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July 23, 1990.

JEREMY HONEYCUTT, a minor, by and through his Guardian, DANIEL H. PHILLIPS, Appellee,

The opinion of the court was delivered by

[247 Kan. 251]


This is an interlocutory appeal from an order of the Sedgwick County District Court, finding as a matter of law that the six-year-old plaintiff, Jeremy Honeycutt, could not be comparatively at fault because of his age and granting partial summary judgment. Defendants, the City of Wichita, U.S.D. No. 259, Union Pacific Railroad Corporation, and Missouri Pacific Railroad Co., appeal.

The issue for our decision is whether the negligence of a young child is a question of fact or whether a child below a certain age is incapable of negligence as a matter of law. If the latter, then at what age does the negligence of a person become a question of fact?

  The facts, so far as they were developed and presented to the judge at the time of his decision, were as follows: Jeremy Honeycutt was six years and four months of age when his legs were severed by a moving train at a railroad crossing on his path home from school. Jeremy had been running alongside the moving train, trying to touch it or get on it, despite warnings from his family and teachers to stay away from trains and follow the directions of his school safety patrol.

  Jeremy filed suit through his guardian, Daniel H. Phillips, against the city, the school district, and the railroads. He then filed a motion for partial summary judgment, asking the court to hold as a matter of law that he could not be comparatively at fault because of his age. His motion was granted by the trial court, and the Court of Appeals granted defendants' petition for an interlocutory appeal. We ordered the case transferred to this court pursuant to K.S.A. 20-3018(c).


  Summary judgment is only proper on a genuine question of law not subject to factual dispute. See Ruebke v. Globe Communications Corp., 241 Kan. 595, 605, 738 P.2d 1246 (1987). The presence or absence of negligence is ordinarily a question of fact for the jury, rather than one for judicial resolution by summary judgment. See Phillips v. Carson, 240 Kan. 462, 472, 731 P.2d 820 (1987).

  Whether a child can be held to some standard of care is purely a question of law. The use of summary judgment procedure here was therefore appropriate.

[247 Kan. 252]



  Before examining Kansas case law, let us determine what the current law is in those jurisdictions which have specifically addressed the issues.

  Some states hold that a child under seven is not capable of negligence as a matter of law. This is known as the "Illinois rule." See Toney v. Mazariegos, 166 Ill. App.3d 399, 519 N.E.2d 1035 (1988). Other courts> follow the "Massachusetts rule" and hold that a minor's capability for negligence is a question of fact. See, e.g., Peterson v. Taylor, 316 N.W.2d 869 (Iowa 1982). These courts> generally hold that a particular minor's capacity for negligence may be determined by the trial court as a matter of law only if the child is so young or the evidence of incapacity is so overwhelming that reasonable minds could not differ on the matter. For example, the Nevada Supreme Court in Quillian v. Mathews, 86 Nev. 200, 203, 467 P.2d 111 (1970), noted that the "numerical weight of authority appears to favor" a rule that a minor's negligence is a fact question and held the trial court did not err in submitting the question of negligence of a six-year-old to the jury. The court rejected the defendant's contention that a six-year-old cannot be negligent as a matter of law, stating:
"We prefer to treat the issue of contributory negligence of a child as a fact issue for the jury upon proper instructions unless reasonable minds could come to but one conclusion from the evidence. This allows for a degree of flexibility in the handling of each case as it comes before the trial court. That court may decide initially whether reasonable minds could believe that the particular child has the capacity to exercise that degree of care expected of children of the same age, experience and intelligence in similar circumstances. Should the court determine that the child has such capacity, the jury then is to decide whether such care was exercised in the particular case. Should the court rule otherwise, then, of course, the issue of contributory fault would not be submitted for jury resolution. This procedure was followed in the case at hand, and we approve it. The evidence supports the court's conclusion that the plaintiff-child possessed the capacity of a normal six-year-old." 86 Nev. at 203.
  Other courts> hold that a child may be held incapable of negligence as a matter of law, but only at some unstated age or at an age younger than seven (typically, below the age of five). See, e.g., Taylor v. Armiger, 277 Md. 638, 358 A.2d 883 (1976) (five-year-old child may not be held not guilty of contributory negligence

[247 Kan. 253]

      as a matter of law; issue one of fact for the jury — court dicta speaks of cutoff of three years of age).

