When we first heard of the wintry theme of this month's Bar Bulletin, a Washington Supreme Court case quickly came to mind - a case combining winter fun, snowmobiles, a hint of tragedy, and the somewhat oxymoronic concept of the reasonable child. It was a case from some 35 years ago that had been featured in a torts class that we taught last year at Seattle University School of Law; a case that purports to explain what kind of reasonableness the law expects of a child and when.
The case is Robinson v. Lindsay, and according to the Court, it presented a single issue: "whether a minor operating a snowmobile is to be held to an adult standard of care."1 The facts of the case depict a fairly typical winter scene. The plaintiff, Kelly Robinson, had "cajoled" her parents into letting her go along on a snowmobile outing in the mountains.2 Observed by his mother, 13-year-old Billy Anderson decided to pull the other children on an inner tube attached to a snowmobile by a rope. "While engaging in this activity, Kelly Robinson's thumb was caught in the tow rope and severed." Through quick action and excellent medical care, "the thumb was reattached and, although not fully functional, is at least present."3
The jury ended up ruling in favor of Billy, after having been instructed to decide if he had exercised "the same care that a reasonably careful child of the same age, intelligence, maturity, training, and experience would exercise under the same or similar circumstances."4 The plaintiffs objected to this instruction and, after the verdict had issued, convinced the trial court to grant a new trial on grounds that the jury should have been instructed as to the adult standard of care.
In holding that the trial court had been correct to grant a new trial, the Washington Supreme Court made the requisite reference to the old English case of Vaughan v. Menlove and its having been the first to adopt "reasonable man of ordinary prudence" as the test of negligence. This case is famous - and amusingly so - for having rejected the defendant's argument that it was unfair to hold him "responsible for the misfortune of not possessing the highest order of intelligence."5
Vaughan v. Menlove is helpful in explaining the reasonable person standard because most students instinctively understand that a self-serving claim of stupidity should not serve as a shield from liability for carelessly causing harm. What students tend to think unfair, though, is the idea that a person could be held liable, despite doing their best to avoid causing harm, but failing to do so in a way that falls short of a reasonable person's performance. It is for that reason that the reasonable child standard, and the exception to that standard created in the snowmobile case, proved to be so confounding for our students.
As the Court in Robinson explained, courts had historically "found it necessary, as a practical matter, to depart considerably from the objective standard [of the reasonable person test] when dealing with children's behavior. Children are traditionally encouraged to pursue childhood activities without the same burdens."
And yet, what could be more of a childhood activity than delightedly playing in the snow? Should not Billy Anderson get the benefit of the sliding-scale standard in deciding whether he is liable for having caused poor Kelly to lose the use of her thumb?
Indeed, as the Court considers this question, it seems at first to be sympathetic to Billy's situation, quoting another old case (this one from Washington) that stated, "it would be a monstrous doctrine to hold that a child of inexperience - and experience can only come with years - should be held to the same degree of care in avoiding danger as a person of mature years and accumulated experience."6
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