Bol v. Campbell , 2016 Utah App. LEXIS 56 ( 2016 )

2016 UT App 58THE UTAH COURT OF APPEALS
ELIZABETH BOL,
Appellant,
v.
RICHARD J. CAMPBELL,
Appellee.
Memorandum Decision
No. 20141133-CA
Filed March 24, 2016
Third District Court, West Jordan Department
The Honorable Barry G. Lawrence
No. 130402403
Leonard E. McGee and Peter R. Mifflin, Attorneys
for Appellant
Julianne P. Blanch, Attorney for Appellee
JUDGE GREGORY K. ORME authored this Memorandum Decision,
in which JUDGE J. FREDERIC VOROS JR. and SENIOR JUDGE RUSSELL
W. BENCH concurred. 1
ORME, Judge:
¶1 Elizabeth Bol, acting on behalf of her minor child (Child),
brought suit against Richard J. Campbell because of his
involvement in a traffic accident in which Child was injured. Bol
alleged that Campbell’s negligence was the predominant cause
of the accident. Following trial, a jury concluded that Child was
eighty percent responsible for his own injuries, thus denying Bol
the relief she sought. See Utah Code Ann. § 78B-5-818(2)
1. Senior Judge Russell W. Bench sat by special assignment as
authorized by law. See generally Utah R. Jud. Admin. 11-201(6).
Bol v. Campbell
(LexisNexis 2012). Bol raises various challenges to the jury
instructions and to the adequacy of the evidence Campbell
introduced to establish Child’s standard of care, including the
lack of expert testimony. Because we conclude the trial court did
not err, we affirm.
¶2 Child, a Sudanese refugee, was raised in a United Nations
refugee camp in Kenya. In the camp, there was no running
water, electricity, or vehicular traffic nor were there paved roads
or traffic lights. When Child was twelve, his family was granted
residency in the United States and relocated to Utah.
¶3 Some four months later, after leaving the local public
library where Child was studying with his older sister, Child
came to a road he needed to cross in order to catch a bus. It was
dark, and Child was wearing dark clothing while riding a black
bicycle that lacked reflective tape or lights, in violation of Utah
law. See Utah Code Ann. § 41-6a-1114 (LexisNexis 2010). On
cross-examination during trial, Bol acknowledged that Child had
been taught “that it was dangerous to cross the road in front of a
car because a moving vehicle is dangerous.” Child testified at
trial that he was aware of the danger posed by moving cars and
that he knew to look both ways before crossing the street, but he
also testified that on this occasion he elected to cross the street
without looking because he saw his older sister look both ways
before entering the roadway. Child believed he would be safe
because she had looked both ways, and he was confident she
would not cross unless it was safe to do so. Unfortunately,
Child’s assumption was incorrect, and Campbell’s car struck
Child.
¶4 Bol sued Campbell, alleging that Campbell’s negligence
caused the accident. Without disputing Child’s claimed
damages, Campbell alleged that “[Child]’s comparative fault
was the principal cause of the collision.” At trial, the jury was
presented with testimony from Child, Bol, Child’s sister,
Campbell, a bystander, two accident reconstructionists, a police
officer, and Child’s doctor. Child testified as to his age,
20141133-CA 2 2016 UT App 58Bol v. Campbell
education, prior experience with automobile traffic, and lack of
knowledge of Utah traffic laws and ordinances. He also gave an
account of how the accident occurred and the extent of his
injuries.
¶5 At the close of Campbell’s case, Bol moved for a directed
verdict on the issue of comparative fault as raised by Campbell,
arguing that Campbell “had failed to present evidence regarding
the scope of [Child’s] duty of care.” Thus, Bol argued, the
question of comparative fault should not be presented to the
jury. The trial court denied Bol’s motion.
¶6 The jury thereafter received instruction on the principles
of comparative fault; the requirements of various traffic safety
statutes and ordinances, including an explanation that the
violation of those statutes could be considered evidence of
negligence; and the proper standard of care against which the
conduct of a minor in Child’s age group should be measured in
determining negligence. Following a jury verdict that Child was
eighty percent responsible and Campbell twenty percent
responsible for the accident, Bol moved for a judgment
notwithstanding the verdict. The trial court denied Bol’s motion.
