2020 Georgia Code
Title 51 - Torts
Chapter 1 - General Provisions
§ 51-1-5. Meaning of "Due Care" in Reference to Child of Tender Years

The term "due care," when used in reference to a child of tender years, is such care as the child's mental and physical capacities enable him to exercise in the actual circumstances of the occasion and situation under investigation.

(Civil Code 1895, § 2901; Civil Code 1910, § 3474; Code 1933, § 105-204.)

- For article discussing defenses to action for wrongful death in Georgia, see 22 Ga. B. J. 459 (1960). For comment criticizing Powell v. Hartford Accident & Indem. Co., 217 Tenn. 503, 398 S.W.2d 727 (1966), and advocating subjective determination by jury of minor's capacity to exercise due care on the highway, see 18 Mercer L. Rev. 518 (1967). For comment criticizing Hatch v. O'Neill, 231 Ga. 446, 202 S.E.2d 44 (1973), holding individual under age of criminal responsibility not civilly liable for willful torts, see 26 Mercer L. Rev. 367 (1974).

ANALYSIS

• General Consideration
• Contributory Negligence
• Duty of Care Owed to Children
• Jury Instructions
• Child's Negligence as Jury Question

Conduct of child of tender years is not to be judged by same rule that governs actions of adult. Huckabee v. Grace, 48 Ga. App. 621, 173 S.E. 744 (1934).

- Care and diligence required of an infant of tender years is not fixed by any invariable rule with reference to the age of the infant or otherwise. It depends upon the capacity of the particular infant, taking into consideration the infant's age as well as other matters. McLarty v. Southern Ry., 127 Ga. 161, 56 S.E. 297 (1906); MacDougald Constr. Co. v. Mewborn, 34 Ga. App. 333, 129 S.E. 917 (1925).

Due care in child of tender years is such care as the child's capacity, mental and physical, fits the child for exercising in actual circumstances of the occasion and situation under investigation. Rogers v. McKinley, 48 Ga. App. 262, 172 S.E. 662 (1934); Huckabee v. Grace, 48 Ga. App. 621, 173 S.E. 744 (1934).

Child of tender years may not be under the duty of exercising ordinary care as defined in § 51-1-2, but the child is charged with the duty of exercising such care as the child's capacity, mental and physical, fits the child for exercising, this capacity to be judged by the jury from the circumstances surrounding the transaction under investigation, and the child's conduct in reference thereto. Huckabee v. Grace, 48 Ga. App. 621, 173 S.E. 744 (1934).

Neither average child of child's own age, nor prudent man, is standard by which to measure child's diligence with legal exactness. Clary Maytag Co. v. Rhyne, 41 Ga. App. 72, 151 S.E. 686 (1930); Jackson v. Young, 125 Ga. App. 342, 187 S.E.2d 564 (1972).

Section speaks in terms of particular youthful plaintiff in particularized circumstances. The child, unlike an adult counterpart, does not undergo the metamorphosis into the fictionalized character of the ordinary prudent youth. Williams v. United States, 379 F.2d 719 (5th Cir. 1967).

This section means such care as the capacity of the particular child enables the child to use naturally and reasonably, and not the care ordinarily exercised and which should reasonably be expected from a child of the child's years and experience, under the circumstances in which the child is placed. Ragan v. Goddard, 43 Ga. App. 599, 159 S.E. 743 (1931).

Merely because a petition alleged in effect that a child was intelligent and unusually well developed, the degree of care which the child was required to exercise was still to be measured by the child's own particular capacity, in the light of the actual circumstances of the occasion and situation under investigation. Ragan v. Goddard, 43 Ga. App. 599, 159 S.E. 743 (1931).

For child to be negligent, child must be shown to have appreciation of risk involved, and a general showing that the child was aware of the factual situation is not sufficient. It must be shown that the child was aware of and appreciated the danger of the situation. Williams v. United States, 379 F.2d 719 (5th Cir. 1967).

- Infants under 14 years of age are chargeable with contributory negligence resulting from a want of such care as their mental and physical capacity fits them for exercising, and assume the risk of those patent, obvious, and known dangers which they are able to appreciate and avoid. Evans v. Mills, 119 Ga. 448, 46 S.E. 674 (1904); MacDougald Constr. Co. v. Mewborn, 34 Ga. App. 333, 129 S.E. 917 (1925).

