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The Parental Negligence Doctrine

Sean W. Shirley
Balch & Bingham LLP
1910 Sixth Ave N Ste 1500
Birmingham, AL 35203-4642
(205) 226-8761
(205) 488-5604 [fax]
sshirley@balch.com

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Sean W. Shirley is a Partner in the Birmingham, Alabama, office of Balch & Bing-
ham LLP. As a member of the firm’s Litigation section, Mr. Shirley’s practice concen-
trates on casualty litigation, including toxic and environmental torts, product liability,
personal injury and wrongful death. Mr. Shirley has represented a wide-range of cli-
ents, including Fortune 500 chemical companies, a child restraint system manufac-
turer, public utility companies, public housing authorities, and a manufacturer of
industrial and residential wood products. He is the vice chair of the Children’s Prod-
ucts Specialized Litigation Group of DRI’s Product Liability Committee.
The Parental Negligence Doctrine

Table of Contents
I. Alabama................................................................................................................................................. 387
II. Alaska.................................................................................................................................................... 389
III. Arizona.................................................................................................................................................. 389
IV. Arkansas................................................................................................................................................ 390
V. California............................................................................................................................................... 391
VI. Canada................................................................................................................................................... 393
VII. Colorado................................................................................................................................................ 395
VIII. Connecticut............................................................................................................................................ 397
IX. Delaware................................................................................................................................................ 398
X. Florida.................................................................................................................................................... 399
XI. Georgia................................................................................................................................................... 401
XII. Hawaii.................................................................................................................................................... 403
XIII. Idaho...................................................................................................................................................... 403
XIV. ILLINOIS............................................................................................................................................... 405
XV. Indiana................................................................................................................................................... 408
XVI. Iowa........................................................................................................................................................ 411
XVII. Kansas.................................................................................................................................................... 413
XVIII. Kentucky................................................................................................................................................ 415
XIX. Louisiana............................................................................................................................................... 416
XX. Maine..................................................................................................................................................... 418
XXI. Maryland............................................................................................................................................... 419
XXII. Massachusetts........................................................................................................................................ 421
XXIII. Michigan................................................................................................................................................ 423
XXIV. Minnesota.............................................................................................................................................. 424
XXV. Mississippi............................................................................................................................................. 427
XXVI. Missouri................................................................................................................................................. 429
XXVII. Montana................................................................................................................................................. 431
XXVIII. Nebraska............................................................................................................................................... 432
XXIX. Nevada................................................................................................................................................... 434
XXX. New Hampshire..................................................................................................................................... 436
XXXI. New Jersey.............................................................................................................................................. 437
XXXII. New Mexico........................................................................................................................................... 439
XXXIII. New York................................................................................................................................................ 440
XXXIV. North Carolina...................................................................................................................................... 444
XXXV. North Dakota......................................................................................................................................... 445
XXXVI. Ohio...................................................................................................................................................... 447
XXXVII. Oklahoma............................................................................................................................................ 448
XXXVIII. Oregon................................................................................................................................................ 450
The Parental Negligence Doctrine  v  Shirley  v  385
XXXIX. Pennsylvania......................................................................................................................................... 451
XL. Rhode Island.......................................................................................................................................... 452
XLI. South Carolina....................................................................................................................................... 453
XLII. South Dakota......................................................................................................................................... 455
XLIII. Tennessee............................................................................................................................................... 456
XLIV. Texas...................................................................................................................................................... 458
XLV. Utah....................................................................................................................................................... 460
XLVI. Vermont................................................................................................................................................. 460
XLVII. Virginia.................................................................................................................................................. 461
XLVIII. Washington............................................................................................................................................ 462
XLIX. West Virginia.......................................................................................................................................... 462
L. Wisconsin.............................................................................................................................................. 463
LI. Wyoming................................................................................................................................................ 465

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The Parental Negligence Doctrine
The following is a survey of the parental negligence doctrine and its viability and application in the
United States and Canada. This material is designed as a reference guide for the key issues that relate to the
doctrine and is not designed as an authoritative treatise on the subject. The authors for each respective state
and province and their firms are identified with this material. This material could not have been compiled
without their tireless efforts.

I. Alabama
Sean W. Shirley
Thomas R. DeBray, Jr.
Balch & Bingham LLP
ACCEPTANCE OF THE DOCTRINE: Yes, partially.
Under Alabama law, a parent’s negligence cannot be imputed to a child so as to preclude an action by
the child or for its benefit against a third party whose negligent act has injured the child. E.g., Pilkington v. Peking
Chinese Rest., Inc., 596 So. 2d 586, 589 (Ala. 1992) (citing Nunn v. Whitworth, 545 So. 2d 766, 767 (Ala. 1989))
(emphasis added).
However, in an action for wrongful death of a minor, the contributory negligence of the parent pre-
cludes recovery unless the defendant is guilty of more culpable conduct than ordinary negligence, regardless
of whether the parents or the personal representative brings the action. E.g., Peoples v. Seamon, 31 So. 2d 88, 89
(Ala. 1947) (noting that in a suit by a parent in his capacity as such under Alabama’s wrongful death of a minor
statute, his contributory negligence is a good defense); Jenelle Mims Marsh & Charles W. Gamble, Alabama Law
of Damages §37:4 (Oct. 2009), available at Westlaw AL-DAMAGES §37:4.
APPLICATION OF THE DOCTRINE: Contributory Negligence
The doctrine is applied through the state judiciary’s adherence to the principles of contributory neg-
ligence. E.g., Brown v. Piggly-Wiggly Stores, 454 So. 2d 1370, 1372 (Ala. 1984) (noting that Alabama applies the
doctrine of traditional contributory negligence). A plaintiff who negligently contributes to her own injury can-
not recover whatsoever in a negligence action, regardless of whether the defendant was also negligent. E.g.,
QORE, Inc. v. Bradford Bldg. Co., 25 So. 3d 1116, 1126 (Ala. 2009) (emphasis added). Therefore, if a parent’s neg-
ligence contributed to the death of a child, the parent’s contributory fault completely bars him from recovery in
a wrongful death action brought by the parent. E.g., Peoples v. Seamon, 31 So. 2d 88, 89 (Ala. 1947); Jenelle Mims
Marsh & Charles W. Gamble, Alabama Law of Damages §37:4 (Oct. 2009), available at Westlaw AL-DAMAGES
§37:4.
It should be remembered, though, that the contributory negligence of a parent will not be imputed to
the child so as to preclude or limit recovery in actions brought by the child or for its benefit. E.g., Pilkington v.
Peking Chinese Rest., Inc., 596 So. 2d 586, 589 (Ala. 1992) (citing Nunn v. Whitworth, 545 So. 2d 766, 767 (Ala.
1989)).
BURDEN OF PROOF: Burden of Proof Rests Upon the Defendant
Contributory negligence is an affirmative defense, and the burden of proof lies with the defendant.
H.R.H. Metals, Inc. v. Miller, 833 So. 2d 18, 26 (Ala. 2002) (noting that the trial court’s instruction to the jury
that “contributory negligence is an affirmative defense, and the defendant has the burden of proving that
defense to your reasonable satisfaction” was proper).

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To prove contributory negligence at trial, the defendant must merely establish to the fact finder that
the plaintiff failed to exercise reasonable care. E.g., Horn v. Fadal Machining Ctrs., LLC, 972 So. 2d 63, 75 (Ala.
2007). However, if the defendant seeks to establish the contributory negligence of the plaintiff as a matter of
law, perhaps through moving for summary judgment, the defendant must meet a higher burden. Id. To prove
contributory negligence as a matter of law, the defendant must show that the plaintiff put himself in harm’s way,
and that the plaintiff had a conscious appreciation of the danger when the incident occurred. Horn, 972 So. 2d
at 75 (quoting Hannah v. Gregg, Bland & Berry, Inc., 840 So. 2d 839, 860-61 (Ala. 2002)).
QUESTION OF LAW OR FACT: Generally a Question of Fact
Generally, the issue of whether a party is contributorily negligent is a question of fact for the jury to
decide. E.g., City of Lanett v. Tomlinson, 659 So. 2d 68, 71 (Ala. 1995) (citing Adams v. Coffee County, 596 So. 2d
892, 895 (Ala. 1992)). However, the issue of contributory negligence can be a question of law for the court to
determine, but only when the facts are such that all reasonable persons must reach the same conclusion on the
issue. E.g., Ex parte Bergob, 855 So. 2d 534, 535 (Ala. 2003).
LEGAL AUTHORITY: Statutory and Leading Case Authority
Alabama statutory law provides plaintiffs with a specific cause of action for the wrongful death of a
minor. Ala. Code §6-5-391 (2010). However, Alabama case law, see Peoples v. Seamon, 31 So. 2d 88, 89 (Ala.
1947), holds that in causes of action brought pursuant to this statute, the contributory negligence of the parent
plaintiff can prevent her from recovering against a defendant whose conduct did not exceed that of negligence.
SPECIAL CONSIDERATIONS: Issues of Pleading and Foreseeability
The Alabama Rules of Civil Procedure require that when “pleading to a preceding pleading, a party
shall set forth affirmatively … contributory negligence … and any other matter constituting an avoidance
or affirmative defense.” Ala. R. Civ. P. 8(c). Still, if the defendant fails to plead contributory negligence in its
Answer, the defendant may be allowed to amend its Answer to assert contributory negligence as an affirmative
defense. Ala. R. Civ. P. 15(a).
Although it is inappropriate to instruct the jury on the doctrine of contributory negligence in an
action brought by a child or for its benefit, it may be permissible to charge the jury on the issue of foresee-
ability of the parent’s conduct. Williams v. BIC Corp., 771 So. 2d 441, 450-51 (Ala. 2000) (permitted the trial
court to charge the jury that the parents’ failure to supervise their child, who was injured in a fire caused by the
child’s playing with a lighter manufactured by the defendant, was unforeseeable by the defendant, despite the
plaintiff ’s argument that the charge constituted a disguised argument of parental contributory negligence in an
action brought on behalf of the child). Whether a jury may be instructed or charged on the matter of the fore-
seeability of a parent’s conduct depends upon the facts of the particular case. Williams, 771 So. 2d at 450-51.
The factual circumstances surrounding the underlying action must be so that an instruction or charge on fore-
seeability does not constitute merely a disguised way of authorizing a jury to deny recovery to a child because
of a parent’s contributory negligence. Id. To instruct a jury on foreseeability, there must be compelling evidence
that both the danger at issue was obvious and that the parent’s failure to exercise reasonable care was egregious
and systematic. Id. If a defendant can meet such factors, it can successfully argue to the jury that it is not liable
in an action brought on behalf of a child because the proximate cause of the child’s injury was the parent’s fail-
ure to supervise, and such conduct of the parent was not foreseeable. See id.
JURY INSTRUCTION: Contributory Negligence and Foreseeability
Alabama Pattern Jury Instructions regarding contributory negligence are available for review. 2 Ala.
Pattern Jury Instr. Civ. §30.00, Definition, available at Westlaw APJI §30.00; 2 Ala. Pattern Jury Instr. Civ. §30.02,
Effect of Contributory Negligence on Simple Negligence, available at Westlaw APJI §30.02; 2 Ala. Pattern Jury

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Instr. Civ. §30A.00, Contributory Negligence, available at Westlaw APJI §30A.00. A jury may also be charged on
the issue of the foreseeability of a parent’s conduct. See Williams v. BIC Corp., 771 So. 2d 441, 448 (Ala. 2000).

II. Alaska
Michael C. Osborne
ArcherNorris
ACCEPTANCE OF THE DOCTRINE: No.
In Sinclair v. Okata, 874 F.Supp. 1051, 1059, n. 55 (D.Alaska 1994), the District Court, applying Alaska
law, observed that no Alaska Court had held that a parent’s alleged negligence would be imputed to an injured
child who sues for damages.
APPLICATION OF THE DOCTRINE:
Alaska is a pure comparative negligence state. Alaska Stat. §09.17.060.
Prior to the 1986 Tort Reform Act, Alaska allowed comparative negligence as a defense in products lia-
bility actions only under limited circumstances. Smith v. Ingersoll-Rand Company, 14 P.3d 990, 992-993 (Alaska
2000). Under the 1986 Tort Reform Act, contributory fault chargeable to the plaintiff diminishes proportionally
the amount awarded as compensatory damages, but does not bar recovery. Id., at 994. The Act applies to strict
products liability cases. Id.

III. Arizona
Patrick X. Fowler
Snell & Wilmer L.L.P.
ACCEPTANCE OF THE DOCTRINE: Yes.
A parent who is negligent in causing an injury to, or the death of, their child may be subject to a reduc-
tion of any damages award levied against the defendant in proportion to the parent’s level of fault. See, e.g., Her-
nandez v. Castles N’ Coasters, Inc., No. 1 CA-CV 08-0715, 2009 WL 2461296, *1 (Ariz. Ct. App. 2009); Picaso v.
Tucson Unified School Dist., 217 Ariz. 178, 181, 171 P.3d 1219, 1222 (Ariz. 2007); A.R.S. §12-2501, et. seq. (2010).
Additionally, Arizona has abolished parent-child immunity and therefore children can sue their par-
ents in tort, as well as parental fault being considered for comparative negligence purposes. Broadbent by
Broadbent v. Broadbent, 184 Ariz. 74, 81, 907 P.2d 43, 50 (Ariz. 1995). The Broadbent court established a “rea-
sonable parent test,” in which a parent’s conduct is judged “by whether that parent’s conduct comported with
that of a reasonable and prudent parent in a similar situation.” Id.
APPLICATION OF THE DOCTRINE: Comparative Fault/Apportionment of Fault
The doctrine is applied through the principle of comparative negligence. The state of Arizona adheres
to the doctrine of pure comparative negligence. See, A.R.S. §12-2505 (2010); Zuern By and Through Zuern v.
Ford Motor Co., 188 Ariz. 486, 937 P.2d 676 (Ariz. Ct. App. 1996). No matter how much at fault a plaintiff is, he
or she is entitled to recover the percentage of fault attributed to any other party as opposed to no recovery. The
principles of comparative fault are applied through Arizona’s apportionment statute. A.R.S. §12-2506 (2010).
The fault of both parties and non-parties at fault are compared. Id.; Piner v. Superior Court In and For County of
Maricopa, 192 Ariz. 182, 188, 962 P.2d 909, 915 (Ariz. 1998).
BURDEN OF PROOF: Burden of Proof Rests Upon the Defendant

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Contributory negligence is an affirmative defense that must be specifically pleaded and proven by
the defendant. Reed v. Hinderland, 135 Ariz. 213, 215, 660 P.2d 464, 466 (Ariz. 1983). To prove the percentage
of fault that should be allocated to the plaintiff, the defendant must show that the negligent acts of the plain-
tiff proximately caused some of the injuries at issue. See Wareing v. Falk, 182 Ariz. 495, 499, 897 P.2d 1381, 1385
(Ariz. Ct. App. 1995).
QUESTION OF LAW OR FACT: Question of Fact
In determining the “percentage of fault” of each defendant, the fact-finder must assess the fault of any
parties, including nonparties, who have been timely and properly designated and who contributed to the inju-
ries or damages. Zuern By and Through Zuern v. Ford Motor Co., 188 Ariz. 486, 490, 937 P.2d 676, 680 (Ariz. Ct.
App. 1996); A.R.S. §12-2506(B) (2010).
LEGAL AUTHORITY: Statutory and Leading Case Authority
See above for case and statutory citations.
SPECIAL CONSIDERATIONS: Pleading Issues
The Arizona Rules of Civil Procedure mandate that “[i]n pleading to a preceding pleading, a party
shall set forth affirmatively . . . contributory negligence . . . and any other matter constituting an avoidance
or affirmative defense.” Ariz. R. Civ. P. 8(c). See also, Reed v. Hinderland, 135 Ariz. 213, 215, 660 P.2d 464, 466
(Ariz. 1983) (contributory negligence is an affirmative defense that must be specifically pleaded and proven by
the defendant). Thus, contributory negligence, like all affirmative defenses, should be pled in the defendant’s
answer to the complaint. Regardless, if the defendant fails to plead contributory negligence in its Answer, the
defendant may be allowed to amend its Answer to assert contributory negligence as an affirmative defense,
consistent with the rules. Ariz. R. Civ. P. 15(a).
JURY INSTRUCTION: Apportionment of Fault and Comparative Negligence
Revised Arizona Jury Instructions - RAJI (CIVIL) 3d Fault 5; A.R.S. §12-2506(F)(2) - Statement of
Claims, Definition of Fault; Definition of Negligence.

IV. Arkansas
Carson Tucker
James O. Howe
Wright, Lindsey & Jennings, LLP
ACCEPTANCE OF THE DOCTRINE: Yes, partially.
Generally, the negligence of a parent is not imputed to the child. Miles v. St. Louis, I. M. & S. Ry. Co., 90
Ark. 485, 119 S.W. 837 (Ark. 1909); and the negligence of a parent is not imputed to the child’s estate. Nashville
Lumber Co. v. Busbee, 100 Ark. 76, 139 S.W. 301 (Ark. 1911). “However, in the death of a minor, the fault of one
parent is imputed to the innocent parent to the extent of reducing, but not barring, recovery since they share a
community of interest in the supervision of the child.” Howard W. Brill, Arkansas Law of Damages, §34:1 at 671
(5th ed. 2004) (endnotes omitted).
APPLICATION OF THE DOCTRINE: Comparative Fault/Apportionment of Fault
A jury finding that a parent is more than 50 percent at fault will not bar recovery. Stull v. Ragsdale, 620
S.W. 2d 264, 273 Ark. 277 (Ark. 1981). An innocent parent’s award will be reduced by the extent that the other is
found at fault. Id. That is, if a negligent parent is found to be 75 percent at fault, the innocent parent will receive
only 25 percent of the jury’s award. Id.

