Camerlinck v. Thomas
209 Neb. 843, 312 N.W.2d 260, 27 A.L.R. 4th 1 (1981)
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Rule of Law:
A child's conduct, to avoid being negligent, is judged by the standard of a reasonable person of like age, intelligence, and experience under similar circumstances. There is no arbitrary minimum age below which a child is incapable of negligence as a matter of law.
Facts:
- Byron J. Thomas (Jay), aged 6 years and 1 month, was playing on a playground slide while holding a stick.
- Robert W. Camerlinck (Bobby), aged 4.5 years, was standing near the bottom of the slide.
- As Jay neared the bottom of the slide, he called out to Bobby.
- When Bobby turned in response, Jay struck him in the left eye with the stick.
- The blow pierced Bobby's eyeball, causing a laceration, a prolapsed iris, and permanent loss of vision.
- Jay had completed one year of school with at least average performance.
- Jay's mother, Ann J. Thomas, permitted him to walk home from school alone and play in the park unsupervised, believing him mature enough to care for himself.
- Ms. Thomas had previously cautioned Jay against throwing things in the direction of other children's faces, and she believed he understood her warnings.
Procedural Posture:
- Robert Camerlinck, on behalf of his son Bobby, sued Ann J. Thomas in a Nebraska trial court to recover damages for Bobby's eye injury.
- At the close of the plaintiff's evidence during the trial, the defendant moved for a directed verdict.
- The trial court granted the defendant's motion and dismissed the plaintiff's petition.
- The trial court's dismissal was based on its ruling that the defendant's son, Jay, was incapable of actionable negligence as a matter of law because he was a child of 'tender years'.
- The plaintiff, Robert Camerlinck, appealed the trial court's dismissal to the Supreme Court of Nebraska.
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Issue:
Is a child who is six years of age incapable of negligence as a matter of law solely due to their age?
Opinions:
Majority - Brodkey, J.
No. A child of six is not incapable of negligence as a matter of law based on age alone; rather, the question of a child's negligence is a question of fact for the jury based on the child's specific circumstances. The court rejected the minority rule which sets an arbitrary age (often seven) below which a child is deemed incapable of negligence. Instead, the court adopted the standard from the Restatement (Second) of Torts § 283 A, which holds that a child's conduct must be judged against that of a reasonable person of like age, intelligence, and experience. The court reasoned that this standard is more flexible and realistic than a fixed age rule, as it accounts for the wide variation in children's capacities. Applying this standard, the court found sufficient evidence—including Jay's school attendance, his mother's belief in his maturity, and her specific safety warnings to him—to present a jury question regarding his capacity for negligence.
Dissenting - Clinton, J.
The dissent did not provide a written opinion.
Analysis:
This decision officially aligns Nebraska with the majority of jurisdictions by rejecting the arbitrary 'rule of sevens' for child negligence and adopting the more flexible standard from the Restatement (Second) of Torts. The ruling fundamentally shifts the determination of a young child's capacity for negligence from a question of law for a judge to a question of fact for a jury. Consequently, it will be more difficult for defendants in cases involving torts by young children to win on a directed verdict or motion to dismiss. This precedent requires courts to consider evidence of a specific child's age, intelligence, and experience, making the outcome of such cases more dependent on factual findings by the jury.