  Finally, some courts> hold that a child is only rebuttably presumed incapable of negligence as a matter of law. See, e.g., Patterson v. Cushman, 394 P.2d 657 (Alaska 1964) (child under seven rebuttably presumed incapable of negligence; where evidence showed six-year-old capable of some care, issue one of fact for the jury).

  For listings of cases from different jurisdictions, see 2A Personal Injury, Children §§ 4.02, 8.01 (Frumer & Friedman ed. 1989); Prosser and Keeton, The Law of Torts § 32, pp. 179-82 (5th ed. 1984 & 1988 Supp.); Annot., Modern Trends as to Contributory Negligence of Children, 32 A.L.R. 4th 56.


  The modern trend in the law appears to be to allow a jury to evaluate the negligence of a minor plaintiff based on a child's standard of care. See, e.g., Peterson v. Taylor, 316 N.W.2d at 872; 2A Personal Injury, Children § 4.02; Annot., 32 A.L.R.4th 56; Annot., Modern Trends as to Tort Liability of Child of Tender Years, 27 A.L.R.4th 15; Annot., Railroad's Liability for Injury to or Death of Child on Moving Train Other than as Paying or Proper Passenger, 35 A.L.R.3d 9; Comment, Capacity of Minors to be Chargeable with Negligence and Their Standard of Care, 57 Neb. L. Rev. 763, 767 (1978).

  Professor Keeton, in Prosser and Keeton, The Law of Torts § 32, pp. 179-81 states:

  "The standard which is ordinarily applied, and which is customarily given to the jury, is to measure the child's conduct against what would be reasonable to expect of a `child of like age, intelligence and experience.' "Most courts> have attempted to fix a minimum age, below which the child is held to be incapable of all negligence. Although other limits have been set, those most commonly accepted are taken over from the arbitrary rules of the criminal law, as to the age at which children are capable of crime. Below the age of seven, about a dozen states hold that the child is arbitrarily considered incapable of any intelligence. Between seven and fourteen, a number of courts> hold that the child is presumed to be incapable, but may be shown to be capable; and that, from fourteen to majority, he is presumed to be capable, but that the contrary may be shown. These multiples of seven are derived originally from the Bible, which is a poor reason for such arbitrary limits; and the analogy of criminal law is certainly of dubious value

[247 Kan. 254]

      where neither crime nor intent is in question. Other courts> have rejected any such fixed and arbitrary rules of delimitation, and have held that children well under the age of seven can be capable of some negligent conduct. Undoubtedly there is an irreducible minimum, probably somewhere in the neighborhood of four years of age, but it arguably ought not to be fixed by rules laid down in advance without regard to the particular case."

  As early as 1936, the Minnesota Supreme Court gave a good explanation of the reasoning behind the modern trend:
"Under the so-called Illinois rule (which is analogous to the common law rule with respect to the nonresponsibility of such young children for criminal acts), it is held that a child under seven is incapable of contributory negligence. [Citations omitted.] This rule has the merit of being easy to apply. However, it is arbitrary and always open to the objection that one day's difference in age should not be the dividing line as to whether a child is capable of negligence or not. Courts> following the Massachusetts rule hold that the question of contributory negligence of a child under seven years of age is for the jury under proper instructions. [Citations omitted.]
. . . .
"Under a proper instruction the Massachusetts rule is the more sound and the one most likely to insure just result. It does not cast upon the general public any and all risks that may be created by the carelessness of a child. Still it does not go so far as to hold a child to a degree of care not commensurate with its age and experience. . . . There is much opportunity for [the child] to observe and thus become cognizant of the necessity for exercising some degree of care. Compulsory school attendance, the radio, the movies, and traffic conditions all tend to have this effect. Under the Illinois rule a child may be guilty of the most flagrant violation of duty and still not be precluded from recovering damages for injuries suffered partly because of such violation. . . . The Illinois rule has no basis in sound reason or logic. It is based upon an outworn ...

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