Mahon v. Heim
Mahon v. Heim
Opinion of the Court
The plaintiff, John J. Mahon, administrator of the estate of Richard Heim, brought this action seeking to recover damages for the death of Richard Heim, allegedly caused by the negligence of the defendants, his brother Timothy C. Heim, hereinafter called the defendant, and Marshall E. Heim, his father. In their answer the defendants denied being negligent and alleged contributory negligence on the part of the plaintiff’s decedent. The jury returned a verdict for the defendants, which the plaintiff moved to have set aside on the ground that it was contrary to law and against the evidence. From the court’s denial of the motion to set aside the verdict and from the judgment rendered thereon, the plaintiff has appealed to this court.
In his first two assignments of error, the plaintiff contends that the court erred in finding facts stated in eight paragraphs of the finding without evidence. Since these claims of error have not been briefed or argued, they are treated as abandoned. State v. Grayton, 163 Conn. 104, 109, 302 A.2d 246. The plaintiff’s remaining assignments of error attack the court’s instructions to the jury, including claims of error in the refusal of the court to charge as re
“Claims of error addressed to the charge are to be tested by the claims of proof as they appear in the finding. Practice Book §635; DePaola v. Seamour, 163 Conn. 246, 249, 303 A.2d 737.” Conlon v. G. Fox & Co., 165 Conn. 106, 328 A.2d 708. The following portions of the finding are pertinent to a consideration of the plaintiff’s attack on the charge: On August 6, 1970, the defendant, aged seventeen, Bichard Heim, aged sixteen, and a friend, John Warren, were going to pump water from Snipsic Lake into a milk tank truck in order to fill the Heim family swimming pool. The milk tank truck was owned by the defendant Marshall Heim, the father of the defendant and Bichard, and this was a procedure that the family had followed before. Bichard, accompanied by Warren, drove a pickup truck containing the pumping equipment to the lake shore. The defendant drove the tank truck and when he reached the entrance to a private road, it was his intention to turn the truck and back it down to the lake shore. The road to the lake shore was narrow and winding, and sloped downward. As the defendant backed the truck, he experienced some difficulty and Bichard came up to give him directions. As the truck continued backing, Bichard told him he was going to hit a tree. The defendant then stopped the truck, shifted into first gear and started forward but could not make headway up the hill; he then took his foot off the gas pedal, but before he was able to apply the brakes, the truck rolled back, pinning Bichard between the truck and a tree, causing fatal injuries.
In the course of its charge on negligence, the court stated: “As I recall, the evidence disclosed that Timothy was seventeen years old at the time of the accident, and his brother Richard was sixteen years old. Of course, one who has not reached his majority may be as capable as an adult, particularly when engaging in adult activities, such as the driving of a motor vehicle on or off a public highway. However, in the case of a boy you must remember that reasonable care is reasonable care for a young man of similar age, judgment and experience, under the circumstances, and you must take all of the circumstances into consideration.”
In so charging the jury the court correctly stated the settled law in this state as recently repeated in Overlock v. Ruedemann, 147 Conn. 649, 654, 165 A.2d 335, in which this court, speaking by Baldwin, C. J., noted that “in determining the negligence of a minor the law applies to him a standard of conduct which will vary according to his age, judgment and experience,” citing Rappa v. Connecticut Co., 96 Conn. 285, 286, 114 A. 81, Colligan v. Reilly, 129 Conn. 26, 29, 26 A.2d 231, and Magaraci v. Santa Marie, 130 Conn. 323, 330, 33 A.2d 424; see also Santor v. Balnis, 151 Conn. 434, 436, 199 A.2d 2;
While agreeing that the charge as given was that applicable in ordinary circumstances, in his request to charge, in his exception to the charge and in his brief the plaintiff has argued that the trial court committed error in not charging that the rule is otherwise with respect to minor operators of motor vehicles and that a minor engaging in such an adult activity as the operation of a motor vehicle should be held to the same standard of care as an adult. It is his contention that a minor’s conduct should be governed by the same standard as that of an adult whenever the minor undertakes an activity usually engaged in by adults and which could seriously endanger others and himself if the care exercised should fail to meet the standard of care which would be exercised by a reasonably prudent adult in the same or similar circumstances. Such a change in or exception to the settled common-law rule has been adopted with various modifications in some jurisdictions. See the annotation in 97 A.L.R.2d 872, and cases cited, and comment c in Eestatement (Second), 2 Torts § 283 A.