Child of tender years, under 14 years of age, is not bound to exercise due care as an adult (exacted of every prudent man) but according to the child's age and capacity. Sturdivant v. Polk, 140 Ga. App. 152, 230 S.E.2d 115 (1976).

Child guest 13 years of age, not being so young as to be as a matter of law incapable of negligence, and not being bound to exercise the same measure of ordinary care which is exacted of every prudent adult, is nevertheless required under the Code to exercise the "due care" of a child of "tender years." Eddleman v. Askew, 50 Ga. App. 540, 179 S.E. 247 (1935).

There is no presumption of law that child between ages of seven and 14 did or did not exercise due care, or does or does not have sufficient capacity to recognize danger or to observe due care. Jackson v. Young, 125 Ga. App. 342, 187 S.E.2d 564 (1972).

- Child of four years or younger is conclusively presumed to be incapable of contributory negligence. Crawford v. Southern Ry., 106 Ga. 870, 33 S.E. 826 (1899); City of Atlanta v. Whitley, 24 Ga. App. 411, 101 S.E. 2 (1919); Williams v. Jones, 26 Ga. App. 558, 106 S.E. 616 (1921).

- If 16 year old plaintiff had desired to avoid the legal presumption that the law treated the plaintiff as an adult, the burden was on the plaintiff to offer proof to rebut the presumption. Sheetz v. Welch, 89 Ga. App. 749, 81 S.E.2d 319 (1954).

Child, 15 years of age, in the absence of any evidence of the want of ordinary capacity in the particular child, should not be treated as a child of "tender years," but as a young person chargeable with such diligence as might fairly be expected of the class and condition to which the child belongs. Laseter v. Clark, 54 Ga. App. 669, 189 S.E. 265 (1936).

Child over 14 years is presumptively chargeable with some degree of diligence as an adult under the same circumstances. Muscogee Mfg. Co. v. Butts, 21 Ga. App. 558, 94 S.E. 821 (1918); Texas Co. v. Hearn, 23 Ga. App. 408, 98 S.E. 419 (1919); Paulk & Fossil v. Lee, 31 Ga. App. 629, 121 S.E. 845 (1924).

Young person of the age of 14 or more is presumed to be capable of realizing danger, and of exercising the necessary forethought and caution to avoid it, and is presumptively chargeable with diligence for the person's own safety, when the peril is palpable and manifest. Laseter v. Clark, 54 Ga. App. 669, 189 S.E. 265 (1936).

Regardless of age, if there is no breach of legal duty on part of defendant toward that person, there can be no legal liability. YMCA v. Bailey, 112 Ga. App. 684, 146 S.E.2d 324 (1965), cert. denied, 385 U.S. 868, 87 S. Ct. 131, 17 L. Ed. 2d 95 (1966).

Cited in McCombs v. Southern Ry., 39 Ga. App. 716, 148 S.E. 407 (1929); Atlantic Ice & Coal Co. v. Harris, 45 Ga. App. 419, 165 S.E. 134 (1932); Southern Ry. v. Perkins, 66 Ga. App. 66, 17 S.E.2d 95 (1941); Eason v. Crews, 88 Ga. App. 602, 77 S.E.2d 245 (1953); Edwards v. United States, 164 F. Supp. 885 (M.D. Ga. 1958); Lanier v. O'Bear, 101 Ga. App. 667, 115 S.E.2d 110 (1960); Henry Grady Hotel Corp. v. Watts, 119 Ga. App. 251, 167 S.E.2d 205 (1969); Perry Bros. Transp. Co. v. Rankin, 120 Ga. App. 798, 172 S.E.2d 154 (1969); Bailey v. Todd, 126 Ga. App. 731, 191 S.E.2d 547 (1972); Anderson v. Happ, 136 Ga. App. 839, 222 S.E.2d 607 (1975); Wallace v. Ener, 521 F.2d 215 (5th Cir. 1975); Lequire v. Youmans, 147 Ga. App. 174, 248 S.E.2d 235 (1978); Walt Disney Prods., Inc. v. Shannon, 247 Ga. 402, 276 S.E.2d 580 (1981); Blackwell v. Cantrell, 169 Ga. App. 795, 315 S.E.2d 29 (1984); Sorrells v. Miller, 218 Ga. App. 641, 462 S.E.2d 793 (1995).

Contributory Negligence

General rules on contributory negligence not necessarily applicable to children.

