No. 12683 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1975 

JERRY RANARD, a minor, by and 

through his Guardian, Carl M. Ranard, 

Plaintiff and Appellant, 

-vs - 

KATHY O'NEIL, 

Defendant and Respondent. 

Appeal from: District Court of the First Judicial District, 

Honorable Gordon R. Bennett, Judge presiding. 

Counsel of Record: 

For Appellant : 

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 : Janua ry 16, 19 7 5 

Decided: FEB 1 0 1975 

Clerk 
Mr. ~ustice Frank I. Haswell delivered the Opinion of the Court. 

This is an appeal from a summary judgment granted defendant 

in a personal injury action in the district court, Lewis and Clark 

County. The district court held: 

"* * * the defendant, Kathy O'Neil, is entitled to summary judgment, as a matter of law, 

finding that plaintiff, Jerry Ranard, was guilty 

of contributory negligence as a matter of 12w and 

defendant Kathy OrNeil had 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 driven by defendant. The indident occurred on a Helena city street at approximately 9:00 p.m. 

The street was snow packed and icy; it was illuminated by street 

lights . 

Plaintiff, whose eighth birthday was on the day following the 

accident, was on his way home from a boxing lesson. His instructor 

had driven plaintiff and his brother 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. 

As plaintiff 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 to avoid hitting him. Plaintiff was hospitalized for 

several weeks and continued to wear a cast on his broken 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 are not clear, plaintiff did admit to 

having received some instruction on pedestrian safety, including 

the traditional stop, look and listen. He could not recall where 

he had received it, or precisely when it was taught. 

The complaint alleged that plaintiff's injuries were 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, in a 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 at the beginning of this opinion. Plaintiff appeals from 

that judgment, alleging the district court erred in granting the 

motion. 

The rule governing summary judgments is Rule 56, M.R.Civ.P., 

which provides in pertinent part: 

"(c) * * * The judgment sought shall be rendered 

forthwith if the pleadings, depositions, answers to 

interrogatories, and admissions on file show that there 

is no genuine issue as to any material fact and that the 

moving party is entitled to a judgment as a matter of law. I I 

Defendant, the moving party, has the burden of establishing 

the absence of any issues of material fact and that she is entitled 

to judgment as a matter of law. See, e.g. Meech v. Cure, - Mon t . 

, 525 P.2d 546, 31 St.Rep. 637; Beierle v. Taylor, - Mon t . 

, 524 P.2d 783, 31 St.Rep. 554. 

With these considerations in mind, we turn to the particular 

questions raised by this appeal. They are: 

(1) Did the plaintiff have the capacity to be contributorily 

negligent ? 

(2) If so, was plaintiff contributorily negligent under the 

facts here? 
(3) Was the plaintiff contributorily negligent as a matter 

of law because of violation of statutory requirements governing 

pedestrian conduct ? 

At the outset, we observe that the district court had nothing 

but the cold record upon which to base its decision--the same record 

which is before us for review. In particular, the district court was 

not aided in its assessment of plaintiff's capacity by an opportunity 

to view his demeanor in court, 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, 150 Mont. 270, 277, 435 P.2d 263. Both 

deal with alleged contributory negligence by boys between eight and 

nine years old. 

In Lesage the plaintiff, a boy aged eight years and nine months, 

was struck by an automobile as he played football in a city street. 

The plaintiff admitted that he had not seen the car that struck him, 

but could have if he had looked. There was testimony that plaintiff 

ran in front of the car when it was at a 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 

contributorily negligent as a matter of law. This Court affirmed, 

finding evidence sufficient to justify a verdict for the plaintiff. 

The following test was suggested in Lesage 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 ordinarily be expected of children of the 

same age, taking into consideration their experience, 

intelligence and capabilities?" 

The test was recognized as one which ordinarily should be submitted 

to the jury. 

In Graham, an eight and one-half year old boy was killed when 

struck by an automobile while riding his bicycle on a city street. 

The only eyewitness who testified was the defendant, whose version 

of the events was found to be so inconsistent as to warrant little 
credence. The relevant issue was whether or not the district cnurt 

erred in instructing the jury the plaintiff was incapable of contributory negligence as a matter of law. 

In Graham, this Court set forth a further test for determination 

of a child's contributory negligence. A dual inquiry is required 

covering : 

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

case to I+- e contributorily negligent; and (2) the 

establishment in fact of the particular child's 

contributory negligence under the circumstances of a 

given case. 11 

Applying the first part of the test, we held that reasonable 

men could differ as to plaintiff's capacity to be contributorily 

negligent, and the district court had erred in removing that consideration from the jury. The evidence showed only the boy's age, his 

grade in school, his ability to ride 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 are difficult to summarize in a general 

rule. In this context, the capacity of a particular child is his 

ability to appreciate the danger, either to himself or others, of the 

act alleged to be negligent. That capacity is determined by his 

age, experience, intelligence and capabilities. His negligence in 

fact can only be determined by finding a failure to conform his 

conduct to a standard of care which he can reasonably observe, 

given the limitations of his capacity. 

In the instant case, plaintiff's responses to the questions 

recorded in his deposition are commonly phrased in a single word. 

While this might be typical for a child of his age, when subjected 

to an unfamiliar deposition process, it says little or nothing 

about his intelligence. 

There is evidence of plaintiff's experience -- he attended 

school and was instructed in certain rules of safety for pedestrians. 

Plaintiff could not remember when the instruction was received, 

where it was received, nor its intensity. We are presented with 
, 

some evidence of experience, but the remainder an 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 contributory negligence 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 contributory negligence was found. 

While the evidence produced in the district court might support 

a jury verdict that plaintiff was contributorily negligent, 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 contributorily negligent, 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 any pedestrian. That section 

provides, in pertinent part: 

"(a) Every pedestrian crossing a roadway at any point 

other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the 

right of way to all vehicles upon the roadway." 

That statute makes no express exceptions for anyone, and 

certainly not for children. Pedestrians are defined as I I 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 children who violate statutes, but 

applies a lesser-than-adult standard 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: . ,