Copyright 1965, American Law Institute

Division Two - Negligence
Chapter 12 - General Principles
Topic 2 - The Standard By Which Negligence is Determined


 If the actor is a child, the standard of conduct to which he must conform to avoid being negligent is that of a reasonable person of like age, intelligence, and experience under like circumstances.


a.  Children.  A child is a person of such immature years as to be incapable of exercising the judgment, intelligence, knowledge, experience, and prudence demanded by the standard of the reasonable man applicable to adults. The rule stated in this Section is commonly applied to children of tender years. In practice, it has seldom been applied to anyone over the age of sixteen, although situations may possibly arise where the rule might be applicable to persons above that age, and no definite line can be drawn. An analogy may be suggested to the rule stated in § 339 as to the immaturity and lack of judgment of children trespassing upon land. See the Comments to that Section.

Most of the cases which have applied the rule stated in this Section have involved the contributory negligence of children, where the reason for special protection of them is readily apparent; but the rule is equally applicable to child defendants.

b.  Special standard for children.  The special standard to be applied in the case of children arises out of the public interest in their welfare and protection, together with the fact that there is a wide basis of community experience upon which it is possible, as a practical matter, to determine what is to be expected of them.

A child of tender years is not required to conform to the standard of behavior which it is reasonable to expect of an adult. His conduct is to be judged by the standard of behavior to be expected of a child of like age, intelligence, and experience. A child may be so young as to be manifestly and utterly incapable of exercising any of those qualities of attention, perception, knowledge, experience, intelligence, and judgment which are necessary to enable him to perceive a risk and to realize its unreasonable character. On the other hand, it is obvious that a minor who has not yet attained his majority may be quite as capable as an adult of exercising such qualities. Some courts have endeavored to lay down fixed rules as to a minimum age below which the child is incapable of being negligent, and a maximum age above which he is to be treated like an adult. Usually these rules have been derived from the old rules of the criminal law, by which a child under the age of seven was considered incapable of crime, and one over fourteen was considered to be as capable as an adult. The prevailing view is that in tort cases no such arbitrary limits can be fixed. Undoubtedly there is a minimum age, probably somewhere in the vicinity of four years, below which negligence can never be found; but with the great variation in the capacities of children and the situations which may arise, it cannot be fixed definitely for all cases.

Between the two extremes there are children whose capacities are infinitely various. The standard of conduct required of the child is that which it is reasonable to expect of children of like age, intelligence, and experience. "Intelligence" includes other mental capacities, but does not include judgment, which is an exercise of capacity rather than the capacity itself. The fact that the child is mentally retarded, or that he is unusually bright for his years, is to be taken into account; but once such account is taken, the child is still required to exercise the judgment of a reasonable person of that intelligence. Likewise to be taken into account are the circumstances under which the child has lived, and his experience in encountering particular hazards, or the education he has received concerning them. If the child is of sufficient age, intelligence, and experience to understand the risks of a given situation, he is required to exercise such prudence in protecting himself, and such caution for the safety of others, as is common to children similarly qualified.

It is impossible to lay down definite rules as to whether any child, or any class of children, should be able to appreciate and cope with the dangers of many situations. A child of ten may in one situation have sufficient capacity to appreciate the risk involved in his conduct, and to realize its unreasonable character, but in another situation he may lack the necessary mental capacity or experience to do so; and in the case of another child of ten of different mental capacity or experience a different conclusion may be reached in the same situation.

c.  Child engaging in adult activity.  An exception to the rule stated in this Section may arise where the child engages in an activity which is normally undertaken only by adults, and for which adult qualifications are required. As in the case of one entering upon a professional activity which requires special skill (see § 299 A), he may be held to the standard of adult skill, knowledge, and competence, and no allowance may be made for his immaturity. Thus, for example, if a boy of fourteen were to attempt to fly an airplane, his age and inexperience would not excuse him from liability for flying it in a negligent manner. The same may be true where the child drives an automobile. In this connection licensing statutes, and the examinations given to drivers, may be important in determining the qualifications required; but even if the child succeeds in obtaining a license he may thereafter be required to meet the standard established primarily for adults.

