The opinion of the court was delivered by
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: SCOPE OF REVIEW
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
LAW FROM OTHER JURISDICTIONS
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
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
"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
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
(five-year-old child may not be held not guilty of contributory
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
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.
MODERN TREND ON THE ISSUE
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
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.
. . . .
"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 ...