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BURDEN OF PROOF: Burden of Proof Rests Upon the Defendant
Contributory negligence is an affirmative defense, and the defendant has the burden to prove that
another party was negligent. Jaramillo v. Adams, 100 Ark. App. 335, 268 S.W.3d 351 (Ark. App. 2007), generally
citing Marx v. Huron Little Rock, 88 Ark. App. 284, 198 S.W.3d 127 (Ark. App. 2004).
QUESTION OF LAW OR FACT: Generally a Question of Fact
In Skinner v. R.J. Griffin & Co., 855 S.W.2d 913, 313 Ark. 430 (Ark. 1993), the majority held that specific
evidence of a plaintiff ’s negligence must be presented before a jury instruction on such is warranted; but once
evidence of negligence on a party other than the defendant has been presented, “apportionment of fault under
Arkansas’ comparative fault statute becomes a matter within the sole province of the finder of fact. Lockett v.
Int’l Paper Co., 871 F.2d 82 (8th Cir. 1989).
LEGAL AUTHORITY: Statutory and Leading Case Authority
Case law supporting not imputing parental negligence to children dates back to the turn of the cen-
tury. Miles v. St. Louis, supra. There are no Arkansas statutes addressing the issue. In 1981, the court took up
whether a negligent parent’s fault may be imputed to the other as a matter of first impression in Stull, supra.
SPECIAL CONSIDERATIONS: Issues of Pleading
A defendant should plead comparative fault in his answer. Rule 8(c) provides that affirmative defenses,
such as comparative fault, “shall be set forth affirmatively” in responding to a complaint. Ark. R. Civ. P. 8(c).
However, Rule 15(a) states, “a party may amend his pleadings at any time without leave of the court,” unless
“prejudice would result or the disposition of the cause would be unduly delayed.” Ark. R. Civ. P. 15(a). The
Reporter’s Note to Rule 15 explains that the court has wide latitude in allowing additional pleadings.
JURY INSTRUCTION: Apportionment of Fault and Comparative Negligence
Arkansas Model Jury Instructions regarding comparative fault are available for review. AMI 2101 Civ.
2009 ed. Non-model instructions should be given only when the model instructions do not accurately state
the applicable law or when an essential element of instruction is missing. Nelson v. Stubblefield, 2009 Ark. 256,
308 S.W.3d 586 (Ark. 2009). Further, model instructions for comparative fault are not to be used when a case is
submitted on interrogatories. “In cases where the issue of comparative fault is submitted to the jury by an inter-
rogatory, counsel for the parties shall be permitted to argue to the jury the effect of an answer to any interroga-
tory.” Ark. Code Ann. §16-64-122(d); see also Marx v. Huron Little Rock, supra (reversible error when trial court
submitted the case on special interrogatories without allowing counsel to argue the effect of the comparative
fault interrogatories).

V. California
Merton Howard
Hanson Bridgett LLP
Acceptance of the Doctrine: Yes, partially.
Parents’ negligence is not imputed to their child in the child’s action for general damages resulting from
personal injury. (See Hasson v. Ford Motor Co. (1977) 19 Cal. 3d 530, 552.) However, the negligence of a par-
ent may nevertheless be relevant in determining whether other persons are liable for such injuries. (See Akins v.
County of Sonoma (1967) 67 Cal. 2d 185, 198; Morningred v. Golden State Co. (1961) 196 Cal. App. 2d 130, 138.)
Insofar as the minor’s action seeks to recover special damages for medical expenses paid by his or her parents for
the minor’s benefit, the action is subject to the defense of comparative negligence on the part of the minor’s par-
ents. (See Mattox v. Isley (1952) 111 Cal. App. 2d 774, 779; Morningred, 196 Cal. App. 2d at p. 139.)

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In a wrongful death action, case law allows for the negligence of a parent (as an heir at law) who con-
tributed to the minor’s death to reduce the parent’s recovery in proportion to his or her percentage of fault. (See
Smith v. Americania Motor Lodge (1974) 39 Cal. App. 3d 1, 8 (case decided prior to Li v. Yellow Cab Co. (1975)
13 Cal. 3d 804 (infra), holding that parent’s contributory negligence in causing death of child would bar action
against third party for wrongful death of child); see also Kasunich v. Kraft (1962) 201 Cal. App. 2d 177, 185 (case
decided prior to Li, holding that parent’s contributory negligence in causing death of child would bar action
against third party for wrongful death of child).)
Application of the Doctrine: Pure Comparative Fault
The doctrine is applied though California’s comparative fault decisional law. The California Supreme
Court in Li v. Yellow Cab Co. (1975) 13 Cal. 3d 804, 824, adopted a “pure” form of comparative negligence, under
which there is no threshold level of fault that a plaintiff must remain below in order to recover damages. This
changed what had been the prior rule in California, wherein one’s negligence was a total bar to recovery.
An award for wrongful death must be reduced by the proportionate share of the decedent’s negligence.
(Cavallaro v. Michelin Tire Corp. (1979) 96 Cal. App. 3d 95, 109-110.) Moreover, the comparative negligence of a
wrongful death plaintiff (in this case, the deceased minor’s parent or parents) reduces his or her recovery pro-
portionately. (See Southern Pac. Transp. Co. v. State of California (1981) 115 Cal. App. 3d 116, 119-121.)
It is worth noting that any impact to one plaintiff ’s recovery for his or her negligence is not imputed
to any of the other plaintiffs. (See Perkins v. Robertson (1956) 140 Cal. App. 2d 536, 544 (decided under former
law that made contributory negligence bar to recovery).) Even under the prior existing contributory fault bar
to recovery, the non-negligent parent, as decedent’s heir at law, could maintain a cause of action for wrongful
death against the negligent parent. Mayo v. White (1986) 178 Cal. App. 3d 1083, 1092.
Burden of Proof: Defendant has the Burden
Prior to the advent of comparative negligence, the burden of proof was on the defendant to demon-
strate contributory negligence by the plaintiff. This burden has not changed with the introduction of compara-
tive fault. It remains the burden of the party advocating comparative fault to meet the evidentiary burden. (See
Drust v. Drust (1980) 113 Cal. App. 3d 1, 6.)
Question of Law or Fact: Question of Fact
Under comparative negligence, even if a defendant establishes, as a matter of law, that the plaintiff was
negligent and that the negligence was a proximate cause of the plaintiff ’s injury, the apportionment of the neg-
ligence between plaintiff and defendant remains an issue of fact. Thus, cases involving comparative negligence
that may be determined as a matter of law should be even rarer than they were under contributory negligence.
(Maxwell v. Colburn (1980) 105 Cal. App. 3d 180, 186.)
Legal Authority: Action is Statutory; Comparative Fault is Decisional Law
A wrongful death action in California is entirely statutory; Code of Civil Procedure section 377.60
“creates a new cause of action in favor of the heirs as beneficiaries, based upon their own independent pecuni-
ary injury suffered by loss of a relative, and distinct from any the deceased might have maintained had he sur-
vived.” Horwich v. Superior Court 21 Cal. 4th 272, 283 (2009)
Case law allows for the negligence of a parent (as an heir under this section) who contributed to the
minor’s death to reduce the parent’s recovery in proportion to his or her percentage of fault. See Smith v. Ameri-
cania Motor Lodge 39 Cal. App. 3d 1, 8 (1974); Li v. Yellow Cab Co. 13 Cal. 3d 804, 824 (1975)
Special Considerations: Pleading and Apportionment
Pleading:

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The defendant has the burden of pleading and proving that the plaintiff was negligent and that the
plaintiff ’s negligence was a proximate cause of the accident and resulting injuries. (Simmons v. Wexler (1979)
94 Cal. App. 3d 1007, 1014.) However, the answer to the complaint need not plead any specific facts amounting
to the plaintiff ’s comparative fault. This pleading requirement simply means that a defendant may allege that
the plaintiff was negligent in and about those matters alleged in the complaint, and that such negligence proxi-
mately contributed to his injury. (Singer v. Superior Court (1960) 54 Cal. 2d 318, 323-324.)
Apportionment:
The parent’s comparative negligence must be apportioned along with the combined negligence of
all the tortfeasors (including any plaintiffs), whether or not joined as parties, whose negligence proximately
caused or contributed to plaintiff ’s injuries. (See American Motorcycle Assn. v. Superior Court of Los Angeles
County (1978) 20 Cal. 3d 578, 589 n.2.) In American Motorcycle, the Court stated that in determining to what
degree the injury was due to the fault of the plaintiff, it is logically essential that the plaintiff ’s negligence be
weighed against the combined total of all other causative negligence. (Id.) Furthermore, inasmuch as a plain-
tiff ’s actual damages do not vary by virtue of the particular defendants who happen to be before the court at
trial, the Court did not feel that the damages that a plaintiff may recover against defendants who are jointly and
severally liable should fluctuate in such a manner. (Id.)
Jury Instructions: Comparative Fault and Apportionment
California jury instructions regarding the apportionment of fault, as well as assessing the impact of
the comparative fault of a plaintiff (in this case a negligent parent) can be found online, listed under the Cali-
fornia Civil Jury Instructions (“CACI”) 400 series on Negligence. (See CACI No. 405 - Comparative Fault of
Plaintiff and CACI No. 406 - Apportionment of Responsibility.) CACI No. 3800 addresses the assessment of
comparative fault between and among tortfeasors. Additionally, CACI No. 3960 provides a general verdict form
for the assessment of the plaintiff ’s comparative fault.
See: http://www.courtinfo.ca.gov/jury/civiljuryinstructions/index.htm

VI. Canada
Lindsay Lorimer
McMillan
Parental Negligence
In contrast with some U.S. jurisdictions, Canadian law does not recognize a distinct doctrine of paren-
tal negligence, nor does it provide for parental tort immunity through blocking statutes. No special rules or
restrictions apply to the scope of litigation involving parent defendants. Parents may be sued for contributory
negligence in the same manner as any others who have contributed to the wrongdoing.
Joint and Several Liability
Defence counsel should be aware that provincial legislation provides for joint and several liability in
circumstances where multiple parties are responsible for an injury. Although the details may vary between
provinces, the general rule is that a plaintiff is entitled to seek the entire damage award from any responsible
defendant, less any harm attributed to the plaintiff ’s contributory negligence, regardless of that defendant’s
share of the liability. That defendant may then seek contribution from other responsible persons for their shares
of the liability. Since joint and several liability is statutory, a party seeking to rely on the doctrine must plead the
appropriate provincial act.

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The practical outcome of the applicability of joint and several liability is that, if the parents are insol-
vent or the harm is so severe that high damages are awarded (particularly where there are very high future care
costs), the parents’ insurance, if any, will be overwhelmed, and the monetary effect of their contributory negli-
gence will be minimized.
Vicarious Parental Responsibility
Three Canadian provinces—Ontario, Manitoba and British Columbia—have enacted legislation
establishing vicarious parental responsibility when children “take, damage, or destroy property”. The Mani-
toba and British Columbia statutes need to be pleaded in order to apply, but Ontario’s Parental Responsibility
Act does not. There are no special notice requirements.
All three Acts dictate that the onus lies on the parent to prove that an appropriate standard of care was
met: that he or she was exercising “reasonable supervision over the child” or “made reasonable efforts to pre-
vent or discourage the child from engaging in the [tortious] activity…”. The common law standards of care
applicable in the rest of Canada, and for non-property torts in Ontario, Manitoba and British Columbia, are
largely comparable to the legislated standards. Both Ontario and British Columbia’s Parental Responsibility Acts
specify that there is joint and several liability between defendant parents.
Claims by Unborn Persons
The Supreme Court of Canada has created an exception to the general availability of parental negli-
gence actions. In Dobson v Dobson, a divided court prohibited an infant plaintiff from bringing a negligence
action against his mother for injuries sustained in utero. Subsequent judgments have also used Dobson to
bar third party defendants’ crossclaims for parental contributory negligence. For example, in Hall (Litigation
Guardian of) v Kellar, the plaintiff child suffered injuries in utero due to a motor vehicle accident. The child
brought an action against the mother and several other involved parties, but the court granted the mother’s
application for an order dismissing the child’s claim and all crossclaims arising therefrom, ruling that they were
barred by Dobson.


This was the case in Sandhu v Wellington Place Apartments, 2008 ONCA 215, where an infant plaintiff who suf-
fered catastrophic brain damage but retained a normal life expectancy was awarded total damages, interest and
costs in excess of $17 million—the highest personal injury damage award ever given in Ontario.

For non-property torts, the common law of contributory negligence still applies. Actions relying on these pa-
rental responsibility regimes must be commenced in small claims court, with all the attendant procedural and
jurisdictional limitations; see Court of Queen’s Bench Small Claims Practices Act, CCSM c 285; Court of Justice Act,
RSO 1990, c C43; Small Claims Act RSBC 1996, c 430.

[1999] 2 SCR 753.

(2002), 23 CCLT (3d) 40 (Ont Sup Ct J); see also R (B) v R (L), 2004 ABQB 93; Preston v Chow, 2007 MBQB
318.

394  v  Product Liability Conference  v  April 2011


Province / Territory Statutory Authority Statutory Text
Alberta Contributory Negligence Act, RSA The provisions are substantially identi-
2000, c C-27, s 2(2) cal in almost every province and read
British Columbia Negligence Act, RSBC 1996, c 333, largely as follows:
s 4(2); Parental Responsibility Act, “Where damages have been caused or
SBC 2001, c 45 (creates vicarious contributed to by the fault or neglect
parental liability for torts committed of two or more persons, the court shall
by children) determine the degree in which each
Manitoba Tortfeasors and Contributory Negligence of such persons is at fault or negli-
Act, CCSM c T90, s 5; Parental gent, and, where two or more persons
Responsibility Act, CCSM c P8 (creates are found at fault or negligent, they are
vicarious parental liability for torts jointly and severally liable to the per-
committed by children) son suffering loss or damage for such
fault or negligence, but as between
New Brunswick Contributory Negligence Act, RSNB
themselves, in the absence of any con-
1973, c C-19, s 2(2)
tract express or implied, each is liable to
Newfoundland and Contributory Negligence Act, RSNL make contribution and indemnify each
Labrador 1990, c C-33, s 3 other in the degree in which they are
Northwest Territories Contributory Negligence Act, RSNWT respectively found to be at fault or neg-
1988, c C-18, s 3(2) ligent.” (from the Ontario statute)
Nova Scotia Contributory Negligence Act, RSNS * In Newfoundland & Labrador,
1989, c 95; Tortfeasors Act, RSNS defendants are jointly and individually
1989, c 471 liable, rather than jointly and severally.
Nunavut Contributory Negligence Act, RSNWT * The Quebec Civil Code reads: “The
(Nu) 1988, c C-18, s 3(2) obligation to make reparation for injury
Ontario Negligence Act, RSO 1990, c N1, s 1; caused to another through the fault of
Parental Responsibility Act, 2000, SO two or more persons is solidary where
2000, c 4 (creates vicarious parental the obligation is extra-contractual.”
liability for torts committed by children) The Department of Justice Canada has
Prince Edward Island Contributory Negligence Act, RSPEI opined that the civil law solidary obli-
1988, c C-21, s 2(1) gation is equivalent to a “joint and sev-
eral” obligation.
Quebec Art 1526 CCQ
Saskatchewan Contributory Negligence Act, RSS 1978,
c C-31, s 3(2)
Yukon Contributory Negligence Act, RSY 2002,
c 42, s 2

VII. Colorado
John W. Grund
Grund Dagner, P.C.
ACCEPTANCE OF THE DOCTRINE: Yes, where: (1) the parent’s conduct is willful or wanton; or (2)
the injury resulted from a parent’s conduct in a business or employment capacity.

The Parental Negligence Doctrine  v  Shirley  v  395


Colorado has adopted the qualified parental-immunity doctrine which bars a child from suing a par-
ent for simple negligence. Terror Mining Co. v. Roter, 866 P.2d 929 (Colo. 1994) (other Colorado cases cited);
Paris ex rel Paris v. Dance, 194 P.3d 404, 407 (Colo. App.), cert, denied, 2008 WL 5773905 (Colo. Oct. 14, 2008).
Despite the general acceptance of the qualified parental-immunity doctrine, this immunity will be
waived if a parent’s conduct is willful and wanton. Horton v. Reaves, 186 Colo. 149, 526 P.2d 304, 308 (1974). In
contrast to simple negligence, willful and wanton misconduct involves a purposeful act or omission which the
actor should have realized was dangerous to another, but nonetheless was committed recklessly and without
regard to the other’s safety. See generally Steeves v. Smiley, 354 P.2d 1011 (1960).
Parental immunity will also be waived if the injury results from parental action in a business or
employment capacity. Terror Mining Co., 866 P.2d 929. “[T]he dispositive issue is whether the parent’s negli-
gence arises out of the parent’s pursuit of his or her business or employment activities, and not whether the
parent was simultaneously engaged in conduct that theoretically could be classified as a parenting act.” Id. at
937. The rationale for the business or employment exception is that a person’s business or employment activi-
ties usually are sufficiently separate and distinct from the person’s role as a parent and, thus, deserve no special
protection under parental immunity. Trevarton v. Trevarton, 151 Colo. 418, 378 P.2d 640, 643 (1963).
APPLICATION OF THE DOCTRINE: Apportionment of Fault/Designation of Nonparty at Fault
Since 1986, when Colorado abolished joint-and-several liability (except in cases involving concert of
action/conspiracy), see §13-21-111.5, C.R.S., the doctrine is applied through the principle of apportionment of
fault. C.R.S. Section 13-21-111, C.R.S. is Colorado’s comparative-negligence statute, under which a plaintiff may
not recover at all unless the defendant’s/defendants’ negligence - together with the negligence or fault of any
nonparty, see §13-21-111.5), exceeds that attributable to the plaintiff. A parent’s negligence may not be imputed
to his or her minor child. Francis v. Dahl, 107 P.3d 1171 (Colo.App. 2005).
Section 13-21-111.5 allows a party to designate any nonparty that may be fully or partially at fault.
This designation must be made within 90 days of commencement (i.e., filing) of the lawsuit, and the courts
have held that these restrictions need to be strictly construed. See Paris, 194 P.3d at 405; see also Thomas v. Colo-
rado & E. R.R., 852 P.2d 1328 (Colo. App. 1993) A parent is not precluded from being designated as a nonparty
at fault in a simple negligence action brought on behalf of a child. This designation does not improperly attri-
bute the negligence of the parent to the child, but concerns the independent negligence of the parent. Paris, 194
P.3d at 408; see also Doering, ex rel. Barrett v. Copper Mtn., Inc., 259 F.3d 1202, 1215-16 (10th Cir. 2001).
BURDEN OF PROOF: Burden of Proof Rests on the Defendant
Comparative negligence is an affirmative defense that must be must be pled and proven by the
defendant. C.R.C.P. 8(c); Stevens v. Strauss, 364 P.2d 382 (1961). If a defendant is properly identified as a non-
party under §13-21-111.5(3)(b), and the plaintiff does not bring that party into the lawsuit, the defendant
bears the burden of proving the nonparty’s negligence and causation. Redden v. SCI Colo. Funeral Services, Inc.
38 P.3d 75 (Colo.2001). Of course, given a parent’s qualified immunity, even identify designated as a nonparty, a
parent may not be named as a defendant in an action brought by the child (absent one of the exceptions to the
immunity), so the defendant will usually have the burden of proving parental negligence or fault.
QUESTION OF LAW OR FACT: Question of Fact
Generally, issues of negligence, comparative negligence, and proximate cause are questions of fact for
the jury. Moseley v. Lamirato, 149 Colo. 440, 370 P.2d 250 (1961); Fay v. Kroblin Refrigerated Xpress, 644 P.2d 68
(Colo.App. 1981). Contributory negligence is rarely a question of law unless the facts are undisputed and a rea-
sonable person can draw but one inference from them. Moseley, 370 P.2d 250.
LEGAL AUTHORITY: See above for case and statutory citations.