Bol then brought this appeal.
¶7 Bol first claims that the jury instruction on the
comparative fault of children in negligence cases was erroneous
because Campbell did not present evidence, apart from the
cross-examination of Child, establishing the applicable standard
of care. “Claims of erroneous jury instructions present questions
of law that we review for correctness,” without deference to the
trial court. State v. Jeffs, 2010 UT 49, ¶ 16, 243 P.3d 1250.
¶8 In Utah, evidence of a statutory violation may be used as
prima facie evidence of negligence, “‘subject to justification or
excuse if the evidence is such that [a justification or excuse]
reasonably could be found.’” Hansen v. Eyre, 2005 UT 29, ¶ 12
n.4, 116 P.3d 290 (quoting Child v. Gonda, 972 P.2d 425, 432 (Utah
1998)). The Utah Supreme Court, in Morby v. Rogers, 252 P.2d 23120141133-CA 3 2016 UT App 58Bol v. Campbell
(Utah 1953), considered whether this rule ought to apply to
children between the ages of seven and fourteen.2 Id. at 233–35.
After extensively reviewing the subject, the Court concluded that
“[i]f the violation of a statute by a child is found to evidence less
care than that which ordinarily could be expected of a child of
the same age, intelligence, knowledge, and experience, he could
be held contributorily negligent.” Id. at 235. 3 Thus, a child may
2. The applicable standard of care for a child is governed largely
by the age of the child. See Nelson v. Arrowhead Freight Lines, 104
P.2d 225, 228 (Utah 1940).
Ordinarily a child under seven years of age is
conclusively presumed not guilty of contributory
negligence. Between the ages of seven and
fourteen, in the absence of [a] showing to the
contrary, [a child] is generally assumed not to have
the same consciousness of danger and the same
judgment in avoiding it as an adult. Above the age
of fourteen, in the absence of a showing to the
contrary, [a child] is generally charged with having
attained that development which imposes upon
him the same degree of care as an adult.
Id. While not at issue in this case, there is some doubt as to the
state of the law regarding children under the age of seven.
Compare Mann v. Fairbourn, 366 P.2d 603, 606 (Utah 1961)
(concluding that the Nelson court’s pronouncement that children
“under seven years of age [are] conclusively presumed not
guilty of contributory negligence” is dicta), with Kilpack v.
Wignall, 604 P.2d 462, 465–66 (Utah 1979) (recognizing that “a
young child is generally presumed to be incapable of
contributory negligence,” relying on the language of Nelson).
3. Although Morby applies the rule in the context of contributory
negligence—which is no longer the law of this state, see Utah
Code Ann. § 78B-5-818(1) (LexisNexis 2012)—Morby remains
precedential on the use of a proven violation of a civil statute as
(continued…)
20141133-CA 4 2016 UT App 58Bol v. Campbell
be found comparatively negligent for the unexcused violation of
a statute if the child “evidence[d] less care than that which
ordinarily could be expected of a child of the same age,
intelligence, knowledge, and experience.” Id.
¶9 This is so because any other rule might work to
undermine the protected status of children under negligence
law. 4 In short, we agree with Bol that the proper standard for the
trial court to apply, and with which to instruct the jury, was that
(…continued)
evidence of juvenile negligence in the context of contributory
negligence’s descendant, comparative negligence. See, e.g., Meese
v. Brigham Young Univ., 639 P.2d 720, 725–26 (Utah 1981)
(explaining that various aspects of the contributory negligence
doctrine apply in the context of comparative negligence);
Critchley v. Vance, 575 P.2d 187, 189 (Utah 1978) (noting that
where “contributory negligence was [once] a complete defense”
to negligence liability, the effect of Utah’s comparative
negligence law is that “contributory negligence is now only a
partial defense”).