- Although it is the general rule with regard to an adult that to entitle the adult to recover damages for an injury resulting from the negligence of another the adult must be personally in the exercise of ordinary care, this is not the rule with regard to an infant of tender years. Huckabee v. Grace, 48 Ga. App. 621, 173 S.E. 744 (1934).

- If, because of the child's age, a child did not understand the risk involved in the child's conduct, the child's failure to exercise ordinary care to discover the danger is not properly a matter of assumption of risk, but of the defense of contributory negligence. Hawkins ex rel. Pearson v. Small World Day Care Ctr., Inc., 234 Ga. App. 843, 508 S.E.2d 200 (1998).

- There is no liability if the injured person, by the exercise of that degree of care which the law required of the person, could have avoided the consequences of any negligence of which the defendant may have been guilty. YMCA v. Bailey, 112 Ga. App. 684, 146 S.E.2d 324 (1965), cert. denied, 385 U.S. 868, 87 S. Ct. 131, 17 L. Ed. 2d 95 (1966).

Whether or not a child 15 years of age, who was riding on a truck driven by one whose negligence was not imputable to the child, should be held presumptively liable to the same standard of care as would control an ordinary adult or an ordinarily experienced adult driver, one could not even in that event be held liable as a matter of law for any contributory negligence on the child's part, unless the child's peril was palpable and manifest and the child failed to exercise that care which would have been exercised under similar circumstances by an ordinarily prudent adult. Laseter v. Clark, 54 Ga. App. 669, 189 S.E. 265 (1936).

Question of capacity or lack of capacity to be contributorily negligent in case of children, even very young children, is subjective one which necessarily depends in each situation upon the particular child's mental and physical capacity. Brewer v. Gittings, 102 Ga. App. 367, 116 S.E.2d 500 (1960); Jackson v. Young, 125 Ga. App. 342, 187 S.E.2d 564 (1972); Ashbaugh v. Trotter, 237 Ga. 46, 226 S.E.2d 736 (1976).

- Negligence may be alleged to show the injurious conduct of a child in support of an action against another who bears responsibility on account of the conduct of the child, even if the child cannot be charged with contributory negligence to defeat or diminish recovery in an action in one's behalf, or with negligence to support an action directed against the child. Miles v. Harrison, 115 Ga. App. 143, 154 S.E.2d 377, rev'd on other grounds, 223 Ga. 352, 155 S.E.2d 6 (1967).

Children of tender years are entitled to degree of care proportioned to their ability to foresee and avoid perils which may be encountered. Augusta Amusements, Inc. v. Powell, 93 Ga. App. 752, 92 S.E.2d 720 (1956).

Child's ability to appreciate danger generally not presumed. As to a child seven years old, no presumption arises that the child will appreciate danger and will act with the discretion of an adult in going upon a railroad track and in getting out of the way of an approaching train, and persons in charge of such a train are not authorized to act on such a presumption. Simmons v. Atlanta & W.P.R.R., 46 Ga. App. 93, 166 S.E. 666 (1932).

- If there are latent defects in machinery or dangers incident to an employment, unknown to the servant, of which the master knows or ought to know, the master must give the servant warning in respect thereto, and this is especially true when the servant is a child of tender years, since, while it is the general rule that a servant assumes the ordinary risks of the servant's employment and is bound to exercise the servant's own skill and diligence to protect oneself, a child of tender years, under the age of 14, assumes only such ordinary risks of the servant's employment as the servant is capable of appreciating and understanding, and a master who, by personally or through an authorized agent, directs such a child to do an act which, if performed according to the means and method provided by the master, would be attended with danger, owes the duty of warning the servant of the dangers incident to its performance, and in doing so must take into consideration the child's incapacity to appreciate and understand danger, and in such a case the duty incumbent upon the child is to exercise due care according to the child's age and the child's own actual capacity, rather than the ordinary care exacted by the general rule of every prudent man. Moore v. Ross, 41 Ga. App. 509, 153 S.E. 575 (1930).

- It is the duty of a schoolbus driver to deposit a passenger in a place of safety and, in the case of an infant, whether or not a place of deposit is a place of safety cannot be determined solely by whether or not one would be safe if the passenger remained on that spot. Davidson v. Horne, 86 Ga. App. 220, 71 S.E.2d 464 (1952).

There was no duty on the part of a schoolbus driver to assist a nine year old child in crossing the highway safely. Davidson v. Horne, 86 Ga. App. 220, 71 S.E.2d 464 (1952).

Jury Instructions

Consistency of instructions.

