No. 12683 INTHE SUPREME COURT OF THE STATE OF MONTANA 1975

JERRY RANARD, a minor, by and through his Guardian, CarlM. Ranard, Plaintiff and Appellant,

-vs

# - KATHY O'NEIL, Defendant and Respondent.

Appeal from: District Court of the FirstJudicial District, Honorable Gordon R. Bennett, Judge presiding. Counsel of Record: ForAppellant

### : Patrick F. Hooks argued, Townsend, Montana Smith and Harper, Helena, Montana Charles A. Smith 111, appeared, Helena, Montana For Respondent: Gough, Booth, Shanahan and Johnson, Helena,

Montana Ronald F. Waterman argued, Helena, Montana

Filed: Submitted: January 16, 197 5 Decided: 

### FEB 1 0

### 1975

ClerkMr. ~ustice Frank 

### I. Haswell delivered the Opinion of the Court.

This isan appeal from a summary judgment granted defendant ina personal injury action in the district court, Lewis and Clark County. The district court held: 

### "*

# *

# * the defendant, Kathy O'Neil, isentitled to summary judgment, asa matter of law, finding that plaintiff, Jerry Ranard, was guilty of contributory negligence as a matter of 12w and defendant Kathy OrNeilhad no 'last clear chance' as a matter of law". The summary judgment was granted on the pleadings, answers to interrogatories by both parties, and a deposition of plaintiff. These documents disclose that, on December 

### 7, 1972, plaintiff was struck and injured by an automobile drivenby defendant. The indident occurred on a Helena city street at approximately 9:00 p.m. The street was snow packed and icy; itwas illuminated by street lights

# . Plaintiff, whose eighth birthday was on the day following the accident, was on hisway home from a boxing lesson. His instructor had driven plaintiff and hisbrother to the street in front of their home, double-parking across from their home. The brother, who was

a year older than plaintiff, ran across the street, followed almost immediately by the younger boy. Asplaintiff reached the middle of the street, he saw defendant's headlights, stopped, and then ran in an attempt to avoid being struck. Defendant, upon seeing the boy, applied her brakes but

was unable toavoid hittinghim. Plaintiff was hospitalized for severalweeks and continued towear a cast on hisbroken right leg for some time thereafter. Plaintiff, in a deposition taken some eight and one half months after the accident, admitted that he had not looked before he ran into the path of defendant's vehicle. Although he admitted that he knew he should check for traffic, he said that he had just forgotten.Although the details arenot clear, plaintiff did admit to having received some instruction on pedestrian safety, including the traditional stop, look and listen. He could not recallwhere he had received it, or preciselywhen it was taught. The complaint alleged that plaintiff's injurieswere proximately caused by defendant's negligent operation of her automobile. The answer denied that allegation and affirmatively alleged that plaintiff's own negligence was the proximate cause of his injury. It also alleged that plaintiff had knowingly assumed the risk of injury and, ina later amendment, that defendant had been confronted with a sudden emergency. Following discovery, the district court granted defendant's motion for summary judgment, on the grounds stated in the order quoted atthe beginning of this opinion. Plaintiff appeals from thatjudgment, alleging the district court erred in granting the motion. The rule governing summary judgments 

### is Rule 56, M.R.Civ.P., which provides inpertinent part: "(c) 

# *

# ** The judgment sought shallbe rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file show that there isno genuine issue as toany material fact and that the moving party 

### is entitled toa judgment as a matter of law. II Defendant, the moving party, has theburden of establishing the absence of any issues of material fact and that she isentitled tojudgment as a matter of law. See, e.g. Meech v. Cure, 

# - Mont

# .

, 525 P.2d 

### 546, 31 St.Rep. 637; Beierle 

### v. Taylor, 

# - Mont

# .

, 524 P.2d 783, 31 St.Rep. 554. With these considerations inmind, we turn to the particular questions raised by this appeal. They are: (1) Did the plaintiff have the capacity tobe contributorily negligent? (2) If so, was plaintiff contributorilynegligent under the factshere?

### (3) Was the plaintiff contributorilynegligent asa matter of law because of violation of statutoryrequirements governing pedestrian conduct? 

### Atthe outset, we observe that the district court had nothing but the cold record upon which tobase itsdecision--the same record which isbefore us for review. In particular, the district court was not aided in 

### itsassessment of plaintiff's capacityby an opportunity toview his demeanor incourt, since he did not appear. Our treatment of the first two issues 

### is guided by two Montana

cases: Lesage v. Largey Lumber Co., 99 Mont. 372, 383, 43 P.2d 896; and Graham v. Rolandson, 150Mont. 270, 277, 435 P.2d 263. Both dealwith alleged contributory negligence by boys between eight and nine years old. In Lesage the plaintiff, a boy aged eight years and nine months,

was struckby an automobile ashe played football in a city street. The plaintiff admitted that he had not seen the car that struckhim, but could have if he had looked. There was testimony that plaintiff

ran in front of the carwhen itwas ata distance of only ten or twelve feet. The jury returned a verdict in favor of the plaintiff and defendant appealed claiming that the district court should either have nonsuited the plaintiff or directed a verdict that plaintiff was contributorilynegligent asa matter of law. This Court affirmed, finding evidence sufficient tojustify 