396  v  Product Liability Conference  v  April 2011


SPECIAL CONSIDERATIONS: Issues of Pleading
Colorado Rule of Civil Procedure (C.R.C.P) 8(c) requires that when “pleading to a preceding pleading,
a party shall set forth affirmatively ... contributory negligence ... and any other matter constituting an avoid-
ance or affirmative defense.”
If the defendant fails to plead contributory/comparative negligence, the defendant may amend its
answer once as a matter of course at any time before a responsive pleading is filed. If a responsive pleading is
filed, a defendant may amend only by leave of court or by written consent of the adverse party. C.R.C.P. Rule
15(a).
Additionally, C.R.C.P. 15(b) permits amendments to the pleadings to conform to the evidence. These
motions may be made at anytime, even after judgment, but failure to amend does not affect the result of the
trial of the issues that were tried, but not properly pled. “If evidence is objected to at the trial on the ground that
it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do
so freely when the presentation of the merits of the action will be subserved thereby and the objecting party
fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or
defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evi-
dence.” C.R.C.P. 15(b).
JURY INSTRUCTIONS: Comparative Negligence; Fault of a Designated Nonparty; and Foreseeability
Colo. Jury Instr. Civil Chapter 9:
1) CJI-Civ. 9:21 - Forseeability Limitation;
2) CJI-Civ 9:22 - Elements of Liability-Comparative Negligence;
3) CJI-Civ 9:23 - Affirmative Defense-Comparative Negligence of the Plaintiff;
4) CJI-Civ 9:24 - Affirmative Defense-Negligence or Fault of Designated Nonparty;
5) CJI-Civ 9:25 - Negligence of Parents Not Imputable to Children;
6) CJI-Civ 9:26 - Comparative Negligence of Plaintiff;
7) CJI-Civ 9:28 - Comparative Negligence of Plaintiff-Single Defendant or Multiple Defendants-Des-
ignated Nonparty or Nonparties Involved;
8) CJI-Civ 9:29 -Elements-Multiple Defendants and One or More Designated Nonparties-No Negli-
gence or Fault of the Plaintiff;
9) CJI-Civ 9:30 - Willful Wanton Conduct or Willful and Reckless Disregard-Defined; and
10) CJI-Civ 9:31-Contributory Negligence of Parent and Assumption of Risk.

VIII. Connecticut
Vincent A. Errante, Jr.
Darger & Errante LLP
ACCEPTANCE OF THE DOCTRINE: No.
Under Connecticut law, when a child has been injured by a product and has brought a products lia-
bility claim against the manufacturer of the product, parental negligence is not a defense or a bar to a child’s
recovery. Kuzion v. Saybrook Country Bam, Inc., 2001 Conn. Super. Lexis 283 (2001); Diaz v. Tavares, 1993 Conn.
Super. Lexis 2839 (1993).

The Parental Negligence Doctrine  v  Shirley  v  397


IX. Delaware
Jane North
Deasey, Mahoney, Valentini & North
ACCEPTANCE OF THE DOCTRINE: No.
Parental negligence is not imputed to a minor child. A comparative negligence analysis applies with a
parent’s claim in a wrongful death action. In a survival action, a parent’s negligence does not diminish a minor
child’s claim, unless the parent’s negligence is a supervening cause. Delaware courts have held that a parent’s
negligence cannot be imputed to a minor child. McKeon v. Goldstein, 164 A.2d 260 (Del. 1960).
Parental negligence, however, has application in cases involving wrongful death of a minor. Parental
negligence may act to reduce or bar a claim by a parent in wrongful death actions, when parents are suing on
their own behalf for statutory damages which they suffered as a result of the death of a minor. 10 Del. C. §3725;
Frantz v. United States, 791 F. Supp. 445 (D. Del. 1992). In a wrongful death action, any negligence that may be
chargeable to a parent will reduce or eliminate the parent’s recovery pursuant to Delaware’s Comparative Negli-
gence Act, at 10 Del. C. §8132.
A parent’s negligent conduct has limited applicability in an action brought only on behalf of a child,
or in a survival claim. If a parent’s negligence is relevant to the minor child’s theory of liability, a defendant
may introduce evidence to establish that the parent’s negligence was the supervening cause of the minor child’s
injury. If the parent’s negligence was a proximate cause – but not a supervening cause – the parent’s negligence
does not provide a basis for reducing full payment to the minor child. Sears, Roebuck & Co. v. Huang, 652 A.2d
568 (Del. 1990); McKeon v. Goldstein, 164 A.2d 260 (Del. 1960).
APPLICATION OF THE DOCTRINE: Proximate Causation and Comparative Negligence.
Wrongful death beneficiaries institute suit on their own behalf for statutory damages which they suf-
fered as a result of the death of a minor. 10 Del. C. §3725. Delaware courts have held that a statutory death bene-
ficiary may be found liable for contributory negligence. Jones v. Pennsylvania R.R. Co., 123 A.2d 111 (Del. Super.
Ct. 1956). Thus, in a wrongful death action, any negligence which may be chargeable to a parent will reduce, or
eliminate, his or her recovery pursuant to Delaware’s Comparative Negligence Act, 10 Del. C. §8132. Delaware’s
Comparative Negligence Act provides that in all actions brought to recover damages for negligence which
results in death or injury to person or property, a plaintiff ’s negligence shall not bar a recovery where such
negligence was not greater than the negligence of the defendant or the combined negligence of all defendants
against whom recovery is sought, but any damages awarded shall be diminished in proportion to the amount of
negligence proximately caused by the plaintiff.
In a survival action, the executor or administrator sues on behalf of the decedent’s estate to recover
damages that were suffered by the decedent up until the time of his death. Magee v. Rose, 405 A.2d 143 (Del.
Super. Ct. 1979). Because the survival action is the decedent’s claim, any possible negligence on the part of
another, such as a parent, must be viewed as a joint cause of the decedent’s injury. The appropriate vehicle for
imposing liability on a joint tortfeasor is through a contribution claim provided for under Delaware statu-
tory law, 10 Del. C. §6302. However, Delaware law recognizes a limited parental immunity doctrine, prevent-
ing parents from being sued by their children or from being joined for purposes of contribution in a lawsuit.
Sears, Roebuck & Co. v. Huang, 652 A.2d 568 (Del. 1990). Therefore, when parental negligence is relevant but
not actionable in a lawsuit involving a minor’s claim, a defendant may introduce evidence to establish that
parental negligence was the supervening cause of a minor child’s injury. Defendants who decide to assert the
parent’s negligence as a supervening cause adopt essentially an “all or nothing” legal strategy. The trier of fact
may decide that the parent’s negligence alone was the cause of the injury, precluding a verdict against the

398  v  Product Liability Conference  v  April 2011


defendant(s). However, the trier of fact may find that the negligence of the parent and one or more defend-
ants were all proximate causes of the child’s injury. In such an event, because the parent is immune from direct
liability or liability for contribution, by definition the parent cannot be a joint tortfeasor, and the non-parent
tortfeasor(s) will remain fully liable for the entire amount of the minor child’s damages Sears, Roebuck & Co. v.
Huang, 652 A.2d 568 (Del. 1990).
Under Delaware law, to establish that another party’s negligence was a supervening cause of an injury,
a party must prove unforeseeability. Where the intervening acts of a third party (such as a parent) are found to
be foreseeable, they will not relieve the original tortfeasor of liability. See, e.g., Sirmans v. Penn, 588 A.2d 1103
(Del. 1991) (foreseeability that car left running would be stolen and involved in an accident).
BURDEN OF PROOF: Burden of Proof Rests Upon the Defendant.
In order for the defense of contributory negligence to prevail, a defendant must establish that the neg-
ligence on the part of the plaintiff was the proximate cause of the injury complained of. Smolka v. Slaughter,
1984 Del. Super. LEXIS 799 (Del. Super. Ct. 1984); Reynolds v. Clark, 92 A. 873 (Del. Super.1914); Willis v. Schla-
genhauf, 188 A. 700 (Del. Super. Ct. 1936). Further, the plaintiff has no duty to rebut negligence on his/her part.
Barni v. Kutner, 76 A.2d 801 (Del. Super. Ct. 1950).
QUESTION OF LAW OR FACT: Generally a Question of Fact.
The determination of proximate cause is a question for the trier of facts. Even when the parent was
not, and could not be, a named defendant for purposes of liability, the trier of fact must decide whether the par-
ent’s negligent supervision was the sole proximate cause, i.e., supervening cause, of a minor child’s injury. Sears,
Roebuck & Co. v. Huang, 652 A.2d 568 (Del. 1990).
LEGAL AUTHORITY: See above for cited cases.
SPECIAL CONSIDERATIONS: Issues of Pleading.
Del. Super. Ct. Civ. R. 8, provides that, in pleading to a preceding pleading, a party shall set forth affir-
matively accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge
in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, license, pay-
ment release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an
avoidance or affirmative defense.
JURY INSTRUCTION: Contributory Negligence; Comparative Negligence; Proximate Cause; Super-
seding Cause.
Del. P.J.I. Civ. §5.11 provides an instruction for contributory/comparative negligence, and a special
verdict form example is provided at Del. P.J.I. Civ. §5.12. A proximate cause instruction is at Del. P.J.I. Civ. §21.1.
A superseding cause instruction is at Del. P.J.I. Civ. §21.3, with an instruction on a foreseeable injury at Del.
P.J.I. Civ. §21.6.

X. Florida
H. Hamilton (“Chip”) Rice, III
Bush Graziano & Rice, P.A.
ACCEPTANCE OF THE DOCTRINE: Yes, partially.
Under Florida law, a parent’s negligence may not be imputed to a child plaintiff so as to bar or reduce
recovery by the child or on behalf of the child. See, e.g., Orefice v. Albert, 237 So.2d 143 (Fla. 1970) (citing Jackson-
ville Elec. Co v. Adams, 39 So. 183, 185 (Fla. 1905)); Florida Power and Light Co. v. Macias, 507 So.2d 1113, 1116
(Fla. 3d DCA 1987). However, due to operation of the comparative fault doctrine, a child’s award of damages
The Parental Negligence Doctrine  v  Shirley  v  399
can be reduced by any percentage of fault assigned to a negligent parent. Y.H. Investments, Inc. v. Godales, 690
So.2d 1273 (Fla. 1997) (Wells, J and Kogan, CJ, dissenting). See Application, below.
Additionally, under the doctrine of comparative negligence, parental negligence can reduce an award
of damages to parents seeking damages in their own right for injury to or death of a child. See, e.g., Jacksonville
Elec. Co., 50 Fla. at 185; Gurney v. Cain, 588 So.2d 244 (Fla. 4th DCA 1991).
APPLICATION OF THE DOCTRINE: Comparative Negligence
Florida adheres to the doctrine of comparative negligence. Under Section 768.81, Florida Statutes,
“the court shall enter judgment against each party liable on the basis of such party’s percentage of fault and not
on the basis of the doctrine of joint and several liability.” While Florida courts abide by the common law prin-
ciple that a parent’s negligence cannot be imputed to a child in an action by or on behalf of the child, the Flor-
ida Supreme Court has held that the name of an allegedly negligent parent can be placed on the verdict form
for apportionment of fault where there is sufficient evidence of fault which caused the child’s injuries. See Y.H.
Investments, Inc. v. Godales, 690 So.2d 1273 (Fla. 1997) (Wells, J and Kogan, CJ, dissenting). The Court reasoned
that the defendant cannot be liable for more than his or her percentage of fault under Section 768.81, Florida
Statutes. Id. Thus, in practical application, if the parent was found to be 50 percent negligent and the defendant
50 percent negligent, the child would only be permitted to recover 50 percent of any damages award from the
defendant under the comparative negligent doctrine. Id.
However, it should also be noted that one parent’s negligence cannot be attributed to the other parent
so as to limit the other parent’s award of damages in a wrongful death action. Frazier v. Metropolitan Dade Co.,
701 So.2d 418 (Fla. 3d 1997). With respect to an action for wrongful death, Florida law specifically provides,
“A defense that would bar or reduce a survivor’s recovery if she or he were the plaintiff may be asserted against
him, but shall not affect recovery of any other survivor.” §768.20, Fla. Stat. (2010). The Florida Supreme Court
specifically held that this provision is controlling over Section 768.81, Florida Statutes.
BURDEN OF PROOF: Burden of Proof Rests Upon the Defendant
Comparative negligence is an affirmative defense and the burden of poof lies with defendant. See, Fla.
R. Civ. P. 1.110; §768.81, Fla. Stat. (2010); Cuozzo v. Ronan & Kunzl, Inc., 453 So.2d 902 (Fla. 4th DCA 1984).
QUESTION OF LAW OR FACT: Generally a Question of Fact
The issue of whether a party or nonparty is comparatively negligent is usually a question of fact for
the jury to decide; however, where no reasonable view of the evidence by the jury could support a finding of
comparative negligence, the issue can be a question of law. See, e.g., Capitano v. CSX Transp, Inc., 698 So.2d
652, 653 (Fla. 2d DCA 1997). It is well-settled law that “where there is no evidence tending to prove compara-
tive negligence, the issue should not be submitted to the jury.” Florida Ass’n of Workers for the Blind, Inc. v. Guil-
laume, 618 So.2d 275, 276 (Fla.3d DCA 1993)
LEGAL AUTHORITY: Statutory
The key legal authority regarding comparative negligence and the apportionment of fault between
parties and non-parties is Section 768.81, Florida Statutes, which was adopted by the Florida legislature in its
present form in 1993.
The Florida Supreme Court’s most recent, detailed pronouncement of how the negligence of a parent
affects the recovery of a child under the comparative negligence doctrine is found in Y.H. Investments, Inc. v.
Godales, 690 So.2d 1273 (Fla. 1997).
SPECIAL CONSIDERATIONS: Issues of Pleading and Evidence

400  v  Product Liability Conference  v  April 2011


The Florida Rules of Civil Procedure provide, “[i]n pleading to a preceding pleading, a party shall set
forth affirmatively….contributory negligence……and any other matter constituting an avoidance or affirma-
tive defense.” Rule 1.110, Fla. R.. Civ. P.
Additionally, Section 768.81 provides that, in order to allocate any or all fault to a nonparty, which
would include a nonparty parent, “a defendant must affirmatively plead the fault of a nonparty and, absent a
showing of good cause, identify the nonparty, if known, or describe the nonparty as specifically as practicable,
either by motion or in the initial responsive pleading when defenses are first presented, subject to amendment
any time before trial...” (Emphasis added).
JURY INSTRUCTION: Comparative Negligence
The Reorganized Florida Standard Jury Instructions (Civil) (2010), are available for review on the
Florida Supreme Court’s website. The provisions relevant to comparative negligence are as follows: §401.22 –
General Negligence: Defense Issues; §401.23 – General Negligence: Burden of Proof on Defense Issues: §501.3
– Damages, Compensatory Damages, Personal Injury and Property Damage: Comparative Negligence, Non-
Party Fault and Multiple Defendants; §502.5 – Damages, Compensatory Damages, Wrongful Death Damages:
Comparative Negligence, Non-Party Fault and Multiple Defendants.

XI. Georgia
Sean W. Shirley
Adam K. Israel
Balch & Bingham LLP
ACCEPTANCE OF THE DOCTRINE: No, except (1) where parental negligence is “sole proximate
cause” of child’s injury; and (2) in a wrongful death action, comparative fault analysis is applied to reduce the
negligent parent’s recovery.
“If the parents are aware of the danger and are the sole proximate cause of the injury to the infant,
there can be no recovery against the defendant even though the defendant may have been negligent.” Barbara J.
Van Arsdale, Georgia Jurisprudence, §21:52 (2010) (citing Teppenpaw v. Blaylock, 191 S.E.2d 466, 469 (Ga. Ct.
App. 1972)); Stroud v. Willingham, 190 S.E.2d 143, 144-45 (Ga. Ct. App. 1972). Otherwise, in a personal injury
action by or on behalf of a child, the negligence of one or both parents or a custodian selected by one or both
parents is not imputable to the child, but in a wrongful death action the negligence of a parent will preclude
recovery by that parent if his or her negligence is greater than or equal to the negligence of the defendant. How-
ever, it does not necessarily bar the other parent from recovering. Id. (citing Ga. Code Ann. §51-2-1(b) (2000)
(“In an action by an infant, the fault of the parent or of custodians selected by the parents is not imputable to
the child.”)); Fulford v. ITT Rayonier, Inc., 676 F.Supp. 252, 254-55 (S.D. Ga. 1987).
APPLICATION OF THE DOCTRINE: Causation and Comparative Fault
The doctrine’s application is two-fold. First, in a personal injury action brought by or on behalf of a
child, recovery by the child will be barred “where the negligence of the parent is the sole proximate cause of the
injury to the child.” Stroud, 190 S.E.2d at 144. Absent a showing that the negligence of one or both parents is the
sole proximate cause, the negligence of one or both parents or a custodian selected by one or both parents is
not imputable to the child. Ga. Code Ann. §51-2-1(b) (2000). Alternatively, in an action for the wrongful death
of a child by one or both parents under Georgia Code Annotated Section 19-7-1(c), the negligence of a parent
will bar recovery by that parent only if that parent’s negligence is greater than or equal to that of the defendant.
Fulford, 676 F.Supp. at 254-55. However, one parent’s negligence will not bar recovery by the other parent. Id.