- Immediately after defining negligence in a proper manner and stating that the plaintiff and the defendant were both required to exercise ordinary diligence, the court immediately went on to use the language of this section, construing this portion of the charge as a whole, it was not erroneous and could not have misled the jury. Brewer v. Gittings, 102 Ga. App. 367, 116 S.E.2d 500 (1960).

- When the court charged the jury that the plaintiff as a matter of law could not be charged with any negligence, it was not error, in the absence of a special request, for the court to fail to charge more elaborately, as laid down in this section, the rule as to care attributable to a child of tender years, or in failing to charge that the plaintiff, a child of four years, was a child of tender years, and was incapable of being guilty of contributory negligence. Tharpe v. Cudahy Packing Co., 60 Ga. App. 449, 4 S.E.2d 49 (1939).

- Having instructed the jury as to the standard of care expected of a child, it is unnecessary for the court to repeat such instructions in each instance when referring to the negligence of the child. Shirey v. Woods, 118 Ga. App. 851, 165 S.E.2d 891 (1968).

- In case in which 15-year-old defendant shot plaintiff's 14-year-old son while attempting to unload the defendant's gun during a hunting trip, trial court committed reversible error in giving a child of tender years instruction absent evidence either child lacked the capacity of a person the child's age. Townsend v. Moore, 165 Ga. App. 606, 302 S.E.2d 398 (1983).

Question of infant's alleged negligence is one for jury under appropriate instructions from trial court. Canton Cotton Mills v. Edwards, 120 Ga. 447, 47 S.E. 937 (1904); Beck v. Standard Cotton Mills, 1 Ga. App. 278, 57 S.E. 998 (1907); Savannah Lighting Co. v. Harrison, 20 Ga. App. 8, 92 S.E. 772 (1917); Western & A.R.R. v. Reed, 35 Ga. App. 538, 134 S.E. 134, cert. denied, 35 Ga. App. 808 (1926); Smith v. Kleinberg, 49 Ga. App. 194, 174 S.E. 731 (1934); Etheridge v. Hooper, 104 Ga. App. 227, 121 S.E.2d 323 (1961); Ashbaugh v. Trotter, 237 Ga. 46, 226 S.E.2d 736 (1976); Davis v. Webb, 149 Ga. App. 144, 253 S.E.2d 820 (1979).

Question of contributory negligence of child of tender years is one especially for jury. Davis v. General Gas Corp., 106 Ga. App. 317, 126 S.E.2d 820 (1962).

- Trial court did not err in failing to charge the jury upon request that a child under six years old is presumed incapable of contributory negligence. Clanton v. Gwinnett County Sch. Dist., 219 Ga. App. 343, 464 S.E.2d 918 (1995).

- In determining issues of proximate causation, it was for the jury to decide the issue of due care owed as to a nine-year-old child who ran into the street and was hit by a truck. Atlanta Affordable Hous. Fund L.P. v. Brown, 253 Ga. App. 286, 558 S.E.2d 827 (2002).

Question of an 11-year-old child's contributory negligence is for the jury. Fraley ex rel. Fraley v. Lake Winnepesaukah, Inc., 631 F. Supp. 160 (N.D. Ga. 1986).

Whether child under 14 is capable of negligence, except in plain and unmistakable cases, is question for determination by jury. Williams v. United States, 352 F.2d 477 (5th Cir. 1965), later appeal, 379 F.2d 719 (5th Cir. 1967).

Capacity of child, age seven or above, to appreciate danger and exercise some degree of care, is matter of fact for jury determination. Augusta Amusements, Inc. v. Powell, 93 Ga. App. 752, 92 S.E.2d 720 (1956); Brewer v. Gittings, 102 Ga. App. 367, 116 S.E.2d 500 (1960); Miles v. Harrison, 115 Ga. App. 143, 154 S.E.2d 377, rev'd on other grounds, 223 Ga. 352, 155 S.E.2d 6 (1967); Shirey v. Woods, 118 Ga. App. 851, 165 S.E.2d 891 (1968).

- Since the question of capacity is an individual one in each of the cases involving children between seven and 14 years of age, the jury must first find that the particular child had the capacity required and then must decide whether or not the child exercised it. Brewer v. Gittings, 102 Ga. App. 367, 116 S.E.2d 500 (1960); Jackson v. Young, 125 Ga. App. 342, 187 S.E.2d 564 (1972).

