 63, Harv. L. Rev. 769; and also Fletcher, Fairness and Utility in Tort Theory, 85 Harv. L. Rev. 537.
Finally, the aims of modern tort law, compensation of innocent victims of wrongs and distribution of loss, are furthered by the advent of accident liability insurance. The impact of insurance has been felt with respect to minors, е.g., with infant drivers where the loss is covered by reason of omnibus coverage clauses in policies of others (generally parents) and distributed among the insured motoring public. It has been indicated that in such cases the central factor considered in determining infant liability has not been the penalty or burden upon children, for such was non-existent, but rathеr "the extent to which the motoring public and its beneficiaries ought to compensate those who are injured by the very serious extra accident hazard created by the youthful driver.” James, Accident Liability Reconsidered: The Impact of Liability Insurance, 57 Yale L. J. 549, 555. This same reasoning applies to tort liability of infants with respect to activities оther than driving a car, where the penalty or burden on the child also is non-existent, and where the loss to the injured may be borne by insurance purchased by parents of the infant tortfeasor, such as in broad homeowner policies.
Thus, by reason of the foregoing, I believe this statute (Code § 105-1806) should not be construed by this court as a grant of
I am authorized to state that Justice Gunter concurs in this dissent.