Nielsen ex rel. C.N. v. Wade ex rel. B.B.
370 P.3d 925, 2016 Utah LEXIS 36, 2016 UT 14 (2016)
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Rule of Law:
Under Utah common law, children under the age of five are conclusively presumed to be incapable of negligence as a matter of law.
Facts:
- Ms. Nielsen was babysitting a boy who was four years and nine months old.
- Ms. Nielsen had previously received a cornea transplant in one of her eyes.
- While being babysat, the boy threw a toy rubber dolphin at Ms. Nielsen.
- The toy struck Ms. Nielsen in the eye that had the prior transplant.
- As a result of the impact, Ms. Nielsen lost all vision in that eye.
Procedural Posture:
- Ms. Nielsen sued the four-year-old boy for negligence and his parents for negligent supervision in a state district court (trial court).
- The defendants filed a motion for summary judgment on both claims.
- Ms. Nielsen conceded that she had no evidence to support the negligent supervision claim against the parents.
- The district court granted summary judgment for the parents but denied summary judgment for the child, ruling that a four-year-old could be found capable of negligence.
- The Utah Supreme Court granted the defendant child's petition for an interlocutory review of the district court's denial of summary judgment.
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Issue:
Under Utah common law, is a child under the age of five conclusively presumed to be incapable of negligence?
Opinions:
Majority - Justice Durham
Yes. A child less than five years of age is incapable of negligence. The court rejected the 'Illinois rule' (a conclusive presumption against negligence for children under seven) as non-binding dicta in prior Utah cases. While precedent has treated the capacity of five and six-year-olds as a jury question, the court found a historical dividing line in 'Herald v. Smith', which held a child just under five could not be contributorily negligent as a matter of law. This aligns with the Restatement (Third) of Torts, which establishes a bright-line rule at age five. The court justified this rule on policy grounds, reasoning that children under five lack the capacity to appreciate risk, have inadequate impulse control, cannot be deterred by tort rules, and should not be subjected to the judicial process. This bright-line rule provides uniformity, consistency, and efficiency, outweighing the social costs of an individualized inquiry.
Dissenting - Associate Chief Justice Lee
No. A categorical cutoff at age five is based on outdated 'armchair assessments' of child psychology rather than modern science. The dissent argues that cognitive psychology shows children begin developing executive functions like planning and impulse control as early as age three, with wide variations in development. Instead of a hard cutoff at five, the dissent proposes a tiered framework: (1) conclusive immunity for children under three; (2) a rebuttable presumption of incapacity for children between three and seven, which a plaintiff could overcome with expert testimony; and (3) a standard reasonable child test for those eight and older. The dissent also criticizes the majority's rule as shortsighted because it prevents any allocation of fault to a child plaintiff under five, forcing a defendant who may be only minimally at fault to bear 100% of the liability.
Analysis:
This decision establishes a clear, bright-line rule for child negligence in Utah, resolving what was previously an ad hoc approach and aligning the state with the Restatement (Third) of Torts. By creating a conclusive presumption of incapacity for children under five, the court simplifies litigation involving very young children and provides certainty for future cases. This rule prevents fact-intensive, and potentially unseemly, inquiries into a specific young child's maturity and understanding. However, as the dissent highlights, this bright-line rule forecloses all negligence claims against children under five, regardless of individual development, and significantly impacts comparative fault analyses in cases where a child under five is the plaintiff.