The Parental Negligence Doctrine  v  Shirley  v  401


(“[T]he contributory negligence of one beneficiary in a wrongful death action does not defeat recovery when
the right to recovery exists in multiple beneficiaries. . . . Under Georgia law, the cause of action for the death of
a child belongs to both parents jointly.” (citation omitted)). Additionally, “where the negligence of [one wrong-
ful death beneficiary] and the defendant combine[s] to proximately cause the death of [the decedent], the neg-
ligence of the [one beneficiary] d[oes] not bar the [other beneficiary’s] recovery even though the negligence
of the [one beneficiary] was equal to or greater than the negligence of the defendant.” Roberts v. Aderhold, 615
S.E.2d 761, 764 (Ga. Ct. App. 2005) (quoting Matthews v. Douberley, 428 S.E.2d 588, 591 (Ga. Ct. App. 1993)).
BURDEN OF PROOF: Burden of Proof Rests Upon the Defendant
“Contributory negligence is an affirmative defense, and the defendant has the burden of proof thereon,
either at trial or summary judgment.” Garrett v. NationsBank, N.A. (South), 491 S.E.2d 158, 162 (Ga. Ct. App.
1997) (citing Stewart v. Mynatt, 70 S.E. 325 (Ga. 1911); City Council of Augusta v. Hudson, 15 S.E. 678 (Ga. 1891);
Nelson & Budd, Inc. v. Brunson, 328 S.E.2d 746 (Ga. Ct. App. 1985); Blanton v. Doughty, 129 S.E.2d 376 (Ga. Ct.
App. 1962); Browning v. Kahle, 126 S.E.2d 892 (Ga. Ct. App. 1962); Martin v. Henson, 99 S.E.2d 251 (Ga. Ct. App.
1957); Western & Atlantic R. Co. v. Mathis, 10 S.E.2d 457 (Ga. Ct. App. 1940); Pollard v. Cartwright, 4 S.E.2d 693
(Ga. Ct. App. 1939); McFarland v. City of McCaysville, 148 S.E. 421 (Ga. Ct. App. 1929)).
QUESTION OF LAW OR FACT: Questions of Fact
The questions of (1) whether one or both parents negligence constitutes the “sole proximate cause” of
the child’s injuries; (2) contributory negligence; and (3) comparative negligence are questions of fact for the
jury. Stegall v. Cent. Ga. Elec. Membership Corp., 470 S.E.2d 782, 785 (Ga. Ct. App. 1996) (“‘Except in plain, pal-
pable and undisputed cases where reasonable minds cannot differ as to the conclusions to be reached, ques-
tions of negligence, proximate cause, including the related issues of foreseeability, assumption of risk, lack of
ordinary care for one’s own safety, lack of ordinary care in avoiding the consequences of another’s negligence,
contributory and comparative negligence are for the jury.’” (quoting Wade v. Mitchell, 424 S.E.2d 810, 813 (Ga.
Ct. App. 1992))); see also N. Ga. Elec. Membership Corp. v. Webb, 540 S.E.2d 271, 275 (Ga. Ct. App. 2000) (finding
that “whether decedents’ contributory negligence was the sole proximate cause of their injuries” was a “ques-
tion[] properly left to the jury”).
LEGAL AUTHORITY: See above for case and statutory citations.
SPECIAL CONSIDERATIONS: Contributory/Comparative Negligence Are Not Required to Be Affir-
matively Pleaded in Answer
The affirmative defenses of contributory negligence and comparative fault do not need to be affirma-
tively pleaded. Under Section 9-11-8(c) of Georgia’s Civil Practice Code, a defendant must only affirmatively
assert the defenses of “accord and satisfaction, arbitration and award, discharge in bankruptcy, duress, estoppel,
failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata,
statute of frauds, statute of limitations, and waiver.” Ga. Code Ann. §9-11-8(c) (2000). The Georgia Court of
Appeals confirmed this in Jones v. Cloud, noting that “comparative negligence is no longer a matter which must
be affirmatively pleaded in response to a pleading under [the predecessor to Section 9-11-8(c)].” Jones v. Cloud,
168 S.E.2d 598, 603 (Ga. Ct. App. 1969). Regardless, defendants may want to include these affirmative defenses
in their answers out of caution.
JURY INSTRUCTION: Contributory Negligence; Comparative Fault; Proximate Cause; Imputed Negli-
gence
I Georgia Suggested Pattern Jury Instructions, §60.140 (5th ed. 2010)—Torts; Equal Negligence; No
Recovery; I Georgia Suggested Pattern Jury Instructions, §60.141 (5th ed. 2010)—Torts; Comparative Neg-
ligence; I Georgia Suggested Pattern Jury Instructions, §60.172 (5th ed. 2010)—Torts; Imputed Negligence;

402  v  Product Liability Conference  v  April 2011


Children; I Georgia Suggested Pattern Jury Instructions, §60.200 (5th ed. 2010)—Torts; Proximate Cause; Defi-
nition.

XII. Hawaii
Michael C. Osborne
ArcherNorris
ACCEPTANCE OF THE DOCTRINE: No.
The negligence of a parent is not imputable to the child plaintiff. Ellis v. Mutual Telephone Company,
29 Haw. 604, 621-622 (1927). Accord, Carpenter v. Honolulu Rapid Transit Company, Limited, 35 Haw. 761, 762
(1940) (the jury was properly instructed that an negligence of the child plaintiff ’s mother or father cannot be
imputed to the child).

XIII. Idaho
Martin Stern
Hinshaw & Culbertson
ACCEPTANCE OF THE DOCTRINE: Yes, partially
When a parent files litigation solely on behalf of the minor child the defendant cannot reduce its lia-
bility by claiming contribution from the parent. Pedigo v. Rowley, (1980) 101 Idaho 201, 610 P.2d 560. There is
also no published opinion which overrides this general rule so that the non-party parent is placed on a special
verdict form to receive an apportionment of liability. The inability to obtain contribution from the allegedly
negligent parent is founded upon Idaho’s parental immunity doctrine. In this context, the parental immunity
doctrine eliminates the possibility of inappropriately reducing the child’s compensation by means of appor-
tionment with the negligent parent. Woodburn v. Manco, (2002) 137 Idaho 502, 50 P.3d 997.
Where the child has no cause of action against the parent for negligent supervision a third-party also
has no claim for contribution from the parent. Pedigo v. Rowley, (1980) 101 Idaho 201, 610 P.2d 560. In Pedigo
this inequity was recognized by Justice Bakes within his dissenting opinion. Justice Bakes described the follow-
ing scenario:
The inequity possible under the holding of the majority in this case is immediately evident. If the
third party is minimally negligent—for example, 10 percent—and the immune parent is primar-
ily at fault—for example, 90 percent—the third party will, according to the majority, be saddled
with the entire judgment while the seemingly culpable parent bears no loss whatsoever. If the par-
ent and the child are truly one economic unit, as the majority approvingly asserts by its quotation
from the Holodook case, the parent profits by his own wrongdoing.
Id. at 567
In contrast, when the parent of a minor child brings an individual claim on his or her own behalf,
then the defendant is permitted to counter claim to offset certain damages. When a parent pursues a claim for
individual damages, “the negligence of a parent bars only the parent’s action to recover medical and hospital
expenses, loss of services and the like, but is not imputed to the child in an action by or on behalf of the child
for his personal injury.” Gayhart v. Schwabe, (1958) 80 Idaho 454, 330 P.2d 327; Jacobson v Schroder, (1990) 117
Idaho 442, 788 P.2d 843.

The Parental Negligence Doctrine  v  Shirley  v  403


Idaho applies a different rule of law in wrongful death claims. In wrongful death claims there is no
possibility of the child benefiting from any recovery. As such, Idaho permits the comparative negligence of the
parent to be raised as a defense. Idaho Code Sec. 5-311; York v. Pacific & Northern Railway Co., (1902) 8 Idaho
574, 69 P. 1042; Nelson v. Northern Leasing Co., (1983) 104 Idaho 185; Woodburn v. Manco, (2002) 137 Idaho
502, 50 P.3d 997.
APPLICATION OF THE DOCTRINE: Comparative Negligence
The doctrine is applied through the principle of comparative negligence. Idaho’s comparative negli-
gence law is premised on the sound common sense proposition that a plaintiff whose damages are as much the
result of his own negligence as of defendant’s negligence ought not to recover and that, in such cases, parties
should bear their own losses. Idaho Code Sec. 6-1404; 6-1405; 6-801, 6-802; See also, Seppi v. Betty, (1978) 99
Idaho 186, 579 P.2d 683. Under the comparative negligence statute, a jury finding that 50 percent of the negli-
gence was attributable to the plaintiff would preclude any recovery. Id. Idaho’s comparative negligence statute is
not limited to certain types of actions or by exceptions, but rather, covers any action in which plaintiff is seek-
ing to recover on grounds of negligence. Idaho Code Sec. 6-801; Salinas v. Vierstra, (1985) 107 Idaho 984, 695
P.2d 369.
BURDEN OF PROOF: Affirmative Defense with burden on the Defendant
Comparative negligence is an affirmative defense. Idaho R. Civ. P. 8(c ), See also, Idaho Dept. of Labor v.
Sunset Marts, Inc., (2004) 140 Idaho 207, 91 P.3d 1111. In addition, Idaho’s Standard Jury Instruction, 1.41.4.2,
charges the jury with defendant’s burden of proof when comparative negligence is alleged. Pursuant to this
instruction, the defendant must prove 1) that plaintiff was negligence; and 2) the negligence of the plaintiff was
the proximate cause of his/her own injuries.
QUESTION OF LAW OR FACT: Question of Law.
Questions regarding construction and application of the comparative negligence statute are pure
questions of law which the Court of Appeals will review freely. Adams v. Krueger, (1991) 124 Idaho 97, 856 P.2d
887, review granted, affirmed 124 Idaho 74, 856 P.2d 864. However, questions of negligence and the apportion-
ment of negligence among the parties are for the finder of fact. Roberts v. Wyman, (2000) 135 Idaho 690, 23 P.2d
152, rehearing denied, review denied.
LEGAL AUTHORITY: Common law
The Idaho Supreme Court’s decision in Pedigo v. Rowley, (1980) 101 Idaho 201, 610 P.2d 560 was a
case of first impression which affirmed the parental immunity doctrine. This doctrine was later restated by the
Idaho Supreme Court in Jacobson v Schroder, 117 Idaho 442, 788 P.2d 843 (1990). These cases are often cited
for the proposition that a parent’s negligence cannot be imputed to the child. This rule of law is further codi-
fied within Idaho’s Standard Jury Instruction, IDJI 2.45, which states that “The negligence of a parent cannot be
charged to a minor child.”
SPECIAL CONSIDERATIONS:
Generally, parents have the primary right of action for expenses incurred by a child in connection with
an injury; however, parents may waive or relinquish their rights in favor of the child so as to entitle the child to
recover the full amount of damages. A waiver may be formal or implied from party’s conduct such as failing to
object to bringing of an action by the child in which the child claims damages properly belonging to the par-
ent, or when the parent testifies in the child’s action in regard to such damages. Lasselle v. Special Products Co.,
(1983) 106 Idaho 170, 677 P.2d 483. Where parents did not object to minor’s bringing negligence action in which
he sought payment of medical expenses incurred by injury, but rather, filed a ratification and testified on child’s
behalf, such acts constituted a waiver by the parents of their primary right of recovery of such expenses. Id.

404  v  Product Liability Conference  v  April 2011


JURY INSTRUCTIONS:
IDJI 1.41.4.2 – Companion Instruction – defendant’s burden: This instruction charges the jury with
the burden of proof required to establish the defense of Plaintiff ’s comparative fault.
IDJI 2.45 - “The negligence of a parent cannot be charged to a minor child.”
Idaho Code Sec. 6-802: Provides that when requested, the court may direct the jury to find separate
special verdicts determining the amount of damages and the percentage of negligence or comparative respon-
sibility attributable to each party; and the court shall then reduce the amount of such damages in proportion to
the amount of negligence or comparative responsibility attributable to the person recovering.
Seppi v. Betty, (1978) 99 Idaho 186, 579 P.2d 683: The Idaho Supreme Court’s decision in Seppi held
that the trial court can inform the jury of the effect of apportioning 50 percent or more of the negligence to the
plaintiff. In addition, the trial court should carefully instruct the jury that they are to determine the total dam-
ages and that they are not to reduce that sum to reflect their findings on the percentage of negligence. Id.

XIV. ILLINOIS
John Monical
Lawrence Kamin Saunders & Uhlenhop LLC
ACCEPTANCE OF THE DOCTRINE: Yes, partially.
In Illinois, when a child is injured by the negligence of another, contributory negligence on the part of
a parent cannot be imputed to the child so as to bar the child’s suit for injuries and damages. Romine v. City of
Watseka, 341 Ill. App. 370, 91 N.E.2d 76 (2d Dist. 1950), citing Chicago City R. Co. v. Wilcox, 138 Ill. 370 at 370-
381, 27 N.E. 899(1891) (when a child is injured, the negligence of his parents cannot be imputed to him so as
to support the defense of contributory negligence); Richardson v. Nelson, 221 Ill. 254 at 254-257, 77 N.E. 583
(1906); Perryman v. Chicago City R. Co., 242 Ill. 269 at 269-274, 89 N.E. 980 (1909); Hallis v. Stover Co., 275 Ill.
App. 44 (1st Dist. 1934) (in an action by a minor to recover for injuries, the negligence or contributory negli-
gence of the minor’s parents or one charged with the minor’s care during the time of the accident is not imput-
able to the plaintiff so as to bar a recovery).
However, a parent’s negligence may still bar or reduce recovery when: (1) the parent’s negligence
reduces the total fault of the defendant below a statutorily defined percentage, 25 percent of the total fault of all
parties contributing to the damages, 735 ILCS 5/2-117; (2) the claim is brought under Illinois’ wrongful death
statute, 740 ILCS §180; or (3) the claim is for family expenses chargeable against the parents under the family
expense provision of the Rights of Married Persons Act, family expense statute, 750 ILCS 65/15.
APPLICATION OF THE DOCTRINE: Statutory Comparative Fault and Contributory Negligence
Illinois has adopted a statutory modified comparative fault in all actions on account of death, bodily
injury or physical damage to property. Under the statute, the plaintiff’s recovery is reduced by the plaintiff’s con-
tributory fault unless the plaintiff is more than 50 percent at fault for causing his own injuries or damages. If the
plaintiff is more than 50 percent at fault, judgment is entered in favor of the defendant. 735 ILCS 5/2-1116. As
noted above, the parent’s negligence generally is not imputed to the child when the child is the plaintiff.
Several Liability (25 percent Rule):
Illinois law provides that in actions arising out of bodily injury, death, or property damage, a
defendant who is found to be less than 25 percent at fault for a plaintiff ’s damages (given the total combined
fault attributable to the plaintiff, defendants sued by the plaintiff, and “any third party defendant except the
plaintiff ’s employer”) shall be only severally liable for damages other than “Medical and medically related

The Parental Negligence Doctrine  v  Shirley  v  405


expenses.” 735 ILCS 5/2-1117. If a parent is brought into the case as a third-party defendant, the parent’s pro-
portionate share of fault may reduce the percentage fault of a defendant below the 25 percent threshold, pre-
cluding joint and several liability of that defendant.
Wrongful Death:
Claims under the Illinois Wrongful Death Act, are statutory claims brought by the statutory beneficia-
ries (not the deceased child). Under the Act, contributory fault of a beneficiary bars or reduces recovery for that
beneficiary as follows:
In any [wrongful death action], it shall not be a defense that the death was caused in whole or in
part by the contributory negligence of one or more of the beneficiaries on behalf of whom the
action is brought, but the amount of damages given shall be reduced in the following manner.
The trier of fact shall first determine the decedent’s contributory fault in accordance with Sec-
tions 2-1116 and 2-1107.1 of the Code of Civil Procedure. Recovery of damages shall be barred
or diminished accordingly. The trier of fact shall then determine the contributory fault, if any, of
each beneficiary on behalf of whom the action was brought:
(1) Where the trier of fact finds that the contributory fault of a beneficiary on whose behalf the
action is brought is not more than 50 percent of the proximate cause of the wrongful death of the
decedent, then the damages allowed to that beneficiary shall be diminished in proportion to the
contributory fault attributed to that beneficiary. The amount of the reduction shall not be payable
by any defendant.
(2) Where the trier of fact finds that the contributory fault of a beneficiary on whose behalf the
action is brought is more than 50 percent of the proximate cause of the wrongful death of the
decedent, then the beneficiary shall be barred from recovering damages and the amount of dam-
ages which would have been payable to that beneficiary, but for the beneficiary’s contributory
fault, shall not inure to the benefit of the remaining beneficiaries and shall not be payable by any
defendant.
The trial judge shall conduct a hearing to determine the degree of dependency of each beneficiary
upon the decedent. The trial judge shall calculate the amount of damages to be awarded each ben-
eficiary, taking into account any reduction arising from either the decedent’s or the beneficiary’s
contributory fault.
740 ILCS 180/2.
Family Expenses:
Under the Illinois family expense provision of the Rights of Married Persons Act, 750 ILCS 65/15, par-
ents are liable for the expenses of the family, including medical, hospital and funeral expenses of children under
the age of majority (18). Graul v.Adrian, 32 Ill.2d 345, 205 N.E.2d 444 (1965). Accordingly, it is the parents, and
not the child, that are the plaintiffs who hold the right to a cause of action for reimbursement for such expenses.
Skaggs v. Junis, 27 Ill. App. 2d 251 (2d Dist. 1960); Reimers v. Honda Motor Corp., 150 Ill. App. 3d 840 (1st Dist.
1986).
Because the cause of action under the family expense provision belong to each parent and not the
child, each parent is a plaintiff, and any defenses (including comparative fault by the parent) that may not be
valid against the child’s cause of action may be valid against that parent’s cause of action. Kennedy v. Kiss, 89 Ill.
App.3d 890, 412 N.E.2d 624 (1st Dist. 1980); Romine v. City of Watseka, 341 Ill.App. 370, 91 N.E.2d 76 (2d Dist.
1950); Crutchfield v. Meyer, 414 Ill. 210, 111 N.E.2d 142 (1953) (contributory negligence of parents will bar
recovery by them for wrongful death); Henry v. Robert Kettell Construction Corp., 82 Ill.App.2d 420, 226 N.E.2d
406  v  Product Liability Conference  v  April 2011
89 (2d Dist. 1967) (same). Although a parent can assign the right to recover these expenses to the child, the
child’s claim for reimbursement still is subject to the same defenses that could have been raised against the par-
ent. Reimers, supra.
BURDEN OF PROOF: Burden of Proof Rests Upon the Defendant
The plaintiff must prove by a preponderance of the evidence that the defendant was at fault. The
defendant has the burden of proof as to the plaintiff ’s comparative fault. Casey v. Baseden, 111 Ill.2d 341, 346-
47 (1986).
QUESTION OF LAW OR FACT: Question of Fact
The issue of contributory or comparative fault generally is a question of fact for the jury. See Nunley v.
Village of Cahokia, 115 Ill.App.3d 208, 450 N.E.2d 363 (5th Dist. 1983); Cooper v. Chicago Transit Authority, 153
Ill.App.3d 511, 505 N.E.2d 1239 (1st Dist. 1987); Haist v. Wu, 235 Ill.App.3d 799, 601 N.E.2d 927 (1st Dist. 1992).
Contributory negligence, however, may be decided as a matter of law when all reasonable minds would agree
that, based on the evidence and reasonable inferences and considered in a light most favorable to the movant,
judgment in favor of the nonmovant would not be permitted to stand. See Berner v. Kielnik, 117 Ill.App.3d 419,
453 N.E.2d 729 (1st Dist. 1983). Conversely, an instruction on contributory negligence is improper when there
are no facts presented from which a finding of contributory negligence could be reached. See Freeman v. Chicago
Transit Authority, 50 Ill.App.2d 125, 200 N.E.2d 128 (1st Dist. 1964), aff’d, 33 Ill.2d 103 (1965); Cooper, supra.
LEGAL AUTHORITY: See cases and statutes cited herein.
SPECIAL CONSIDERATIONS: Contributory and Comparative Negligence Must be Plead as Affirma-
tive Defenses
Plaintiff ’s comparative negligence must be pleaded as an affirmative defense. D.C. v. S.A., 178 Ill. 2d
551, 564 (1997). The failure to plead an affirmative defense such as comparative or contributory negligence that
would likely take the opposition by surprise may result in waiver of the defense. See Blackburn v. Johnson, 187
Ill.App.3d 557, 543 N.E.2d 583 (4th Dist. 1989) (decedent’s contributory negligence).
An affirmative defense based on 735 ILCS 5/2-1117 should always be filed in cases in which there are
two or more defendants.
JURY INSTRUCTIONS: Relevant Illinois Pattern Jury Instructions:
Section 2-1107.1 of the Illinois Code of Civil Procedure provides as follows:
Jury instruction in tort actions. In all actions on account of bodily injury or death or physical dam-
age to property based on negligence, or product liability based on strict tort liability, the court shall instruct
the jury in writing that the defendant shall be found not liable if the jury finds that the contributory fault of the
plaintiff is more than 50 percent of the proximate cause of the injury or damage for which recovery is sought.
Illinois Pattern Jury Instructions:
Illinois Pattern Jury Instruction, Civil No. 11.05
Negligence of Parents Not Imputed
“If you find that the [mother] [father] [parents] of child’s name [was] [were] negligent, that negligence
shall not be charged against child’s name, and it does not prevent or reduce a recovery by child’s name if he is
otherwise entitled to recover.”
Illinois Pattern Jury Instructions, Civil, No. B11.06.
Contributory Negligence Claimed – Parents, Child Seven or Over, Parents Cause of Action Not
Assigned to Child

The Parental Negligence Doctrine  v  Shirley  v  407


“This lawsuit involves two distinct but related claims. The first is brought by the child who seeks dam-
ages for his injuries. The second claim is brought by his [father] [mother] who seeks compensation for money
spent or amounts for which [he] [she] has become liable for reasonably necessary [expenses] [and for loss of
earnings of the child during his minority].
Childs Claim
If you should find that the child was contributorily negligent and if the contributory negligence of the
child was 50 percent or less of the total proximate cause of the child’s injury, then the damages to which the
child would otherwise be entitled must be reduced in proportion to the amount of negligence attributable to
the child. If the contributory negligence of the child was more than 50 percent of the total proximate cause of
the injury or damage for which recovery is sought, then the defendant shall be found not liable on both claims.
[The (father’s)(mother’s) negligence, if any, does not affect the amount, if any, to which the child is entitled on
his own claim.]
Parent’s Claim
As to the [father’s] [mother’s] claim, the [father’s] [mother’s] damages must [first] [also] be reduced
by the percentage of contributory negligence of the child, if any. [If you find that the (father) (mother) was neg-
ligent and that the (father’s) (mother’s) negligence was 50 percent or less of the total proximate cause of the
injury or damage for which recovery is sought, then the (father’s) (mother’s) negligence proportionately fur-
ther reduces the damages to which the (father) (mother) would have been entitled. If you find that the (father)
(mother) was negligent and that the (father’s) (mother’s) negligence was more than 50 percent of the total
proximate cause of the injury or damage for which recovery is sought, then the defendant shall be found not
liable on the (father’s) (mother’s) claim.]

