O'Neil Wallace & Doyle, PC

June 13, 2019

 

Negligence (Minors) Update-- "Child's Play": Court of Appeals Upholds the Reasonable 13-year-old Standard Set Forth in Ray v. Swager.

Abuaita v Abuaita

Introduction

In a negligence action,minors will generally be held to the subjective child standard of care / duty,i.e. whether the child acted with the degree of care that would be reasonably expected of a child of similar age, intelligence, capacity and experience. However, when there are no facts to support these factors in the record, the applicable standard is that of an average child of the same age as the party to which the standard is applied.

The recreational activities doctrine applies broadly to activities where the individuals temporarily adopt a "set of rules that define [a] particular pastime or sport."In this case, the Court implied that the recreational activities doctrine applied because the children were performing their skit "according to the rules of the game" in which physical contact between the two (2) was contemplated.

In essence, the handling of future negligence claims involving two minor parties will be controlled by the duty of care owed by the minor parties' adherence to the rules of their recreational activity subject to the reasonable child standard.

Brief Synopsis of the Rule / Holding

Abutia v. Abutia is a case involving two (2) minor children, one (1) of which, nine (9) years old at the time, was injured when pushed to the ground by her cousin during a pretend robbery skit. The Court of Appeals applied the standard of care applicable to children – that of an average thirteen (13) year old in performing the skit when the record was devoid of any facts relevant to ability, intelligence and experience. The Court held that the Defendant did not breach the applicable standard of care because physical contact was contemplated between the parties to the skit. This fact also barred Plaintiff's claims under the recreational activity doctrine most commonly known from the Ritchie-Gamesterv. City of Berkley case.

Factual Background

In this personal injury action for negligence, Plaintiff was a nine-year-old and Defendant was a 13-year-old who were performing a skit together when Plaintiff was injured.Plaintiff and Defendant were cousins who were performing their skit at an informal family gathering. The children planned that Defendant would knock Plaintiff down and he would pretend to steal Plaintiff's purse during the skit.Defendant allegedly pushed Plaintiff over by kneeing her leg during the skit.Plaintiff suffered injuries and brought an action for damages.

Analysis

The child duty / standard of care requires a court to asses "whether the child acted with the degree of care that would reasonable be expected of a child of similar age, intelligence,capacity, and experience under the circumstances of the case." Ray v Swager, 501 Mich 52, 75(2017). The Court noted that nothing in the record suggested that Defendant differed in any respect from an average 13-year-old boy who would be performing a skit. Therefore, the average thirteen(13) year-old boy standard was appropriate. The Defendant did not breach his duty of care because physical contact was envisioned by the children when they were performing their skit and the Defendant was supposed to forcibly remove a purse from the Plaintiff.

As an alternative ground for upholding the trial court's grant of summary disposition the Court held that Defendant did not engage in reckless conduct as required by the recreational activities doctrine. The recreational activities doctrine applies broadly and to activities where the individuals temporarily adopt a "set of rules that define [a] particular pastime or sport." In this case, the Court implied that the recreational activities doctrine applied because the children were performing their skit "according to the rules of the game." These rules required Defendant to engage in some physical conduct and remove a purse from the Plaintiff. Because Defendant's conduct was within those parameters, it was not reckless.


 

  • Premises Liability Update--Court of Appeals Expands Defenses for Landlords to Statutory Slip-and-Fall Claims Y ork v Berger Realty Group, Inc. Introduction The Open and Obvious Doctrine is not a...
    Published: 6/13/2019
  • No-Fault Update—Mayor of Detroit Pursues Action to Declare the Michigan No-Fault Act Unconstitutional Duggan v. McPharlin Introduction Detroit Mayor Mike Duggan filed an action to have the...
    Published: 4/26/2019
  • No-Fault Update--The Michigan Court of Appeals Reviews Voluntary Payments of an Insurer as Admissions of an Injury Ross v Dyment , Dkt. No. 341273 (Mich Ct. App. March 14, 2019) Introduction...
    Published: 4/18/2019
  • No-Fault Update—The Michigan Court of Appeals Reviews Balance Bills and Fraud in Personal Injury Protection ("PIP") Claims The Michigan Court of Appeals recently issued two opinions impacting...
    Published: 3/15/2019