- Jury is to determine what were the circumstances and facts of the matter under investigation and then determine the child's age and mental and physical capacity at the time of the injury and from this then determine what care the child was capable of exercising and whether or not the child exercised that particular care which would be the due care expected of the child by law. Clary Maytag Co. v. Rhyne, 41 Ga. App. 72, 151 S.E. 686 (1930); Davis v. Webb, 149 Ga. App. 144, 253 S.E.2d 820 (1979).

- In automobile collision cases, whether a child guest of tender years exercised the measure of due care required by the Code under the actual circumstances of the occasion and situation is a question peculiarly for a jury, and not a question of law to be decided by the court, except in clear and palpable cases. Eddleman v. Askew, 50 Ga. App. 540, 179 S.E. 247 (1935), overruled in part on other grounds, Chadwick v. Miller, 169 Ga. App. 338, 312 S.E.2d 835 (1983).

- While the standard of ordinary care of a child of 14 or 15 is presumptively that of an adult, the youth and inexperience of a child of this age are to be considered and the matter ordinarily left as a question of fact for the jury rather than as a matter of law for the court. Lassiter v. Poss, 85 Ga. App. 785, 70 S.E.2d 411 (1952).

RESEARCH REFERENCES

Am. Jur. 2d.

- 57A Am. Jur. 2d, Negligence, §§ 180, 189 et seq.

- 65 C.J.S., Negligence, §§ 78, 130 et seq.

- Automobiles: liability of parent for injury to child's guest by negligent operation of car, 2 A.L.R. 900; 88 A.L.R. 590.

Intervening act of child as affecting question of proximate cause of damage to the person or property of third person by fire or explosion, 8 A.L.R. 1250.

Duty of carrier to guard young children against danger of falling from car, 28 A.L.R. 1035.

Duty to guard against danger to children by electric wires, 49 A.L.R. 1053; 100 A.L.R. 621.

Liability for injury to child guest on one's premises, 60 A.L.R. 108.

Negligence or contributory negligence of parent in intrusting child to custody of another child, 123 A.L.R. 147.

Liability for injury to child by automobile left unattended in street or highway, 140 A.L.R. 538.

Child's violation of statute or ordinance as affecting question of his negligence or contributory negligence, 174 A.L.R. 1170.

Liability for injury by explosive or the like found by, or left accessible to, a child, 10 A.L.R.2d 22.

Railroad's duty to children walking longitudinally along railroad tracks or right of way, 31 A.L.R.2d 789.

Liability to patron of scenic railway, roller coaster, or miniature railway, 66 A.L.R.2d 689.

Standard for judging conduct of minor motorist charged with gross negligence, recklessness, willful or wanton misconduct, or the like, under guest statute or similar common-law rule, 97 A.L.R.2d 861.

Age of minor operator of automobile or other motor-powered vehicle or craft as affecting his primary or contributory negligence, 97 A.L.R.2d 872.

Contributory negligence of child injured while climbing over or through railroad train blocking crossing, 11 A.L.R.3d 1168.

Age and mentality of child as affecting application of attractive nuisance doctrine, 16 A.L.R.3d 25.

Duty of possessor of land to warn child licensees of danger, 26 A.L.R.3d 317.

Railroad's liability for injury to or death of child on moving train other than as paying or proper passenger, 35 A.L.R.3d 9.

Weapons: application of adult standard of care to infant handling firearms, 47 A.L.R.3d 620.

Liability for injury or death in shooting contest or target practice, 49 A.L.R.3d 762.

Excessiveness and adequacy of damages for personal injuries resulting in death of minor, 49 A.L.R.3d 934.

Lawn mowing by minors as violation of child labor statutes, 56 A.L.R.3d 1166.

Infant as guest within automobile guest statutes, 66 A.L.R.3d 601.

Landlord's liability to tenant's child for personal injuries resulting from defects in premises, as affected by tenant's negligence with respect to supervision of child, 82 A.L.R.3d 1079.

Liability of youth camp, its agents or employees, or of scouting leader or organization, for injury to child participant in program, 88 A.L.R.3d 1236.

Liability for injury to or death of child from electric wire encountered while climbing tree, 91 A.L.R.3d 616.

Products liability: toys and games, 95 A.L.R.3d 390.

Modern trends as to tort liability of child of tender years, 27 A.L.R.4th 15.

Modern trends as to contributory negligence of children, 32 A.L.R.4th 56.

Excessiveness and adequacy of damages for personal injuries resulting in death of minor, 49 A.L.R.4th 1076.