### a verdict for the plaintiff. The following testwas suggested inLesage for the determination of contributory negligence by a minor over the age of seven: "Did he or did he not exercise the degree of care that can ordinarilybe expected of children of the same age, taking intoconsideration their experience, intelligence and capabilities?" The test was recognized as one which ordinarily should be submitted to thejury. In Graham, an eight and one-half year old boy was killedwhen struckby an automobile while riding hisbicycle on a city street. The only eyewitness who testifiedwas the defendant, whose version of the eventswas found tobe so inconsistent as towarrant little

### credence. The relevant issuewas whether ornot the district cnurt erred ininstructing thejury the plaintiff was incapable of contributory negligence as a matter of law. In Graham, this Court set fortha further test for determination of a child's contributorynegligence. A 

### dual inquiry 

### is required covering: 

### "(1) The ca acit of a particular child ina given 

### I+- case to e contributorily negligent; and 

### (2) the establishment in fact of the particular child's contributorynegligence under the circumstances of a given case.11 

### Applying the firstpart of the test, we held that reasonable

men could differ as toplaintiff's capacity tobe contributorily negligent, and the district court had erred inremoving that consideration from thejury. The evidence showed only the boy's age, his grade in school, his abilitytoride a bicycle, and his residence in the immediate neighborhood of 

### the accident. The rules established by Lesage and Graham indicate 

### a subjective standard. Each case must be measured by 

### its own facts, and the considerations required aredifficult to summarize in 

### a general rule. In this context, thecapacity of 

### a particular child is

### his abilitytoappreciate the danger, either tohimself or others, of the act alleged tobe negligent. That capacity is 

### determined by his age, experience, intelligence and capabilities. His negligence in fact can only be determined by finding a failure toconform his conduct toa standard of carewhich he can reasonably observe, given the limitations of his capacity. In the instant case, plaintiff's responses to the questions recorded in hisdeposition are commonly phrased in a singleword. While thismight be typical for a child of his age, when subjected toan unfamiliar deposition process, it 

### says littleornothing about his intelligence. There is

### evidence of plaintiff's experience

# -- he attended school and was instructed incertain rules of safety for pedestrians. Plaintiff could not remember when the instructionwas received, where it

### was received, nor its 

### intensity. We

### are presented with, 

### some evidence of experience,but the remainderan only be assumed / 

### by comparison with others in his age group. Finally, there is little evidence of plaintiff's capabilities. Related to intelligence, this attribute would determine whether plaintiff was likely to forget instruction received in pedestrian safety; whether he was self-reliant or tended to rely on his older brother's judgment,e.g. in the context of relying on his older brother's decision to cross the street; what his attention span was; and many other relevant considerations, too numerous to detail here.The record contains insufficient evidence to support a finding that plaintiff had the capacity for contributorynegligence as a matter of law. This precludes summary judgment. plaintiff's actions cannot be found negligent until they are measured by some standard. Plaintiff's standard of care could not be determined until his capacity for contributorynegligencewas found. While the evidence produced in the district court might support

a jury verdict that plaintiffwas contributorilynegligent, it cannot support such finding as a matter of law. Reasonable men could differ on the facts presented and thus the requirements of Rule 

### 56,M.R.Civ.P., governing summary judgments, are lacking. However, defendant asserts that plaintiff violated Montana statutes regulating the conduct of pedestrians, and therefore he

was contributorilynegligent, as a matter of law. Her argument is that section 32-2178,R.C.M. 1947, sets the standard for determining the care which must be exercised by 

### anypedestrian. That section provides, in pertinent part: "(a) Every pedestrian crossing a roadway at any point other thanwithin a marked crosswalk or within an unmarked crosswalk at an intersection shallyield the right ofway to all vehicles upon 

### the roadway." That statute makes no express exceptions for anyone, and

II 

### certainlynot for children. Pedestrians are defined as any person afoot" and persons include "every natural person". Section 32-2111, R.C.M. 1947.

### Authorities recognize the inconsistency inherent in a standard which imposes adult guidelines on childrenwho violate statutes,but applies a lesser-than-adultstandard to a child's conduct outside statutory regulation. See Prosser, Law of Torts, 4th ed. 

### 5 36,n.13. 2 Restatement of Torts 2d, 

### 5 288A, p. 32,uses this language: "(1) An excused violation of a legislative enactment or an administrative regulation is not negligence. 

### "(2) Unless the enactment or regulation is construed not to permit such excuse, its violation is excused when "(a) the violation is reasonable because of the actor's incapacity". This illustrative comment in 

### 5 288A is particularly pertinent here: 

### "2. A statute provides that pedestrians shall not step into the street without looking in both directions for approaching traffic. A, a boy eight years of age, dashes into the street without looking, in pursuit of a ball. A's violation of the statute may be found not to be negligence if his conduct was reasonable for a child of similar age, intelligence,and experience.11 

### The statutory violation may thus be excused if the plaintiff lacked the capacity for compliance. The summary judgment for defendant is vacated. The case is remanded to the district court for further proceedings.

Justice

We Concur:

.,