REPORTERS NOTES:  This Section has been added to the first Restatement, which covered the matter in Comment e under § 283, now omitted.

For the application of the rule stated to child defendants, see Hoyt v. Rosenberg, 80 Cal. App. 2d 500, 182 P.2d 234, 173 A.L.R. 883 (1947); Lutteman v. Martin, 20 Conn. Supp. 371, 135 A.2d 600 (1957); Faith v. Massengill, 104 Ga. App. 348, 121 S.E.2d 657 (1961); Chernotik v. Schrank, 76 S.D. 374, 79 N.W.2d 4 (1956); Heath v. Madsen, 273 Wis. 628, 79 P.2d 73 (1956); Kuhns v. Brugger, 390 Pa. 331, 135 A.2d 395, 68 A.L.R.2d 761 (1957); Harvey v. Cole, 159 Kan. 239, 153 P.2d 916 (1944); Charbonneau v. MacRury, 84 N.H. 501, 153 A. 457, 73 A.L.R. 1266 (1931); Gulf, C. & S. F. R. Co. v. McWhirter, 77 Tex. 356, 14 S.W. 26, 19 Am. St. Rep. 755 (1890); Briese v. Maechtle, 146 Wis. 89, 130 N.W. 893, 35 L.R.A. N.S. 574, Ann. Cas 1912C, 176, 1 N.C.C.A. 769 (1911).

As to the allowance made for age, intelligence and experience, see Government Employees Ins. Co. v. Davis, 266 F.2d 760 (5 Cir. 1959); Garrison v. St. Louis, I. M. & S. R. Co., 92 Ark. 437, 123 S.W. 657 (1909); Marfyak v. New England Transp. Co., 120 Conn. 46, 179 A. 9, 37 N.C.C.A. 266 (1935); Linthicum v. Truitt, 25 Del. (2 Boyce) 338, 80 A. 245 (1911); McCain v. Bankers Life & Cas. Co., 110 So. 2d 718, 68 A.L.R.2d 1194 (Fla. App. 1959); Frazier v. Northern Pacific R. Co., 28 F. Supp. 20 (D. Idaho 1939); Harris v. Indiana General Service Co., 206 Ind. 351, 189 N.E. 410 (1934); Harvey v. Cole, 159 Kan. 239, 153 P.2d 916 (1944); Plauche v. Consolidated Companies, 235 La. 692, 105 So. 2d 269 (1958); Ackerman v. Advance Petroleum Transport, 304 Mich. 96, 7 N.W.2d 235 (1942); Grealish v. Brooklyn, Q. C. & S. R. Co., 130 App. Div. 238, 114 N.Y.Supp. 582 (1909), affirmed, 197 N.Y. 540, 91 N.E. 1114 (1910); Zajaczkowski v. State, 189 Misc. 299, 71 N.Y.S.2d 261 (1947); Cleveland Rolling Mill Co. v. Corrigan, 46 Ohio St. 283, 20 N.E. 466, 3 L.R.A. 385, 15 Am. St. Rep. 596 (1888); Maker v. Wellin, 214 Ore. 332, 327 P.2d 793, 329 P.2d 114 (1958); Thomas v. Oregon Short Line R. Co., 47 Utah 394, 154 P. 777 (1916); Vitale v. Smith Auto Sales Co., 101 Vt. 477, 144 A. 380 (1929); Quinn v. Ross Motor Car Co., 157 Wis. 543, 147 N.W. 1000 (1914).

Even with such allowance made, the child may still be negligent as a matter of law. Studer v. Southern Pacific Co., 121 Cal. 400, 53 P. 942, 66 Am. St. Rep. 39 (1898); Colomb v. Portland & Brunswick St. R. Co., 100 Me. 418, 61 A. 898 (1905); Ackerman v. Advance Petroleum Transport, 304 Mich. 96, 7 N.W.2d 235 (1942); Lobsenz v. Rubenstein, 258 App. Div. 164, 15 N.Y.S.2d 848 (1939), affirmed, 283 N.Y. 600, 28 N.E.2d 22 (1940).