The adoption of such a new standard of care applicable to minors would effect a drastic change in
We note that the legislature has already addressed itself to some phases of the problem. The age of majority has been reduced to eighteen by § 1 of Public Act No. 127, adopted by the 1972 February Session of the General Assembly (General Statutes § 1-ld), which specifically provides that “any peison eighteen years of age or over shall be an adult for all purposes whatsoever and have the same legal capacity, rights, powers, privileges, duties, liabilities and responsibilities as persons heretofore had at twenty-one years of age, and ‘age of majority’ shall be deemed to be eighteen years.” On the other hand, in the field of statutory negligence where it is settled law that the violation of a statute is negligence per se the General Assembly has recognized the application of this legal principle to statutory violations by minors but has set the age of sixteen as the cutoff age for the application of the principle to the conduct of minors, leaving it as a question of fact whether a minor under sixteen years of age was in the exercise
As we have indicated, a strong policy argument can he advanced for the adoption of an exception to the standard of care applicable to the conduct of minors, which would hold them to the same standard of care required of adults, when they engage in certain specified activities which experience has demonstrated to be potentially highly hazardous not only to others but to themselves. Such activities might, for example, well include the operation of motor-driven vehicles and boats and the use of firearms and explosives. The adoption of such a policy and specific exception is, however, one peculiarly appropriate for further legislative consideration and action rather than for implementation by judicial fiat.
In this case, this attacked portion of the charge to the jury with respect to the standard to be applied to the conduct of the two minors involved in the accident under consideration was “correct in law, adapted to the issues and sufficient to guide the jury.” Moriarty v. Lippe, 162 Conn. 371, 389, 294 A.2d 326; Amato v. Sawicki, 159 Conn. 490, 494, 271 A.2d 80.
Another assignment of error pressed by the plaintiff is that the eourt erred in refusing to include in its charge two instructions which he had requested bearing on the issue of contributory negligence. The
The remaining assignments of error require but little discussion. One is that the court improperly stated to the jury that “[t]here are such things as pure accidents for which no one is to blame.” This statement was immediately followed by an instruction with respect to the burden of proof as to negligence and proximate cause. To make the comment was well within the court’s discretion in the circumstances of the case as disclosed by the finding. Robinson v. Faulkner, 163 Conn. 365, 370, 306 A.2d 857.
The final assignment of error is that the court erred in charging the jury with respect to certain
There is no error.
In this opinion Shapiro, Loiselle and MacDonald, Js., concurred.
“[General Statutes] See. 52-217. violation of statute by minor. In. all aetions for recovery of damages for injury to person or property, in which the plaintiff or defendant was a minor under sixteen years of age at the time sueh cause of action arose, it shall be a question of fact to be submitted to the judge or jury to determine whether or not such minor plaintiff or minor defendant was in the exercise of due care, when there is a violation of statutory duty by such plaintiff or defendant.”
Dissenting Opinion
(dissenting). I disagree and would reverse the judgment and order a new trial because the plaintiff’s request to charge which would have held the defendant, Timothy Heim, aged seventeen, to the standard of care of an adult should have been granted.
It is true that minors are entitled to be judged by standards commensurate with their age, experience and wisdom when engaged in activities appropriate to their age, experience and wisdom. Hence, when children are playing with toys, operating bicycles, or engaging in other childhood activities, their conduct should be judged by the rule of what is reasonable conduct under the circumstances, among which are the age, experience and wisdom of the minors involved. Grenier v. Glastonbury, 118 Conn. 477, 173 A. 160, and cases cited in the majority opinion. The question pressed here, however, is whether the leniency standard should apply when the minor is involved in activities normally undertaken by adults.