4. Ordinarily, a child is held, as in the instant case, to a standard
of care that takes into account his or her age, intelligence,
knowledge, and experience. Morby v. Rogers, 252 P.2d 231, 235
(Utah 1953). Where the child is engaged in an adult activity,
however, the child is held to an adult standard. See Summerill v.
Shipley, 890 P.2d 1042, 1044–45 (Utah Ct. App. 1995). Despite
Bol’s argument to the contrary, it is clear that neither Campbell
nor the trial court suggested or argued that bike riding, even at
night, is an adult activity such that Child should be held to the
adult standard of care. Rather, the trial court’s reference to an
“objective standard” is a reflection of the fact that once the jury
evaluates a child’s subjective capacity, it must next decide
whether the child’s decisions made in light of that capacity were
objectively reasonable. See infra ¶ 10.
20141133-CA 5 2016 UT App 58Bol v. Campbell
of a partly subjective standard based on the level of care that
“ordinarily could be expected of a child of the same age,
intelligence, knowledge, and experience.” Morby, 252 P.2d at 235.
The closer question is how specific courts must be in considering
a particular child’s experience.
¶10 To establish the appropriate standard of care applicable to
a child, a two-part inquiry is necessary. First, the jury must
determine whether the child had the subjective capacity—given
his or her “age, intelligence, knowledge, and experience,” id.—to
effectively avoid the risk at issue, see Peterson v. Taylor, 316
N.W.2d 869, 873 (Iowa 1982); 57A Am. Jur. 2d Negligence § 183
(2004). It necessarily follows that “there must be evidence
adduced at trial concerning the child’s age, intelligence and
experience so that the jury may determine the child’s [subjective]
capacity, if any, to perceive and avoid the risk.” Peterson, 316
N.W.2d at 873. “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.” Restatement (Second) of Torts
§ 283A cmt. b (Am. Law Inst. 1965). Second, having considered
the subjective factors, the jury must objectively determine “how
. . . a reasonable child of like capacity [would] have acted under
like circumstances.” 57A Am. Jur. 2d Negligence § 183 (2004)
(citing Peterson, 316 N.W.2d at 873). This is because “[i]f 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 . . . as is common to children
similarly qualified.” Restatement (Second) of Torts § 283A cmt. b
(Am. Law Inst. 1965). Thus, “[t]he particular child in question
can be found negligent only if his or her actions fall short of
what may reasonably be expected of children of similar
capacity.” 57A Am. Jur. 2d Negligence § 183 (2004) (citing
Peterson, 316 N.W.2d at 873).
¶11 Although Bol is correct that Campbell did not regard it as
his burden to establish Child’s age, intelligence, knowledge, and
20141133-CA 6 2016 UT App 58Bol v. Campbell
experience under the circumstances, the jury had before it
extensive evidence of Child’s “age, intelligence and experience”
and was thus well-situated to analyze Child’s “capacity, if any,
to perceive and avoid the risk” of harm occasioned by crossing
the street into oncoming traffic. See Peterson, 316 N.W.2d at 873.
Although “the circumstances under which [Child] has lived, and
his experience in encountering particular hazards” could have
left him ill-prepared to navigate the busy streets of Salt Lake
City, Child instead testified that notwithstanding his limited
experience in the United States at the time of the accident, he
was both aware of the danger posed by moving automobiles and
able to guard against that danger by watching for cars before
entering the street. See Restatement (Second) of Torts § 283A cmt.
b. (Am. Law Inst. 1965). Thus, Child had sufficient experience
“to understand the risks of [the] given situation,” and given that
experience, it was not unfair that the jury was allowed to
consider his role and responsibility in the accident as well as
whether “he [was] required to exercise such prudence in
protecting himself.” See id.
¶12 Moreover, during the course of the trial, Bol affirmed that
she had discussed with Child the dangers of moving vehicles as
well as the importance of safely crossing the road, including the
need to use crosswalks while doing so. She also indicated that
she believed that Child fully understood their discussion and
that he was aware of the danger posed by moving vehicles.