For examples of the minority rule, that a child under the age of seven is incapable of negligence, see Patrick v. Mitchell, 242 Ala. 414, 6 So. 2d 889 (1942); Chicago City R. Co. v. Tuohy, 196 Ill. 410, 63 N.E. 997, 58 L.R.A. 270 (1902); Dixon v. Stringer, 277 Ky. 347, 126 S.W.2d 448 (1939); Burns v. Eminger, 81 Mont. 79, 261 P. 613 (1927); Walston v. Greene, 247 N.C. 693, 102 S.E.2d 124 (1958); Dodd v. Spartanburg R. G. & E. Co., 95 S.C. 9, 78 S.E. 525 (1913); Nelson v. Arrowhead Freight Lines, 99 Utah 129, 104 P.2d 225 (1940), disapproved in Mann v Fairbourn, 12 Utah 2d 342, 366 P.2d 603 (1961). Compare Shaske v. Hron, 266 Wis. 384, 63 N.W.2d 706 (1954), five years and a half.

Most states reject any such arbitrary limit. Sullivan v. Boston Elevated R. Co., 192 Mass. 37, 78 N.E. 382 (1906); Eckhardt v. Hanson, 196 Minn. 270, 264 N.W. 776, 107 A.L.R. 1 (1936); Watts v. Erickson, 244 Minn. 264, 69 N.W.2d 626 (1955); Witt v. Houston, 207 Okla. 25, 246 P.2d 753 (1952); De Groot v. Van Akkeren, 225 Wis. 105, 273 N.W. 725 (1937); Johnson's Adm'r v. Rutland R. Co., 93 Vt. 132, 106 A. 682 (1919); State for Use of Taylor v. Barlly, 216 Md. 94, 140 A.2d 173 (1958); Mann v. Fairbourn, 12 Utah 2d 342, 366 P.2d 603 (1961). The holdings in the various states as to minimum age are collected in 107 A.L.R. 4 (1937) and 174 A.L.R. 1080 (1948).

Comment c:  As to a child engaging in an adult activity, see Wittmeier v. Post, 78 S.D. 520, 105 N.W.2d 65 (1960); Nielsen v. Brown, 232 Ore. 426, 374 P.2d 896 (1962); Renegar v. Cramer, 354 S.W.2d 663 (Tex. Civ. App. 1962), refused no reversible error; Carano v. Cardina, 115 Ohio App. 30, 20 Ohio Op. 2d 178, 184 N.E.2d 430 (1961); Dellwo v. Pearson, 259 Minn. 452, 107 N.W.2d 859 (1961), motorboat; See Note, 1962 Duke L.J. 138.

In Karr v. McNeil, 92 Ohio App. 456, 50 Ohio Op. 41, 110 N.E.2d 714 (1952); Wilson v. Shumate, 296 S.W.2d 72 (Mo. 1956); Betzold v. Erickson, 35 Ill. App. 2d 203, 182 N.E.2d 342 (1962), and Harrelson v. Whitehead, 263 Ark. 325, 365 S.W.2d 868 (1963), statutes making no specific exception as to minors driving cars were held to require an adult standard.

See generally with reference to this Section, Shulman, The Standard of Care Required of Children, 37 Yale L.J. 618 (1927); Bohlen, Liability in Tort of Infants and Insane Persons, 23 Mich. L. Rev. 9 (1924); Wilderman, Contributory Negligence of Infants, 10 Ind. L.J. 427 (1935); Notes, 21 Colum. L. Rev. 697 (1921); 74 U. Pa. L. Rev. 79 (1925); 36 Mich. L. Rev. 328 (1937); 22 N.Y.U.L. Rev. 131 (1947); 1 Ark. L. Rev. 293 (1947); 36 Geo. L.J. 418 (1948); 34 Ind. L.J. 511 (1959).