XV. Indiana
Thomas H. Neuckranz
Williams Montgomery & John
ACCEPTANCE OF THE DOCTRINE: Yes with respect to a wrongful death action, and in all actions the
jury will allocate and apportion fault to a parent if the parent is at fault.
A parent’s negligence cannot be imputed onto a child in an action brought by or on behalf of a child.
Witte v. Mundy, 820 N.E.2d 128, 133 (Ind. 2005) (citing City of Evansville v. Senhenn, 47 N.E. 634, 638 (Ind.
1897)). However, the negligence need not be imputed on the child to reduce the plaintiff’s recovery. The jury will
allocate the fault of all parties and nonparties, including parents of the minor plaintiff, even when immunity bars
the plaintiff’s recovery from a party or nonparty. Witte, 820 N.E.2d at 133. Thus, an adult’s negligent supervision,
for example, can be a contributing cause to the child’s injury, relieving a defendant of some or all liability. Id.
In a Child Wrongful Death action, see Ind. Code 34-23-2-1, brought by the parents, the jury will simi-
larly assess the parents’ degree of fault and reduce the parents’ recovery. Evansville and Crawfordsville R.R. Co. v.
Wolf, 59 Ind. 89, 92 (1877); Ind. Code 34-51-2-7.
Under either type of action, a defendant can only be liable for its percentage of fault. See Ind. Code 34-
51-2-7.
APPLICATION OF THE DOCTRINE: Comparative Fault/Apportionment of Fault
Indiana is a modified comparative fault state in which a plaintiff cannot recover if he is more than fifty
percent at fault. Hockema v. J.S., 832 N.E.2d 537, 542 (Ind. 2005); Ind. Code 34-51-2-6. The comparative fault
statute provides:

408  v  Product Liability Conference  v  April 2011


the jury shall determine the percentage of fault of the claimant, of the defendant, and of any per-
son who is a nonparty. The jury may not be informed of any immunity defense that is available to
a nonparty.
Ind. Code 34-51-2-7. A “nonparty” is “a person who caused or contributed to cause the alleged injury,
death, or damage to property but who has not been joined in the action as a defendant.” Ind. Code 34-6-2-88.
A “nonparty” includes a parent who would under Indiana law be immune from suit from the child. Witte, 820
N.E.2d at 133. Because the parent’s negligence cannot be imputed on the child, where a parent is more than fifty
percent at fault, the child may still recover proportionally from any other defendant to whom the jury also attri-
butes fault. The statute ensures that “a defendant should be required to compensate an injured party only in
proportion to the defendant’s fault.” Id.
In Indiana, courts have developed a conclusive presumption that children under the age of seven are
incapable of judgment or discretion and therefore not capable of negligence. Witte, 820 N.E.2d at 132. The
Indiana Supreme Court also recently recognized a rebuttal presumption that children between the ages of
seven and fourteen are incapable of contributory negligence. See Clay City Consol. Sch. Corp. v. Timberman, 918
N.E.2d 292, 297 (Ind. 2009).
BURDEN OF PROOF: Burden of Proof Rests Upon the Defendant
In actions based on fault, the defendant may assert as a defense that the plaintiff ’s damages resulted
from the fault of a nonparty. Ind. Code 34-51-2-14. The defendant asserting the nonparty defense bears the
burden of proof. Ind. Code 34-51-2-14.
The defendant asserting the contributory fault of the plaintiff also bears the burden of proof. St. John
Town Bd. v. Lambert, 725 N.E.2d 507, 516 (Ind. Ct. App. 2000); see also Clay City Consol. Sch. Corp. v. Timber-
man, 918 N.E.2d 292, 298 (Ind. 2009) (recognizing the “unquestioned obligation that the alleged tortfeasor
bears of proving contributory negligence”).
QUESTION OF LAW OR FACT: Question of Fact
Under comparative fault, with respect to the fault of a nonparty or of the defendant, the allocation of
fault is a jury question. Humphrey v. Duke Energy Ind., Inc., 916 N.E.2d 287, 296 (Ind. Ct. App. 2009). However,
if the facts are undisputed and only a single inference may be drawn from them, the allocation of fault may be
a matter of law. St. John Town Bd. v. Lambert, 725 N.E.2d 507, 516 (Ind. Ct. App. 2000) (citing Nesvig v. Town of
Porter, 668 N.E.2d 1276, 1281 (Ind. Ct. App. 1996)).
LEGAL AUTHORITY: Statutory and Common law
The Indiana Comparative Fault Act was codified in 1983 and went into effect in 1985. Hockema v. J.S.,
832 N.E.2d 537, 541 (Ind. Ct. App. 2005). The Act abrogated Indiana’s common law doctrine of contributory
negligence as a complete bar to recovery. Id.; see also Ind. Code 34-51-2 et seq.
The Indiana legislature amended the Comparative Fault Act in 1995, defining “nonparty” for pur-
poses of the nonparty defense to include a person whose fault contributed to the injury, regardless of whether
the person is immune from tort liability to the plaintiff. Whitte v. Mundy, 820 N.E.2d 128, 133 (Ind. 2005). The
amendment was designed to permit employers to be named as nonparties even though they have no liability to
the plaintiff under workers’ compensation law. Id. The amendment also allows a child’s parent to be named as
nonparty at fault even though the parent is immune from liability to the child. Id. Accordingly, a defendant who
properly asserts the nonparty defense will only be required to compensate the child in proportion to the defen-
dant’s fault. Because the parent’s negligence is not imputed on the child, a parent’s negligence, even if more than
50 percent of the total fault, will not bar the child’s recovery. See Ind. Code 34-51-2-7.

The Parental Negligence Doctrine  v  Shirley  v  409


The Indiana Supreme Court first held in 1897 that a parent’s negligence cannot be imputed to bar a
child’s recovery in an action brought by or on behalf of the child. See City of Evansville v. Senhenn, 47 N.E.2d
634, 638 (Ind. 1897).
In Hockema v. J.S., the Indiana Supreme Court held as a matter of first impression that parents may not
recover for their payment of a child’s medical expenses where the child’s fault exceeds 50 percent. Hockema, 832
N.E.2d at 543. Although the parents are obligated to pay the child’s medical expenses, their right of recovery is
derivative of the child’s, so the fault of the child is imputed on the parent. Id. If the child is less than 50 percent
at fault, the parents may recover the appropriate percentage of medical expenses. Id. But when the child’s fault
exceeds 50 percent, the parents have no right to recover. Id.
With respect to a wrongful death case, the Indiana Supreme Court first held under traditional con-
tributory negligence common law that the parent’s fault will bar recovery for the wrongful death of a child. See
The Evansville and Crawfordsville R.R. Co. v. Wolf, 59 Ind. 89, 92 (Ind. 1877). The Seventh Circuit, interpreting
Indiana law, held that the mother’s negligence operates to bar the father’s recovery for the wrongful death of
their child. Gillam v. J.C. Penney Co., 341 F.2d 457, 463 (7th Cir. 1965). The fault of the decedent child will also
be imputed onto a parent bringing a wrongful death action. Brown v. Slentz, 147 N.E.2d 239, 240 (Ind. 1958).
With the advent of the Comparative Fault Act, the concept of imputation is still valid. Hockema, 832 N.E.2d at
543. Thus, a parent may not recover for the wrongful death of a child if the parent’s fault exceeded 50 percent of
the total fault causing the injury, or if the child’s fault exceeds 50 percent. See Moss v. Crosman Corp., 136 F.3d
1169, 1176 (7th Cir. 1998) (examining Brown and Gillam, finding Indiana court would apply contributory fault
of parent in child wrongful death action).
SPECIAL CONSIDERATIONS: Pleading Issues
Both contributory fault and the nonparty defense are affirmative defenses that must be pleaded in
the answer. See St. John Town Bd. v. Lambert, 725 N.E.2d 507, 516 (Ind. Ct. App. 2000) (addressing contributory
fault); Ind. Code 34-51-2-15 (addressing the nonparty defense). The Comparative Fault Act also provides flexible
deadlines for asserting he nonparty defense, allowing the plaintiff to timely add the nonparty as a defendant:
A nonparty defense that is known by the defendant when the defendant files the defendant’s first
answer shall be pleaded as a part of the first answer. A defendant who gains actual knowledge of a
nonparty defense after the filing of an answer may plead the defense with reasonable promptness.
However, if the defendant was served with a complaint and summons more than one hundred
fifty (150) days before the expiration of the limitation of action applicable to the claimant’s claim
against the nonparty, the defendant shall plead any nonparty defense not later than forty-five (45)
days before the expiration of that limitation of action. The trial court may alter these time limita-
tions or make other suitable time limitations in any manner that is consistent with:
(1) giving the defendant a reasonable opportunity to discover the existence of a nonparty defense;
and
(2) giving the claimant a reasonable opportunity to add the nonparty as an additional defendant to
the action before the expiration of the period of limitation applicable to the claim.
Ind. Code 34-51-2-16. Furthermore, a defendant must include the name of the nonparty in its non-
party defense; it is insufficient to generally describe the nonparty at fault. Cornell Harbison Excavating, Inc. v.
May, 546 N.E.2d 1186 (Ind. 1989).
JURY INSTRUCTION: Apportionment of Fault
The Indiana Comparative Fault Act provides certain elements that the court must include in jury
instructions. With respect to a single defendant:

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(1) The jury shall determine the percentage of fault of the claimant, of the defendant, and of any per-
son who is a nonparty. The jury may not be informed of any immunity defense that is available
to a nonparty. In assessing percentage of fault, the jury shall consider the fault of all persons who
caused or contributed to cause the alleged injury, death, or damage to property, tangible or intan-
gible, regardless of whether the person was or could have been named as a party. The percentage
of fault of parties to the action may total less than one hundred percent (100 percent) if the jury
finds that fault contributing to cause the claimant’s loss has also come from a nonparty or non-
parties.
(2) If the percentage of fault of the claimant is greater than fifty percent (50 percent) of the total fault
involved in the incident which caused the claimant’s death, injury, or property damage, the jury
shall return a verdict for the defendant and no further deliberation of the jury is required.
(3) If the percentage of fault of the claimant is not greater than fifty percent (50 percent) of the total
fault, the jury then shall determine the total amount of damages the claimant would be entitled to
recover if contributory fault were disregarded.
(4) he jury next shall multiply the percentage of fault of the defendant by the amount of damages
determined under subdivision (3) and shall then enter a verdict for the claimant in the amount of
the product of that multiplication.
Ind. Code 34-51-2-7. The Comparative Fault Act contains similar requirement for cases involving mul-
tiple defendants, further directing the jury to allocate fault to each defendant and enter a verdict against each
defendant. Ind. Code 34-51-2-8.
Indiana has also promulgated pattern jury instructions that are not “formally approved” by the Indi-
ana Supreme Court but “are given some preferential status.” See Clay City Consol. Sch. Corp. v. Timberman, 918
N.E.2d 292, 295 (Ind. 2009). Pattern instructions 942 (single defendant) and 943 (multiple defendants) follow
the mandate in Section 34-51-2-7 for allocating fault. Pattern instruction 929 instructs the jury that a child is
not responsible for his parent’s fault.

XVI. Iowa
Kevin M. Reynolds
Whitfield & Eddy, PLC
ACCEPTANCE OF DOCTRINE: Yes, partially.
Under Iowa law, a parent’s negligence cannot be imputed to the child in an action against a third party
to recover for negligent injury to the child. Zach v. Morningstar, 142 N.W.2d 440, 443 (1966); Raskin v. City of
Sioux City, 198 Iowa 865, 200 N.W. 333 (1924)(overruled on other grounds); Fink v. City of Des Moines, 115
Iowa 641, 89 N.W. 28 (1902); and Wymore v. Mahaska County, 43 N.W. 264, 265 (Iowa 1889)(“Where a child is
killed through the negligence of another, his administrator may recover for the wrong, though the parents of
the child may have been guilty of negligence contributing to the injury.”)
However, while the negligence of parents is not imputed to the child, it is relevant to the parents’ recov-
ery. See Wymore v. Mahaska County, 43 N.W. 264, 265 (Iowa 1889)(“If his parents by their negligence, contrib-
uted to [the child’s] death, that does not seem to us to be a sufficient reason for denying his estate relief. Such
negligence would prevent recovery by the parents in their own right.”); Albertson v. Keokuk & D. M. R. Co., 48
Iowa 292 (1878)(a parent’s fault in causing injury to the minor will serve to reduce or bar the parent’s claim).
APPLICATION OF DOCTRINE: Comparative Fault

The Parental Negligence Doctrine  v  Shirley  v  411


The doctrine is applied through the principle of comparative fault. Iowa adheres to the doctrine of
modified comparative fault. Iowa Code §668.3 (2009). Thus, contributory fault on the part of the claimant
does not bar recovery unless the claimant bears a greater percentage of fault than the combined percentage of
fault attributed to the defendants, third party defendants, and parties that have been released, but any dam-
ages allowed shall be diminished in proportion to the amount of fault attributable to the claimant. Iowa Code
§668.3(1).
The negligence of the parent contributing to the accident is a defense to the action, but such con-
tributory negligence is not a defense to an action by the child for recover of damages from injuries caused by
the negligence of a third party. Raskin v. City of Sioux City, 200 N.W. 333, 334 (Iowa 1924)(overruled on other
grounds).
BURDEN OF PROOF: Burden of proof rests on the defendant
Iowa Civil Jury instruction 400.6 states that if the defendant claims that the plaintiff was at fault then
the defendant must prove both that the plaintiff was at fault, and that the fault of the plaintiff was the proximate
cause of the injuries. If the defendant proves both of those propositions, then the plaintiff is assigned a percent-
age of fault. See Koenig v. Koenig, 766 N.W.2d 635, 646 (Iowa 2009)(holding that an instruction requiring the
plaintiff to prove that she did not know or did not have reason to know of the danger was shifting the burden of
proof to the plaintiff which is improper under comparative fault principles.)
QUESTION OF LAW OR FACT: Question of Fact
The jury will be asked to allocate the fault among two or more parties. Iowa Code §668.3(3) expressly
states that in determining the percentages of fault, the trier of fact shall consider both the nature of the con-
duct of each party and the extent of the casual relation between the conduct and the damages claimed. See
Jahn v. Hyundai Motor Co., 773 N.W.2d 550, 560 (Iowa 2009). “Questions of negligence, comparative fault, and
proximate cause are ordinarily for the trier of fact. Only in exceptional cases are they decided as matters of law.”
Casey v. Koos, 323 N.W.2d 193, 198 (Iowa 1982).
LEGAL AUTHORITY: Common law, Statutory, and Rules of Civil Procedure
Negligence of a parent cannot be imputed to the child. Raskin v. City of Sioux City, 200 N.W. 333, 334
(Iowa 1924)(overruled on other grounds). The negligence of the father is available as a defense to the action of
the father, but not that of the child. Id. See also Zach v. Morningstar, 142 N.W.2d 440, 443 (1966)(Under Iowa
law, a parent’s negligence cannot be imputed to the child in an action against a third party to recover for negli-
gent injury to the child.)
Iowa Code §668.3(b) states the law regarding comparative fault. Unless the fault attributable to the
claimant is greater than the combined percentage of fault of the defendants, the claimant may recover damages.
Iowa R. Civ. P. 1.206, entitled “Injury or death of minor,” provides that: “A parent, or the parents, may
sue for the expense and actual loss of services, companionship and society resulting from injury to or death of
a minor child.” Claims under this provision were formerly known as “Rule 8 claims.” A parent’s fault in causing
injury to the minor will serve to reduce or bar the parent’s claim. Albertson v. Keokuk & D. M. R. Co., 48 Iowa
292 (1878). A claim under this rule is not for the injury or death to the child, but for the injury to the parents as
a consequence of the injury to or death of the child. Heimlicher v. Steele, 615 F.Supp.2d 884 (N.D. Iowa 2009).
SPECIAL CONSIDERATIONS: Pleading
The Iowa Rules of Civil Procedure 1.421(1) requires that comparative fault and other affirmative
defenses should be plead in the answer or in an amendment to the answer filed within 20 days.
JURY INSTRUCTIONS:

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Iowa Civil Jury Instructions 400.1; 400.2; 400.3; 400.4; 400.5; 400.6 deal with comparative fault and
imputation of negligence.