The majority has refrained from deciding the major issue in the belief that any decision concerning the standard of care applicable to a minor who engages in adult activity is for the legislature to make. While the legislature could act and might do so with more precision than a court, the primary responsibility of determining and applying the common law remains with the court. If the common law is to retain its vitality, this court must keep the common law responsive to the times. The relaxed standard of care generally applied to children is a common-law rule developed by the courts in the context of particular cases. In this state the rule was applied as early as the case of Birge v. Gardiner, 19 Conn. 507, 511, and the authority cited by the court for its
In the past decade or so, courts across the country have, in recognition of the dangers posed by motor vehicles, motorboats and airplanes, consistently held that minor operators of such mechanisms are subject to an adult standard of care. Jackson v. McCuiston, 247 Ark. 862, 448 S.W.2d 33; Harrelson v. Whitehead, 236 Ark. 325, 365 S.W.2d 868 (case of first impression); Prichard v. Veterans Cab Co., 63 Cal. 2d 727, 408 P.2d 360 (disapproving lower court decisions to the contrary); Wagner v. Shanks, 56 Del. 555, 194 A.2d 701; Medina v. McAllister, 202 So. 2d 755 (Fla.); Dawson v. Hoffmann, 43 Ill. App. 2d 17, 192 N.E.2d 695; Betzold v. Erickson, 35 Ill. App. 2d 203, 182 N.E.2d 342 (case of first impression) ; Dellwo v. Pearson, 259 Minn. 452, 107 N.W.2d 859; Wilson v. Shumate, 296 S.W.2d 72 (Mo.); Daniels v. Evans, 107 N.H. 407, 224 A.2d 63 (overruling Charbonneau v. MacRury, 84 N.H. 501, 153 A. 457); Karr v. McNeil, 92 Ohio App. 458, 110 N.E.2d 714; Neilsen v. Brown, 232 Ore. 426, 451, 374 P.2d 896 (“innovation on the law of Oregon”). The rule is also recognized in Restatement (Second), 2 Torts § 283 A, comment c, in 2 Harper & James, Torts § 16.8, p. 926, and in Prosser, Torts (4th Ed.) % 32, pp. 156-57; see note, 97 A.L.R.2d 872.
In addition to the foregoing policy reasons, there are existing statutes which indicate a legislative intent to hold all motor vehicle operators of at least sixteen years of age to an adult standard of care. Section 14-36 (a) of the General Statutes provides that a minor who is sixteen years of age or more can apply for a license to operate a motor vehicle, and § 14-36 (b), which provides for the testing of all applicants, makes no distinction between adults and minors. As all applicants must meet the same standards of competence and ability before obtaining a license, the legislature must have intended that all licensed drivers be held to the same standard of care. In this respect, our laws do not differ significantly from those of other states whose courts have concluded that where statutes make no specific exceptions for minor drivers, the statutes require an adult standard of care. See, e.g., Harrelson v. Whitehead, supra; Wagner v. Shanks, supra; Medina v.
The considerations which require a minor to adhere to an adult standard when driving a motor vehicle are also present when a minor flies an airplane, operates a motorboat, or while acting in an adult capacity conducts any other activity which would be dangerous to others unless done with prudent care. This is recognized in Eestatement (Second), 2 Torts § 283 A, comment c, which states that a minor is to be held to an adult standard whenever he engages in “an activity which is normally undertaken only by adults, and for which adult qualifications are required.”
To hold a minor to an adult standard, it is not necessary that he be on public property, for the extent of harm to others is not lessened by the circumstance of location. In Jackson v. McCuiston, 247 Ark. 862, 448 S.W.2d 33, a minor, fourteen years of age, who was operating a tractor-propelled stalk cutter on his father’s farm was held to an adult standard of care. Key considerations were that he was doing an adult’s job, that the job was dangerous, that he had been trained by his father to do the job
I conclude that to apply a more lenient standard to minors when they engage in such adult and potentially dangerous activities as the operation of an automobile or other motor-powered vehicles is unrealistic, contrary to legislative policy and inimical to public safety. In this ease, the nature of the activity engaged in required the operation of a large milk tank truck, the use of a pickup truck and the use of pumping equipment to pump water from the lake into the tank truck. This activity, involving the use of such vehicles and equipment, was clearly “an activity which is normally undertaken only by adults, and for which adult qualifications are required.” I conclude, therefore, that an adult standard of care was required of the defendant, Timothy Heim.
Reference
- Full Case Name
- John J. Mahon, Administrator (Estate of Richard Heim) v. Timothy C. Heim Et Al.
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- 8 cases
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- Published