Child also admitted that he knew it was important to look both
ways before crossing. He explained that he did not do so on this
occasion because he had seen his sister look both ways before
crossing and he figured it was safe to follow her lead. In sum,
Bol’s evidence was sufficient to show that Child, even given his
subjective capacity—his “age, intelligence, knowledge, and
experience”—fully realized that oncoming traffic was
dangerous, warranting safety precautions known to Child, such
as looking both ways before entering the street, even though he
was not up to speed on the bicycle safety requirements of section
41-6a-1114 of the Utah Code with which his bicycle was not in
20141133-CA 7 2016 UT App 58Bol v. Campbell
compliance. And there was ample evidence from which the jury
could conclude that it was objectively unreasonable for Child not
to check for traffic before entering the roadway. 5 This evidence
was more than sufficient for the jury to conclude that Child’s
unreasonable behavior made him primarily responsible for his
own injuries. 6
¶13 Although Bol concedes that “[t]he trial court correctly
instructed the jury on the . . . standard of care applicable to
[Child],” she claims that the jury instructions conflicted with one
another and thus confused the jury such that it was left to devise
its own standard of care to apply to Child. “[A]lthough we
5. Bol also seems to argue that the “knowledge” element of the
duty-of-care standard applicable to children requires actual
knowledge of the statute that the child purportedly violated. But
regardless of a person’s knowledge of the existence of a safety
statute, “[i]t is a general rule of Utah law that violation of a
safety standard set by statute or ordinance constitutes prima
facie evidence of negligence.” Ryan v. Gold Cross Servs., Inc., 903
P.2d 423, 426 (Utah 1995). See also David G. Owen, Proving
Negligence in Products Liability Litigation, 36 Ariz. St. L.J. 1003,
1010 (2004) (“[L]iability flows merely from the defendant’s
breach of statute rather than from demonstrative proof of how
the defendant was at fault. That is, a plaintiff may establish a
breach of the duty of care without specific evidence showing
how the defendant’s actions were unreasonable, in how they
foreseeably exposed the plaintiff to an undue risk of harm.”).
6. Bol’s own expert acknowledged that “[i]f [Child] never looked
before crossing he’s got a lot of contribution to this accident” and
conceded further that Child’s “failure to look could be a cause of
the accident.” And even Bol’s counsel admitted at trial that Child
was somewhat negligent, stating, “I think it would be fair and
reasonable for you to find that [Child] has some responsibility
for causing this accident.”
20141133-CA 8 2016 UT App 58Bol v. Campbell
review a court’s ruling on a proposed jury instruction for
correctness, we look at the jury instructions ‘in their entirety and
will affirm when the instructions taken as a whole fairly instruct
the jury on the law applicable to the case.’” State v. Maestas, 2012
UT 46, ¶ 148, 299 P.3d 892 (quoting State v. Robertson, 932 P.2d
1219, 1231 (Utah 1997)) (internal citation omitted).
¶14 In light of Bol’s concession that the key jury instruction
correctly stated the applicable law, and our previous
determination that the trial court properly instructed the jury as
to both comparative negligence and Child’s violations of
applicable traffic laws, see supra ¶¶ 9–12, we conclude that the
trial court both properly denied Bol’s motion for a directed
verdict and properly sent the comparative negligence question
to the jury.
¶15 Finally, Bol suggests that Campbell may have been
required to introduce expert testimony as to how a reasonable
child raised in Child’s actual circumstances—in an African
refugee camp with little or no automobile traffic—would act
crossing an American street at night. But this suggestion is not
developed much beyond the mere making of it. Bol observes that
there are various standards of care applicable to doctors,
engineers, and other professionals. She then points out that
“[t]hese particular standards of care . . . typically also require
expert testimony.” We are apparently left to infer that a similar
rule should apply to a child’s standard of care. This argument is
inadequately briefed, and we decline to address it further. Smith
v. Smith, 1999 UT App 370, ¶ 8, 995 P.2d 14 (“An issue is
inadequately briefed when ‘the overall analysis of the issue is so
lacking as to shift the burden of research and argument to the
reviewing court.’”) (quoting State v. Thomas, 961 P.2d 299, 305
(Utah 1998)).
¶16 Affirmed.
20141133-CA 9 2016 UT App 58