XVII. Kansas
Thomas E. Rice
Kara T. Stubbs
Baker Sterchi Cowden & Rice, L.L.C.
ACCEPTANCE OF THE DOCTRINE: No–Imputed Negligence; Yes–Negligence of Parent in Wrongful
Death of Child.
Term “imputed negligence” refers to doctrine that places upon one person responsibility for the neg-
ligence of another; such responsibility or liability is imputed by reason of some special relationship of the par-
ties. See Schmidt v. Martin, 510 P.2d 1244 (Kan. 1973). The Court in Schmidt, discussed the doctrine of imputed
negligence, pointing out that in the course of our judicial history Kansas has rejected the application of the
doctrine of imputed negligence in the following special relationships: parent and child; husband and wife;
driver and passenger; owner of vehicle and driver; and bailor and bailee. The doctrine of imputed negligence
is now approved and accepted in Kansas only when applied to two special relationships—the master-servant
relationship and joint enterprise. Lightner v. Frank, 727 P.2d 430, 433 (Kan. 1986) (citing Kan.Stat.Ann §60-
258(a); Schmidt v. Martin, 510 P.2d 1244 (Kan. 1973)). Kansas Courts rejected the doctrine in the parent-child
situation by holding that a child is not responsible for the contributory negligence of his parents. See id. More-
over, when the parents of a child are unable to give him their personal care and intrust him to the supervision
to a suitable person, the negligence of the latter cannot be imputed to the parents, and will not defeat a recovery
for negligence resulting in the death of the infant. See id.
However, in Kansas, where the death of a minor child results from the contributory negligence of a
parent and that of a third person the issue has yet to be decided by the courts. Prior to the enactment of K.S.A.
60-258a it was well recognized, under contributory negligence theory, that in an action for the wrongful death
of a child the contributory negligence of a parent would bar their recovery from a third party because the dam-
ages recoverable for the death of the child are solely for the benefit of the parent who negligently contributed to
the child’s death. See Schmidt v. Martin, 510 P.2d 1244 (Kan. 1973). Kansas Courts have yet to apply K.S.A 60-
258a and the comparative fault of a parent to a minor child’s wrongful death action. However, it is very likely
that Kansas Courts will apply comparative fault of a parent in reducing any recovery in proportion to his or her
percentage of fault. See Honeycutt By and Through Phillips v. City of Wichita, 796 P.2d 549 (Kan. 1990) (holding
that if contributory negligence or an analogous defense would have been a defense to a claim before compara-
tive fault was adopted, then the comparative negligence statute is applicable to the same facts).
APPLICATION OF THE DOCTRINE: Comparative Fault
The doctrine is applied through the principle of comparative negligence. The state of Kansas adheres
to the doctrine of modified comparative negligence. E.g., Kan.Stat.Ann. §60-258(a) (2010); Forsythe v. Coats
Co., Inc., 639 P.2d 43 (Kan. 1982). According to K.S.A. §60-258(a) “[t]he contributory negligence of any party
in a civil action shall not bar such party or such pary’s legal representative from recovering damages for negli-
gence resulting in death, personal injury, property damage or economic loss, if such party’s negligence was less
than the causal negligence of the party or parties against whom claim for recovery is made, but the award of
damages to any party in such action shall be diminished in proportion to the amount of negligence attributed
to such party. Kan.Stat.Ann. §60-258(a) (2010).
BURDEN OF PROOF: Burden of Proof Rests Upon the Defendant
The Parental Negligence Doctrine  v  Shirley  v  413
A Defendant who seeks to reduce his percentage of fault by comparing fault of another party has bur-
den of proving other party’s fault by preponderance of evidence. See Wooderson v. Ortho Pharmaceutical Corp.,
681 P.2d 1038 (Kan. 1984); see also Kan.Stat.Ann. §60-258a(c) (2010). Meaning that if the Defendant argues
either the Plaintiff or a third party contributed to the Plaintiff ’s injuries the Defendant must offer proof more
probable than not that such a claim is true. See McGraw v. Sanders Co. Plumbing and Heating, 667 P.2d 289 (Kan.
1983). This is in line with the general rule that the burden of proof on any point is upon the party asserting it.
See id.
QUESTION OF LAW OR FACT: Question of Fact
According to the Kansas Supreme Court, the negligence or comparative fault of a particular person in
particular circumstances is a question of fact to be determined by the finder of fact in each case. See Honeyc-
utt by and Through Phillips v. City of Wichita, 796 P.2d 549 (Kan. 1990). Under law of comparative negligence,
allocation of each party’s proportionate negligence must be question for trier of fact. See Scales v. St. Louis-San
Francisco Ry. Co., 582 P.2d 300 (Kan. 1978).
LEGAL AUTHORITY: Statutory and Common law
In 1974, the Kansas legislature enacted what is now K.S.A. 60-258a which in pertinent part provides:
(a) The contributory negligence of any party in a civil action shall not bar such party or said party’s
legal representative from recovering damages for negligence resulting in death, personal injury
or property damage, if such party’s negligence was less than the causal negligence of the party
or parties against whom the claim for recovery is made, but the award of damages to any party
in such action shall be diminished in proportion to the amount of negligence attributed to such
party.
Kan.Stat.Ann. §60-258(a) (2010)
The Kansas Supreme Court held in Teepak Inc. v. Learned, that according to State case law, that the
Intent and purpose of legislature in adopting comparative negligence statute was to impose individual liabil-
ity for damages based on proportionate fault of all parties to the occurrence which gave rise to the injuries and
damages even though one or more parties cannot be joined formally as litigant or be held legally responsible
for his or her proportionate fault. 699 P.2d 35 (Kan. 1985). Kansas Comparative Negligence Act applies wher-
ever a defendant could set up a defense of contributory negligence or an analogous defense, and, thus, plain-
tiff ’s fault must be compared with that of defendant whether it be characterized as contributory negligence,
assumption of risk, product misuse or unreasonable use. See Hardin v. Manitowoc-Forsythe Corp., 691 F.2d 449
(10th Cir.1982).
SPECIAL CONSIDERATIONS: Pleading Issues
The Kansas Rules of Civil Practice mandate that “[i]n a pleading to a preceding pleading a party shall
set forth affirmatively . . . contributory negligence . . . and any other matter constituting an avoidance or affir-
mative defense.” Kan. Civ. Prc. Code Ann. §60-208(c) (2010). Thus, all affirmative defenses should be pled in
the defendant’s answer to the complaint.
However, the Rules do allow amendment of the pleadings, stating “[w]hen issues not raised by the
pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they
had been raised in the pleadings.” Kan. Civ. Prc. Code Ann. §60-214(b) (2010). Even upon objection of the
amendment on a non-pled issue, “the court may allow the pleadings to be amended and shall do so freely when
the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the
court that the admission of such evidence would prejudice the . . . defense upon such merits.” Id.
JURY INSTRUCTION: Apportionment of Fault and Comparative Negligence
414  v  Product Liability Conference  v  April 2011
The Pattern Instructions for the state of Kansas contains several instructions regarding comparative
fault. The following are the instructions to be suggested for a comparative fault case: Comparative Fault The-
ory and Effect, PIK–Civil 4th 105.01; Comparative Fault Theory and Effect—Children, PIK–Civil 4th 105.02;
Comparative Fault—Explanation of Verdict, PIK–Civil 4th 105.03; Comparative Fault—Where Claim is Made
Against One Not Joined As A Party, PIK–Civil 4th 105.04; Comparative Fault—Basis of Comparison, PIK–Civil
4th 105.05; Comparative Fault—Fault Directed By Court—Admitted or Stipulated Issue, PIK–Civil 4th 105.06;
Assumption of Risk, PIK–Civil 4th 107.52; Bailment—Unreasonable Use as a Defense to Implied Warranty of
Fitness, PIK–Civil 4th 124.78, Animals—Vicious, PIK–Civil 4th 126.91; Express or Implied Warranty—Unrea-
sonable Use as a Defense—Comparative Fault, PIK–Civil 4th 128.16; Products Liability—Strict Liability in
Tort—Unreasonable Use as a Defense—Comparative Fault, PIK–Civil 4th 128.19; Verdict Form—Comparative
Fault, PIK–Civil 4th 181.04.

XVIII. Kentucky
Elizabeth A. Deener
Landrum & Shouse LLP
ACCEPTANCE OF THE DOCTRINE: Yes, but mostly abrogated.
Kentucky has recognized the doctrine that an unemancipated minor cannot maintain an action
against a living parent to recover damages for negligence. Harralson v. Thomas, Ky., 269 S.W.2d 276 (1954); Red-
wine v. Adkins, Ky., 339 S.W.2d 635 (1960); Harlan National Bank v. Gross, Ky., 346 S.W.2d 482 (1961). In Rigdon
v. Rigdon, Ky., 465 S.W.2d 921 (1971), the Kentucky Supreme Court abandoned the doctrine of parental immu-
nity except in two situations: (1) where the negligent act relied on for recovery involves the “reasonable exercise
of parental authority” over the child, and (2) where the alleged negligent act involves the exercise of ordinary
parental discretion with respect to provisions for the care and necessities of the child.
THE LIMITED APPLICATION
As recognized by Rigdon, the parental immunity doctrine prevents an action against a parent except
when the parent is exercising authority over the child and parental discretion. These applications have been
narrowly defined by the Kentucky Supreme Court. Specifically: (1) An exercise of parental authority “simply
involves acts of disciplining a child.” Horn v. Horn, 630 S.W.2d 70 (Ky. 1982) (citing Thoreson v. Milwaukee and
Suburban Transport Co., 56 Wis.2d 231, 201 N.W.2d 745, 753 (1972)); (2) The exercise of ordinary parental
discretion “in providing for the care and necessities of a child is limited to those provisions which a parent is
legally obligated to furnish.” Id.
THE DEATH OF THE PARENT
The doctrine does not apply in cases where the injuries to the minor child were the result of negli-
gence by the parent and also resulted in the parent’s death. Thurman v. Etherton, 459 S.W.2d 402 (Ky. 1970).
In Thurman, held that doctrine of parental immunity did not bar unemancipated minors’ action against their
father’s estate to recover damages for personal injuries sustained in an automobile accident also resulting in
death of the father. The Court determined that the change in family status caused by the parent’s death means
the public policy considerations supporting the doctrine of parental immunity are no longer controlling. As the
“reasons which may have justified barring the child’s remedy against a living parent have lost their compelling
significance when the living-family relationship no longer exists.” Id.
SPECIAL CONSIDERATIONS: Insurance; Motor Vehicle Reparations Act

The Parental Negligence Doctrine  v  Shirley  v  415


Before asserting the parental negligence doctrine, other potentially applicable law needs to be evalu-
ated. This is particularly the case in cases effected by insurance. The Commonwealth of Kentucky has cited
the Rigdon case in its opinion eliminating the household exclusion. Lewis v. West American Insurance Co., 927
S.W.2d 829 (Ky. 1996). Further, the adoption of the Kentucky Motor Vehicle Reparations Act. KRS 304.39 et seq,
eliminated any exclusions of liability, including the parental negligence doctrine, to the extent of the mandatory
insurance minimums.

XIX. Louisiana
Damian Fletcher
Hinshaw & Culbertson
ACCEPTANCE OF THE DOCTRINE: Yes
Louisiana adopted a comparative system by statute in 1996. Pursuant to Louisiana Civil Code arti-
cle 2323(a), “in any action for damages where a person suffers injury, death, or loss, the degree or percentage
of fault of all persons causing or contributing to the injury, death, or loss shall be determined, regardless of
whether the person is a party to the action or a nonparty, and regardless of the person’s insolvency, ability to
pay or immunity by statute. If a person suffers injury, death, or loss as the result partly of his own negligence
and partly as a result of the fault of another person or persons, the amount of damages recoverable shall be
reduced in proportion to the degree or percentage of negligence attributable to the person suffering the injury,
death, or loss.” LSA C.C. Art. 2323 (2010).
Under provision B of article 2324 as amended in 1996, “If liability is not solidary pursuant to Para-
graph A, then liability for damages caused by two or more persons shall be a joint and divisible obligation. A
joint tortfeasor shall not be liable for more than his degree of fault and shall not be solidarily liable with any
other person for damages attributable to the fault of such other person, including the person suffering injury,
death, or loss, …” LSA C.C. Art. 2324 (b) (2010). In other words, there is no joint and several liability among
joint tort feasors.
APPLICATION OF THE DOCTRINE: Comparative Fault/Apportionment of Fault
Comparative fault is an affirmative defense. Trahan v. Savage Industries, Inc., 692 S.2d 490 (La. Ct.
App. 3d Cir. 1997). Since the adoption of Louisiana’s pure comparative fault system, theories of assumption of
risk and third party actions have been subsumed into the comparative fault system making a counter-claim or
third-party claim unnecessary. The threshold requirement for application of the doctrine of comparative fault
to reduce a damage award is that the plaintiff, third party, or irresistible force must be found partially at fault in
causing resulting harm. Landry v. State, 495 So. 2d 1284 (La.1986); Trahan v. Savage Industries, Inc., 692 So. 2d
490, 1996-1239 (La. App. 3 Cir. 1997).
There is little, if any, law on the specific issue of a parent’s negligence leading to injury or death of a
child since Louisiana’s adoption of the pure comparative fault system. Under Louisiana law prior to the 1996
amendment of LSA C.C. Art. 2323 and 2324, when a minor was injured, damages for the injury belonged to the
minor child. Coleman v. Audobon Insurance Co., 572 S.2d 352 (La. App. 1st Cir. 1990); Aucoin v. Louisiana Dept.
of Transp. and Dev., 712 S.2d 62 (La. 1998). When a parent brought suit as a tutrix or guardian to recover med-
ical expenses that belonged to a child, the parent’s recovery was not personal and could not be reduced by the
parent’s percentage of fault. Id. (applying the contributory fault principles to a 1990 accident).
With the 1996 revision of Civil Code article 2324 and the introduction of pure comparative fault, fault
which is allocated to a parent for breach of a duty to supervise a child thereby reduces the award to the child. “A
joint tortfeasor shall not be liable for more than his degree of fault .…” LSA C.C. Art. 2324 (b).
416  v  Product Liability Conference  v  April 2011
The applicability of comparative fault in product liability cases is to be made on a case-by-case basis.
Bell v. Jet Wheel Blast, Div. of Ervin Industries, 462 So. 2d 166 (La. 1985).
Where the threat of a reduction in recovery will provide consumers with an incentive to use a
product carefully, without exacting an inordinate sacrifice of other interest, comparative prin-
ciples should be applied for the sake of accident prevention. The recovery of a plaintiff who has
been injured by a defective product should not be reduced, however, in those types of cases in
which it does not serve realistically to promote careful product use or where it drastically reduces
the manufacturer’s incentive to make a safer product.
Id. at 171-172; see also Scott v. American Tobacco Co., Inc., 830 So. 2d 294, 296 (La. 2002).
BURDEN OF PROOF: Burden of Proof Rests Upon the Defendant
The party asserting the defense of comparative fault bears the burden of proving by a preponder-
ance of the evidence that the negligence of the other party was the cause in fact of the accident. Trahan v. Sav-
age Industries, Inc., 692 S.2d 490. Under the comparative fault statute, the Court inquires to determine the fault
of all persons causing or contributing to injury, death or loss, regardless of whether the person is a party to the
action or a non-party. State Dept. of Transp. and Dev. v. Cecil, 966 S.2d 131 (La. App. 2d Cir. 2007).
QUESTION OF LAW OR FACT: Question of law
The determination of whether comparative fault is applicable to a particular case has always been
made by the Trial or Appellate Court. Landry v. State, 495 So. 2d 1284 (La. 1986). It is, therefore, a legal question
to be decided by the court. Falgoust v. Richardson Industries, Inc., 552 So. 2d 1348 (La. App. 5th Cir. 1989), writ
denied, 558 So. 2d 1126 (La. 1990). The finding of percentages of fault or shares of negligence pursuant to the
comparative fault statute is a factual determination. Rideau v. State Farm Mut. Auto. Ins. Co., 970 So. 2d 564 (La.
App. 1st Cir. 2007), rehearing denied, writ denied, 972 So. 2d 1168 (La. 2008).
LEGAL AUTHORITY: Statutory
Louisiana Civil Code articles 2323 and 2324, supra.
SPECIAL CONSIDERATIONS: Pleading Issues
The defendant in a principle action may bring in any person, including a co-defendant who is or may
be liable to him for all or part of the principal demand. LSA-C.C.P. Art. 1111. Article 1005 requires the answer
to set forth affirmatively negligence, or the fault of the plaintiff and others. LSA-C.C.P. Art. 1005. As a result of
Louisiana’s adoption of comparative fault, assumption of the risk is no longer a distinct legal concept, which
acts as a complete bar to the plaintiff ’s recovery. Instead, the plaintiff ’s disregard of risk is among the factors to
be considered in assessing percentages of negligence and fault. See LSA C.C. Art. 2323 and Murray v. Ramada
Inn, Inc., 521 So. 2d 1123 (La. 1988).
JURY INSTRUCTION: Contributory Negligence; Comparative Fault; Proximate Cause; Imputed Negli-
gence
Each state court judge generally has their own set of instructions and then the parties submit and
argue over “special” charges specific to the facts of their case. It is presently settled that the trier of fact is to
allocate fault equaling 100 percent to all “involved” persons, i.e., to all persons for whom there is a sufficient evi-
dentiary basis to conclude that they have “caused” or “contributed” to the injury, death or loss. See comments to
18 La. Civ. L. Treatise, Civil Jury Instructions §15.01 (2d ed.) If the trial judge is persuaded that there is no evi-
dence that a non-party or third person might be at fault, then it is not error to refuse to give an instruction as to
the fault of such a person. See id. (citing Vascocu v. Acme Cement Products, Inc., 610 So .2d 258 (La. App. 3d Cir.
1992)).

The Parental Negligence Doctrine  v  Shirley  v  417


A Louisiana pattern instruction reads:
§15.01. Multiple party instructions—Solidarity problems
At the close of these instructions, I will be giving you a list of questions to be answered. These
have been prepared by me and my staff with the help of the lawyers in this case.
Among the questions that we will be asking you to answer are some which concern the degree of
fault which is to be assigned to the various parties in this case. When there are multiple parties
in a case, as we have here, and not just one plaintiff and one defendant, the law requires that you
assign degrees or percentages of fault which add up to 100 percent of the responsibility for this
incident, even when some of the parties to whom you are assigning fault are not actually parties
to this law suit.
So, my questions will be asking you to assign a percentage of fault, if any, to: (1) each of the sev-
eral defendants; (2) any other person or entity involved, even though not a defendant in these
proceedings; and (3) plaintiff himself.
18 La. Civ. L. Treatise, Civil Jury Instructions §15.01 (2d ed.)

XX. Maine
Timothy Malin
Hinshaw & Culbertson
ACCEPTANCE OF THE DOCTRINE: Partially.
Under Main law, the negligence of a parent in failing to supervise his child cannot be imputed to the
child in a personal injury action. Maine has rejected the contention that the parent and child are a single entity
for comparative fault purposes. In the personal injury setting, Maine holds that the negligence of a parent is
properly placed before the jury by way of a counterclaim against the parent for contribution. LaBier v. Pelletier,
665 A.2d 1013 (Me. 1995).
With regard to wrongful death, a parent’s negligence may not be imputed a deceased child, but the
parent’s contributory fault shall be considered as the parent is a beneficiary under Maine’s wrongful death
statute, 14 M.R.S.A. §156. Where the parent, claiming as beneficiary, is at least as culpable as the Defendant,
Maine’s comparative negligence statute bars recovery. AMICA Mutual Insurance Company v. Estate of Pecci, 953
A.2d 369 (Me. 2008); 18 M.R.S.A. §2-804; 14 M.R.S.A. §156.
The negligence of one parent is not imputable to the other parent. Illingworth v. Madden, 192 A.273
(Me. 1937).
APPLICATION OF THE DOCTRINE: Comparative Negligence
According to 14 M.R.S.A. §156, when a person suffers death or damage as a result of that party’s own
fault and partly of the fault of any other person or persons, a claim in respect of that death or damage may not
be defeated by reason of the fault of the person suffering the damage, but the damage recoverable in respect
thereof must be reduced to such extent as the jury thinks just and equitable having regard to the claimant’s
share in the responsibility for the damage. Section 156 goes on to state, however, that if such claimant is found
by the jury to be equally at fault, the claimant may not recover. 14 M.R.S.A. §156. Maine has rejected the con-
tention that the parent and child are a single entity for comparative negligence purposes. As such, parental
negligence may not be imputed to the child. Parental negligence is properly brought before the jury by way of
counterclaim for contribution. LaBier v. Pelletier, 665 A.2d 1013 (Me. 1995). Where the parent is a beneficiary
under the wrongful death statute, 18 M.R.S.A. §2-804, the parent’s negligence will reduce his recovery pur-

418  v  Product Liability Conference  v  April 2011


suant to his percentage of fault. Where the negligent parent beneficiary is at least equally as culpable as the
Defendant, that parent’s recovery will be barred pursuant to 14 M.R.S.A. §156. AMICA Mutual Insurance Com-
pany v. Estate of Pecci, 953 A.2d 369 (Me. 2008). In Maine, a husband and wife do not constitute a legal com-
munity for comparative negligence purposes. As such, the negligence of one parent may not be imputed to the
other. Illingworth v. Madden, 192 A.273 (Me. 1937).
BURDEN OF PROOF: Burden of Proof Rests Upon Defendant
Under 14 M.R.S.A. §156, the Defendant has the burden of showing the comparative negligence of the
Plaintiff by a preponderance of the evidence. Minott v. F.W. Cunningham & Sons, 413 A.2d 1325 (Me. 1980).
QUESTION OF LAW OR FACT: Question of Fact
So long as the fault of the respective parties is factually in dispute, it is the sole prerogative of the jury
to determine the comparative degrees of fault of each of the parties to the action. Minott v. F.W. Cunningham &
Sons, 413 A.2d 1325 (Me. 1980).
LEGAL AUTHORITY: Common law and Statutory
LaBier v. Pelletier, 665 A.2d 1013 (Me. 1995); AMICA Mutual Insurance Company v. Estate of Pecci, 953
A.2d 369 (Me. 2008); Illingworth v. Madden, 192 A.273 (Me. 1937); Minott v. F.W. Cunningham & Sons, 413 A.2d
1325 (Me. 1980); 14 M.R.S.A. §156; 18 M.R.S.A. §2-804
SPECIAL CONSIDERATIONS: Waiver of Right to Recovery by Negligent Parent Beneficiary
The parent beneficiary may waive his or her interests in any recovery under the wrongful death stat-
ute to avoid the affirmative defense of comparative negligence being brought before the jury and any bar that
may be applicable under the comparative negligence statute. See AMICA Mutual Insurance Company v. Estate of
Pecci, 953 A.2d 369 (Me. 2008).
JURY INSTRUCTIONS:
Maine’s Jury Instructions are not available on Westlaw, but are available for review on Lexis. The rel-
evant instructions include Main Jury Instruction Manual §7-6 (counterclaims), §7-11 and 12(burden of proof),
§7-23 (implied warranty), §7-24 (express warranty), §7-25 (strict product liability), §7-68 (child’s negligence),
and §7-85 (comparative negligence).

XXI. Maryland
Sidney Leech
Goodell, DeVries, Leech & Dann, LLP
ACCEPTANCE OF THE DOCTRINE: No, unless “extraordinary circumstances” exist. To date, no court
in Maryland has applied this exception.
Under Maryland law, the negligence of a parent or custodian may not be imputed to the infant. Md.
Code Ann., Cts & Jud. Proc. §10-910. Maryland courts have repeatedly applied the statute to both wrongful
death and negligence claims. E.g, Matthews v. Amberwood Associates Ltd P’ship, Inc., 719 A.2d 119 (Md. 1998)
(wrongful death); Palms v. Shell Oil Co., 332 A.2d 300 (Md. 1975) (negligence). In light of this statute, therefore,
a parent’s negligence will only constitute an “independent and superseding cause of the child’s injuries” in an
“extraordinary situation.” Caroline v. Reicher, 304 A.2d 831 (Md. 1973). Simply put, the child’s recovery is barred
only if the parent’s negligence was the principal action that brought about the injury. Id. at 129-30.
No Maryland case to date has applied the exception, however, thereby indicating that the circum-
stances must be quite “extraordinary.” See Matthews, 719 A.2d at 579-80 (finding that a mother allowing infant

The Parental Negligence Doctrine  v  Shirley  v  419


to have unsupervised play with a pit bull was not extraordinary enough to be a superseding cause); Caroline,
304 A.2d at 130 (finding that the a child’s lead poisoning was not independently caused by a parent’s lack of
supervision); Palms, 332 A.2d at 545 (finding that a parent’s momentary lack of supervision in which child fell
out of window was a not an independent and superseding cause of child’s injuries).
APPLICATION OF THE DOCTRINE: Intervening Act as a Superseding Cause
If the exception were to apply, liability is avoided by the doctrine of intervening acts. In Maryland,
mis doctrine applies when “unusual” and “extraordinary” independent, intervening negligent acts that could
not have been anticipated by the original tortfeasor occur. McGowans v. Howard, 197 A.2d 915, 918 (Md. 1964).
Adhering to the §447 of the Restatement (Second) of Torts, an act is only superseding in Maryland if:
(a) the actor at the time of his negligent conduct should not have realized that a third person might
so act; or
(b) a reasonable man knowing the situation existing when the act of the third person was done would
regard it as highly extraordinary that the third person had so acted; or
(c) the intervening act is not a normal consequence of a situation created by the defendant’s conduct
and the manner in which it is done is extraordinarily negligent.
Pittway Corp. v. Collins, 973 A.2d 771 (Md 2009). As such, in a situation involving parental negligence,
the relevant inquiry is whether the actions of the parents could be reasonably anticipated in light of the circum-
stances. Halliday v. Sturm, Ruger & Co., Inc. 770 A.2d 1072, 1081, n.4 (Md. App. 2001) (noting that test is sub-
stantially similar to the foreseeability test). If the negligence of the parent is the superseding cause of the child’s
injury, Maryland law provides that the child shall then be barred from recovery.
BURDEN OF PROOF: Burden of Proof Implicitly Rests on the Defendant to Show Extraordinary Cause
was Sole Cause of Child’s Injuries.
The plaintiff in a suit based on negligence or wrongful death bears the burden of showing that it was
the negligence or actions of the defendant, and not an intervening source, which caused the injuries. Washing-
ton Metropolitan Area Transit Authority v. Seymour\ 874 A.2d 973 (Md. 2005). Even if the plaintiff shows that
the defendant was negligent, the plaintiff must still further show that negligence was the direct and proximate
cause of the injury. Id. The existence of the imputation statute, however, places some of the burden of proof on
the defendant to show that the parent’s actions were so extraordinary as to be independent and superseding
causes of the child’s injuries. See generally Caroline, 304 A.2d at 834.
QUESTION OF LAW OR FACT:
The Maryland Court of Appeals has “recognized that the determination of whether the intervening act
of a third person is a superseding cause which discharges the original actor from liability may be a question for
the trier of fact.” Caroline, 304 A.2d at 834. When the facts of the case “place it in the middleground,” the issue
is properly left for the jury. Id; Palms, 332 A.2d at 545-46. When the evidence is such that the facts “gravitate the
issue to one of the two poles,” the issue becomes one of law. Caroline, 304 A.2d at 834.
LEGAL AUTHORITY: Statutory and common law
See above for case and statutory citations regarding parental negligence doctrine. Maryland law pro-
vides for a specific cause of action for wrongful death. Md. Code Ann., Cts & Jud. Proc. §3-904.
SPECIAL CONSIDERATIONS: Pleading and Timing Issues
The defendant may claim at any time, up to and including the time of trial, that its actions were not
the cause of the child’s injuries. In doing so, the defendants are showing that plaintiffs failed to meet their bur-
den of proof.

420  v  Product Liability Conference  v  April 2011


When claiming that the parent’s negligence was the superseding cause of the child’s injuries, moreover,
the defendant must keep in mind the time between the defendant’s alleged negligence and the injury. Leiden-
frost v. Atlantic Masonry, Inc., 201 A.2d 336 (Md. 1964) (“Passage of time between the act of negligence and the
subsequent injury is a factor to be considered, for it increases the possibility that there was an intervening inde-
pendent act of a third party which would make the doctrine inapplicable.”).
JURY INSTRUCTIONS: Contributory Negligence
Several Maryland Pattern Jury Instructions regarding contributory negligence and parental negligence
are available for review. Md. Pattern Jury Instr. Civ. §19:9, No Imputation: Parent to Minor; Md. Pattern Jury
Instr. Civ. §19:10, Definition; Md. Pattern Jury Instr. Civ. §19:11, Contributory Negligence - Generally; Md. Pat-
tern Jury Instr. Civ. §19:12, Contributory Negligence - Minors.

XXII. Massachusetts
Andy Levin
David Barry
Sugarman, Rogers, Barshak & Cohen, P.C.
ACCEPTANCE OF THE DOCTRINE: Yes, partially.
Under Massachusetts law, a parent’s negligence cannot be imputed to a child so as to preclude an
action by the child for injury to the child’s person or property. M.G.L. c. 231§85D (“In all actions to recover
damages for injury to the person or property of an infant, the negligence of the parent or other custodian of the
infant shall not be imputed to the infant from the fact of such parenthood or custodianship.”). The statute does
not apply, however, to an action to recover damages for the death of an infant. St. 1945, c. 352, §§3, 4.
Note that in an action for wrongful death premised on a breach of warranty theory (the functional
equivalent of strict liability in Massachusetts) as opposed to negligence, the imputation of the parent’s negli-
gence to the child will, have no effect because in such instances the focus of the inquiry is upon the character of
the product and comparative negligence is inapplicable. Correia v. Firestone Tire & Rubber, Co., 388 Mass. 342
(1983) (Holding that comparative negligence is not a full or partial defense to a wrongful death action based on
a breach of warranty theory).
APPLICATION OF THE DOCTRINE: Comparative Negligence
As stated above, the parent’s negligence is irrelevant in an action for an injury to the child. Under the
Massachusetts wrongful death statute, however, in an action predicated on the defendant’s negligence, the com-
parative negligence statute will serve to reduce, or bar if greater than 50 percent, the recovery for a decedent’s
heirs when the decedent’s negligence contributed to the decedent’s death. M.G.L. c. 231, §85. Because no case
applying the imputation of a parent’s negligence to a recovery for the child’s death has been decided since the
current wrongful death statute and the comparative negligence statute were both in effect, the question of what
impact, if any, the imputation of a parent’s negligence to the child decedent may have on that parent’s recovery,
and the recovery of any other “takers” under the wrongful death statute, is undecided.
In Santos v. Chrysler, the Supreme Judicial Court held that, contrary to prior law which held that a
party who negligently contributed to a death could not recover for that death, a parent whose negligence con-
tributed to a child’s death would be able to recover under the wrongful death statute. Santos v. Chrysler, 430
Mass. 198, 215 (1999). In so holding, the SJC reasoned that a beneficiary under the wrongful death statute (e.g.,
the parent in the case of a child’s death) was akin to a plaintiff under the comparative negligence statute (even
though not nominally a plaintiff) whose negligence should be compared to the negligence of all defendants.

The Parental Negligence Doctrine  v  Shirley  v  421


Therefore, the SJC reasoned, the passage of the comparative negligence statute effectively abolished the com-
mon law rule that a negligent beneficiary could not recover under the wrongful death statute. Id.
While establishing that since the adoption of the comparative negligence statute a negligent parent
is not barred from recovery for the death of his child, the Santos decision left a number of crucial unanswered
questions. First, the court noted that the defendant in Santos had not asked for a reduction in the recovery, but
had merely sought a complete bar to a recovery by the negligent parent. Id. The Santos court therefore did not
address the question of whether the beneficiary’s recovery would be reduced by the percentage fault of the ben-
eficiary in causing the decedent’s death. Id. at 215, n. 25. In addition, because Santos did not present a situation
where the parent’s negligence was related to his care or custody of the child, the decision did not discuss how
the imputation of a parent’s negligence to a child could impact an overall recovery under the wrongful death
statute. Lastly, as there was only one surviving “taker” under the wrongful death statute, there was also no dis-
cussion of how one “taker’s” negligence might impact another taker’s recovery, whether or not that negligence is
imputed to the child. Id.
It seems clear under comparative negligence principles that a parent’s negligence should, at a mini-
mum, serve to reduce that parent’s recovery as the parent beneficiary is considered a “plaintiff ” under the com-
parative negligence statute. Santos, 430 Mass. at 215; M.G.L. c. 231, §85. Similarly, if the parent’s negligence is
imputed to the child (which it arguably should be in those instances where the parent is responsible for the care
and custody of the child), that negligence should reduce the entirety of the recovery because the decedent’s neg-
ligence serves to reduce the entirety of the recovery.2 M.G.L. c. 231, §85. Finally, the question of how one bene-
ficiary’s negligence might affect another beneficiary’s recovery is far more difficult to predict. On the one hand,
because the wrongful death statute has been interpreted to require that the jury determine separate recoveries
for each “taker” under the statute, the parent’s negligence should arguably only serve to reduce his recovery; on
the other hand, because the comparative negligence statute is aimed at fairly apportioning fault between the
defendant and the plaintiffs, one beneficiary’s negligence should arguably serve to reduce the entirety of the
recovery, not just the recovery for the negligent beneficiary.
BURDEN OF PROOF: Burden of Proof Rests Upon the Defendant
Comparative negligence is an affirmative defense, and the burden of proof lies with the defendant. See,
e.g., DeSanctis v. Lynn Water & Sewer Comm’n, 423 Mass. 112 (1996).
QUESTION OF LAW OR FACT: Generally a Question of Fact
Generally, the issue of whether a party is comparatively negligent is a question of fact for the jury. See.,
e.g., O’Sullivan v. Shaw, 431 Mass. 201 (2000). In addition, the question of whether the child was in the care or
custody of the negligent parent is a question of fact for the jury to decide. See, e.g., O’Connor v. Benson Coal, 301
Mass. 145 (1938).
LEGAL AUTHORITY: Statutory and common law
See statutory and case citations above.
SPECIAL CONSIDERATIONS: Actions for Contribution
Although a parent’s negligence does not bar or reduce the recovery in an action for personal injury
or property damage based upon negligence, or for wrongful death when the claim is predicated on a breach of
warranty theory, a third-party action for contribution against the negligent parent can effectively reduce the
amount that a defendant will ultimately pay by the parent’s pro rata share of the recoverable damages. M.G.L. c.
231B, §1, et seq.
QUESTION OF LAW OR FACT: Question of Fact

422  v  Product Liability Conference  v  April 2011


In tort actions, the trier of fact is responsible for determining the percent of comparative negligence
for all those who proximately cause plaintiff ’s injury and subsequent damages. Estate of Shinholster v. Annapo-
lis Hosp., 685 N.W.2d 280 (Mich. 2004). Pursuant to Michigan law, the fact finder must assign “the percentage
of total fault to all persons that contributed to the death or injury, including all plaintiffs.” Mich. Comp. Laws
§600.6304.
LEGAL AUTHORITY: Statutory and Leading Case Authority
Apportionment of fault under Michigan’s comparative negligence scheme is governed by Mich. Comp.
Laws §§600.2957-600.2960 and §600.6304.
The leading case in Michigan on parental negligence is Byrne v. Schneider’s Iron & Metal, Inc., 475
N.W.2d 854 (Mich. Ct. App. 1991).
SPECIAL CONSIDERATIONS: Pleading Issues and Tort Reform
Pursuant to the Michigan Court Rules, an affirmative defense, such as comparative negligence, “must
be stated in a party’s responsive pleading, either as originally filed or as amended,” or it is waived. M.C.R.
§2.111(F)(3). Thus, comparative negligence must be alleged in defendant’s answer to plaintiff ’s complaint. If
the original answer is amended, defendant must re-allege comparative negligence in its amended answer, or the
defense will be waived. Grzesick v. Cepela, 603 N.W.2d 809, 814 (Mich. Ct. App. 1999).
Byrne v. Schneider’s Iron & Metal, Inc., the leading Michigan case on parental negligence, was decided
in 1991. In 1995, the Michigan legislature amended its comparative negligence apportionment laws to eliminate
joint and several liability as part of tort reform efforts. 1995 Mi. P.A. 161; Dresser v. Cradle of Hope Adoption Ctr.,
Inc., 421 F. Supp. 2d 1024 (E.D. Mich. 2006). In 2006, a federal court applying Michigan law opined that Michi-
gan courts had yet to address how to “reconcile the statutes that require apportionment of damages and abolish
joint and several liability with the common law rule against imputing a parent’s negligence to a child.” Dresser,
421 F. Supp. 2d at 1027. In denying defendant’s motion in limine to exclude evidence of a child’s parent’s negli-
gence, the federal court held that, based on its reading of Michigan case law and tort reform statutes, “Michigan
courts would conclude that liability must be apportioned under section 600.2957(1) to parents of an injured
child, even if the parents are immune from suit.” Id. at 1028. If Michigan courts follow the federal court’s inter-
pretation, Bryne would essentially be overruled because although a parent’s negligence would not be imputed
to the child, the child would not be able to recover from a third-party the damages apportioned to the negli-
gent parent, thus affectively reducing the child’s damages by the percentage fault assigned to the parent. There
is some indication, however, that Michigan courts will not interpret the law as such. See Slager v. Kidd Kourt,
L.L.C., 2010 Mich. App. LEXIS 1866, *40-41 (Mich. Ct. App. 2010) (dissenting opinion) (“Defendant’s reliance
on [Dresser] is misplaced since the court misinterpreted . . . this issue of immunity.”).

XXIII. Michigan
Norma Gant
Clark Hill PLC
ACCEPTANCE OF THE DOCTRINE: Yes, partially.
Under Michigan law, the imputation of a parent’s negligence to the child depends on whether the suit
is being brought on behalf of the child or the parent. Evidence of a parent’s comparative negligence is inadmis-
sible in a suit brought on the child’s behalf, even if the parent is the ultimate beneficiary of the recovery. Byrne v.
Schneider’s Iron & Metal, Inc., 475 N.W.2d 854, 860 (Mich. Ct. App. 1991). A parent’s negligence is relevant, how-
ever, where the parent is seeking recovery on his or her own behalf. Id.

The Parental Negligence Doctrine  v  Shirley  v  423


In a wrongful death suit under Mich. Comp. Laws §600.2922, a parent’s negligence cannot be imputed
to the child to reduce an award to the child’s estate for the conscious pain and suffering of the child, even
though such award will inure to the benefits of the parents. Comment to M. Civ. J.I. §13.09 (summarizing the
holding of Byrne, 475 N.W.2d 854). If, however, the parent is seeking damages for loss of the deceased child’s
services and society and companionship, the parent’s negligence will reduce his or her damages under the doc-
trine of comparative negligence. Byrne, 475 N.W.2d. at 860.
Additionally, the negligence of one parent cannot be imputed to the other parent so as to bar the other
parent’s recovery. Love v. Detroit J. & C. R. Co., 135 N.W. 963, 966 (Mich. 1912).
APPLICATION OF THE DOCTRINE: Comparative Negligence
Michigan has adopted the doctrine of pure comparative negligence. Placak v. Sterling Heights, 275
N.W.2d 511 (Mich. 1979). Apportionment of fault under comparative negligence is governed by statute. Mich.
Comp. Laws §600.2957 et seq. Pursuant to the Michigan statute, a plaintiff ’s recovery is reduced by the percent-
age of fault assigned to the plaintiff by the trier of fact. Mich. Comp. Laws §600.2957. If, however, a plaintiff ’s
fault is greater than the aggregate fault of all defendants, plaintiff cannot recover noneconomic damages. Mich.
Comp. Laws §600.2959. As applied in parental negligence situations, if a parent is found to be more than 50
percent at fault, §600.2959 acts as a complete bar to the parent’s recovery of noneconomic damages sustained
as a result of injury to or death of the child. See M. Civ. J.I. §11.01 (“The plaintiff, however, is not entitled to
noneconomic damages if [he/she] is more than 50 percent at fault for [his/her] damages.”). Note, however, that
a parent’s percentage of fault, even if more than 50 percent, is still irrelevant in a suit brought by a child or the
child’s estate.
BURDEN OF PROOF: Burden of Proof Rests Upon the Defendant
Comparative fault is an affirmative defense, and as such, the defendant bears the burden of prov-
ing that the plaintiff ’s negligence was a proximate cause of the plaintiff ’s own damages. Mich. Comp. Laws
§600.2960; Mich. Comp. Laws §600.6304; Lamp v. Reynolds, 645 N.W.2d 311, 316 (Mich. Ct. App. 2002). To
meet the burden, defendant must prove that the plaintiff was both a cause in fact and a legal cause of his or her
injuries and that the plaintiff failed to exercise the care that a reasonable person would exercise under the cir-
cumstances. Lamp, 645 N.W.2d at 316; Yax v. Knapp, 2006 Mich. App. LEXIS 2682, *6-7 (Mich. Ct. App. 2006).
JURY INSTRUCTIONS: Comparative Negligence; Proximate Cause; Effect of Parent’s Negligence on
Claim of Child
M. Civ. J.I. §11.01: Comparative Negligence; M. Civ. J.I. §11.02: Negligence – Not an Issue as to One or
More Plaintiffs; M. Civ. J.I. §15.01; M. Civ. J.I. §13.09: Effect of Parent’s Negligence on Claim of Child. These, and
all Michigan Civil Jury Instructions, are available at http://courts.mi.gov/mcji/MCJI.htm.

XXIV. Minnesota
John Monical
Paul Weltlich
Lawrence Kamin Saunders & Uhlenhop LLC
ACCEPTANCE OF THE DOCTRINE: Yes, partially. Parental negligence will bar recovery for the
wrongful death of a child. However, negligence of the parents will not be imputed to a child to bar recovery
when a child is injured.
In Minnesota, the negligence of a parent is not imputed to the parent’s child and will not bar a child
from recovering for injuries sustained through the negligence of a third party. See Peterson v. Richfield Plaza,

424  v  Product Liability Conference  v  April 2011


Inc., 252 Minn. 215, 89 N.W.2d 712 (1958) (the negligence of a parent will not be imputed to a child non sui
juris so as to bar recovery when the action is brought to recover for the child); Ewing v. George Benz & Sons, 224
Minn. 508, 28 N.W.2d 733 (1947); Forseth v. Duluth-Superior Transit Co., 202 Minn. 447, 278 N.W. 904 (1938);
Brennan v. Minnesota, Dakota & Western Railway Co., 130 Minn. 314, 153 N.W. 611 (1915) (the negligence of a
parent is not imputable to his child, and will not bar the child from recovering from a third party for injuries
sustained through the concurring negligence of the parent and such third party).
However, the parent’s negligence will bar the parent’s separate claim for damages arising out of the
death or injury to the child. See Hondl v. Chicago Great Western Ry. Co., 249 Minn. 306, 82 N.W.2d 245 (1957);
Mattson v. Minnesota & N.W. Ry. Co., 98 Minn. 296, 108 N.W. 517 (1906) (the negligence of a parent will bar an
action by him for loss of services of his child). The child’s negligence will bar the claim of the child and the sep-
arate claim of the parent.
APPLICATION OF THE DOCTRINE: Modified Comparative Negligence
Minnesota follows a system using the modified comparative negligence – 51 percent rule. Under Min-
nesota law, if a plaintiff ’s carelessness or negligence helped cause his injury, the amount of damages the plain-
tiff may recover is reduced by his percentage of fault. If a plaintiff were more than 50 percent at fault for his
injury, the plaintiff can not recover any damages from anyone. A plaintiff may recover damages if he was less
than 50 percent at fault, but, his damages are reduced by his percentage of fault. If more than one person caused
a plaintiff ’s injury, each person is liable only for a portion of his damages. The portions are set by their percent-
ages of fault. However, under Minnesota’s joint and several liability rules, each person may be responsible for
paying all of a plaintiff ’s damages.
See Minnesota Comparative Fault Act and Apportionment of Damages statutes cited below.
Medical Expenses:
In Faber v. Roelofs, 298 Minn. 16, 25, 212 N.W.2d 856, 862 (1973), the Supreme Court of Minnesota
noted the right of the responsible parents to recover for their child’s medical expenses:
“This court has long recognized that the responsible parent of an injured child has a right of
action for the injured child’s medical expenses. . . . Although the parent’s action is subject to any
defenses that could be urged against the child, . . . the parent’s action and the child’s action are
essentially separate.”
BURDEN OF PROOF: Burden of Proof Rests Upon the Defendant
The party that would have benefitted from establishing another’s negligence has the burden of proof
on the issue of comparative fault. See Chemlease Worldwide, Inc. v. Brace, Inc., 338 N.W.2d 428, 437 (Minn.
1983) (a party who stands to benefit from establishing an affirmative proposition of fact essential to a claim
bears the burden of proof).
QUESTION OF LAW OR FACT: Question of Fact
Although negligence issues are most often questions of fact for the jury, the trial court may decide
negligence and proximate cause issues on summary judgment. See Holmquist v. State, 425 N.W.2d 230, 235
(Minn. 1988). Where the evidence is such that reasonable persons cannot differ, the issue of causation becomes
one of law for the court. Shymanski v. Nash, 312 Minn. 304, 306, 251 N.W.2d 854, 856 (1977).
LEGAL AUTHORITY:
Minnesota Wrongful Death Act, §573.02
Subd. 1. Death action.

The Parental Negligence Doctrine  v  Shirley  v  425


When death is caused by the wrongful act or omission of any person or corporation, the trustee
appointed as provided in subdivision 3 may maintain an action therefor if the decedent might have maintained
an action, had the decedent lived, for an injury caused by the wrongful act or omission.
Subd. 2. Injury action.
When injury is caused to a person by the wrongful act or omission of any person or corporation and
the person thereafter dies from a cause unrelated to those injuries, the trustee appointed in subdivision 3 may
maintain an action for special damages arising out of such injury if the decedent might have maintained an
action therefor had the decedent lived.
Minnesota Comparative Fault Act, §604.01
Contributory fault does not bar recovery in an action by any person or the person’s legal representative
to recover damages for fault resulting in death, in injury to person or property, or in economic loss, if the con-
tributory fault was not greater than the fault of the person against whom recovery is sought, but any damages
allowed must be diminished in proportion to the amount of fault attributable to the person recovering. The
court may, and when requested by any party shall, direct the jury to find separate special verdicts determining
the amount of damages and the percentage of fault attributable to each party and the court shall then reduce
the amount of damages in proportion to the amount of fault attributable to the person recovering.
Apportionment of Damages, §604.02
Subd. 1. Joint liability.
When two or more persons are severally liable, contributions to awards shall be in proportion to the
percentage of fault attributable to each, except that the following persons are jointly and severally liable for the
whole award:
(1) a person whose fault is greater than 50 percent;
(2) two or more persons who act in a common scheme or plan that results in injury;
(3) a person who commits an intentional tort; or
(4) a person whose liability arises under chapters 18B - pesticide control, 115 - water pollution con-
trol, 115A - waste management, 115B - environmental response and liability, 115C - leaking underground stor-
age tanks, and 299J - pipeline safety, public nuisance law for damage to the environment or the public health,
any other environmental or public health law, or any environmental or public health ordinance or program of a
municipality as defined in section 466.01.
...
Subd. 3. Product liability; reallocation of uncollectible amounts.
In the case of a claim arising from the manufacture, sale, use or consumption of a product, an amount
uncollectible from any person in the chain of manufacture and distribution shall be reallocated among all other
persons in the chain of manufacture and distribution but not among the claimant or others at fault who are not
in the chain of manufacture or distribution of the product. Provided, however, that a person whose fault is less
than that of a claimant is liable to the claimant only for that portion of the judgment which represents the per-
centage of fault attributable to the person whose fault is less.
SPECIAL CONSIDERATIONS: Contributory and Comparative Negligence
Must be Plead as Affirmative Defenses
Contributory negligence is an affirmative defense and must be pleaded. Shapiro v. Stern, 2004 Minn.
App. LEXIS 1150 (2004); H.L. Elliott Jobbing Co. v. Chicago St. Pl, M. & O. Ry Co., 136 Minn. 138, 139, 161 N.W.

426  v  Product Liability Conference  v  April 2011


390, 390-91 (1917). But if contributory negligence appears from the plaintiff ’s own evidence or from evidence
admitted without objection, the defendant may take advantage of it, even though it is not pleaded. Willmar Gas
Co. v. Duininck, 239 Minn. 173, 176, 58 N.W.2d 197, 199 (1953).
JURY INSTRUCTIONS: Relevant Minnesota Civil Jury Instructions:
Comparative Fault, CIVJIG 28.15
Percentage of fault
If you find that (plaintiff ’s) (negligence) (fault) is greater than 50 percent, then (plaintiff) will receive
no damages. If you find that (plaintiff ’s) (negligence) (fault) is 50 percent or less, then (plaintiff ’s) damages
will be reduced by that percent. If you assigned a percentage of (negligence) (fault) to (plaintiff), I will do the
reduction of damages. You are not to reduce any damage amounts yourselves for this reason. This instruction
is not meant to suggest that you should find anyone (negligent) (at fault). It is to tell you about the relationship
between the percentage of (negligence) (fault) and the damages received.
Percentage of fault
If you find that (plaintiff) has a percent of (negligence) (fault) that is greater than any individual
defendant, then (plaintiff) will not receive any damages from that defendant. This instruction is not meant to
suggest that you should find anyone (negligent) (at fault). It is to tell you about the relationship between the
percentage of (negligence) (fault) and the damages received.

XXV. Mississippi
Sean W. Shirley
Thomas R. DeBray, Jr.
Balch & Bingham LLP
ACCEPTANCE OF THE DOCTRINE: Yes, partially.
A parent who is negligent in causing the death of a child is subject to a reduction of any damages
award levied against the defendant for wrongful death in proportion to the parent’s level of fault. Hammond v.
Shalala, 2000 WL 640837, at *7 (N.D. Miss. 2000) (citing Miss. Code Ann. §85-5-7; Hunter v. Gen. Motors Corp.,
729 So. 2d 1264 (Miss. 1999)) (emphasis added).
However, because parent-child immunity bars a child’s suit against their parents in tort, other wrong-
ful death statutory beneficiaries whom are unemancipated minors are not subject to having their recoveries
reduced in proportion to their parent’s level of fault. Hammond, 2000 WL 640837, at *7. Also, a parent’s negli-
gence may not be imputed to a child in an action by the child or for the child’s benefit against a defendant whose
fault was a contributing cause of the child’s death or injury. E.g., Bunch v. Shaw, 355 So. 2d 1383, 1385-86 (Miss.
1978) (emphasis added). Further, the negligence of one parent may not be imputed to the non-negligent parent
so as to reduce the claim of the non-negligent parent arising out of the child’s injury. See Wright v. Standard Oil
Co., Inc., 470 F.2d 1280, 1287 (5th Cir. 1972) (in an action by the parents to recover damages for medical costs
and loss of the child’s services resulting from injury to the child, the father’s damages were reduced pro rata by
his proportionate share of fault, but the reduction was not applied to the non-negligent mother’s damages).
Finally, if the plaintiff ’s negligence is the sole proximate cause of the plaintiff ’s injury, then such negli-
gence bars recovery. See, e.g., Hammond, 2000 WL 640837, at *1; see also Phillip McIntosh, Encyclopedia of Mis-
sissippi Law §16:3 (Sept. 2010), available at Westlaw MSPRAC-ENC §16:3.
APPLICATION OF THE DOCTRINE: Comparative Fault/Apportionment of Fault

The Parental Negligence Doctrine  v  Shirley  v  427


The doctrine is applied through the principle of comparative negligence. The state of Mississippi
adheres to the doctrine of pure comparative negligence. E.g., Miss. Code Ann. §11-7-15 (2010); Coho Res., Inc. v.
Chapman, 913 So. 2d 899, 911 (Miss. 2005) (“Mississippi is a pure comparative negligence state”). Thus, even if
the plaintiff is ninety percent at fault, he or she still would be entitled to recover ten percent of his or her dam-
ages as opposed to no recovery. Meda B. Lindley, Encyclopedia of Mississippi Law §52:68 (Sept. 2010), available
at Westlaw MSPRAC-ENC §52:68. The principles of comparative fault are applied to non-injured tort-feasors
through Mississippi’s apportionment statute. Miss. Code Ann. §85-5-7 (2010).
BURDEN OF PROOF: Burden of Proof Rests Upon the Defendant
Contributory negligence is an affirmative defense that must be proven by the defendant. Steele v. Holi-
day Inns, 626 So. 2d 593, 598 (Miss. 1993); see also Pearl Pub. Sch. Dist. v. Groner, 784 So. 2d 911, 916 (Miss.
2001) (“apportionment is an affirmative defense that must be pled and proven”). To prove the percentage of
fault that should be allocated to the plaintiff, the defendant must show that the negligent acts of the plaintiff
proximately caused some of the injuries at issue. See Meda B. Lindley, Encyclopedia of Mississippi Law §52:68
(Sept. 2010), available at Westlaw MSPRAC-ENC §52:68.
QUESTION OF LAW OR FACT: Question of Fact
“As interpreted by the Supreme Court of Mississippi, the [apportionment statute] requires that a
fact finder determine on a percentage basis the fault of all whose actions otherwise contribute to proximately
cause injury or death to another person”. Hammond v. Shalala, 2000 WL 640837, at *4 (N.D. Miss. 2000) (cit-
ing Hunter v. Gen. Motors Corp., 729 So. 2d 1264 (Miss. 1999)) (emphasis in the original). Additionally, the
fact finder should be allowed to consider the alleged negligence of the parents when assessing levels of fault,
because the fact finder, when determining liability, is to consider all conduct which in any way contributes to
cause a death or injury. Hammond, 2000 WL 640837, at *4; see Miss. Code Ann. §§11-7-15 & 85-5-7 (2010).
LEGAL AUTHORITY: Statutory and Leading Case Authority
In 1989, the Mississippi state legislature adopted an apportionment statute which provides for the
reducing of recovery for one or all wrongful death beneficiaries based on the contributing fault of a beneficiary.
Miss. Code Ann. §85-7-7 (2010). Applying the doctrine of comparative fault, the state apportionment statute
can allow for the reduction of the recovery of a negligent parent bringing a wrongful death claim after the death
of his or her child. Id.
State case law, see Hammond, 2000 WL 640837, at *7 (citing Hunter v. Gen. Motors Corp., 729 So. 2d
1264 (Miss. 1999)), also provides that in a wrongful death action for a child’s death, the contributory negligence
of the parent can reduce the parent’s recovery in proportion to his or her percentage of fault.
SPECIAL CONSIDERATIONS: Pleading Issues
The Mississippi Rules of Civil Procedure mandate that “[i]n a pleading to a preceding pleading, a
party shall set forth affirmatively … contributory negligence … and any other matter constituting an avoid-
ance or affirmative defense.” Miss. R. Civ. P. 8(c). Thus, all affirmative defenses should be pled in the defendant’s
answer to the complaint.
However, the Rules do allow amendment of the pleadings, stating “[w]hen issues not raised by the
pleadings are tried by [the] express or implied consent of the parties they shall be treated in all respects as
if they had been raised in the pleadings.” Miss. R. Civ. P. 15(b). Even upon objection of the amendment on a
non-pled issue, “the court may allow the pleadings to be amended and shall do so freely when the presentation
of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the
admission of such evidence would prejudice the … defense upon such merits.” Id.
JURY INSTRUCTION: Apportionment of Fault and Comparative Negligence
428  v  Product Liability Conference  v  April 2011
Several Mississippi Practice Model Jury Instructions regarding apportionment of fault and compara-
tive negligence are available for review. Miss. Prac. Model Jury Instr. Civil §11:7, Apportionment of Fault Among
Joint Tortfeasors, available at Westlaw MSPRACJIC §11:7; Miss. Prac. Model Jury Instr. Civil §11:9, Apportion-
ment of Fault – Procedure for Computing Damages – Special Verdict Form – Contributory Negligence, avail-
able at Westlaw MSPRACJIC §11:9; Miss. Prac. Model Jury Instr. Civil §11:11, Apportionment Between Joint
Tortfeasors, available at Westlaw MSPRACJIC §11:11; Miss. Prac. Model Jury Instr. Civil §15:8, Comparative
Negligence – Effect on Damages Compensation, available at Westlaw MSPRACJIC §15:8.

XXVI. Missouri
Thomas E. Rick
Kara T. Stubbs
Baker Sterchi Cowden & Rice, L.L.C.
ACCEPTANCE OF DOCTRINE: Yes, partially.
Under Missouri law, the negligence of a parent is not imputable to a child in an action brought on a
child’s behalf. Graeff v. Baptist Temple of Springfield, 576 S.W.2d 291, 309 (Mo.1978); Rogers v. Toro Manufactur-
ing Company, 522 S.W.2d 632, 638 (Mo.App.1975). However, since Missouri abolished the doctrine of paren-
tal immunity and replaced it with the reasonable parent standard, an injured child or a third party plaintiff
can recover only if the parent fails to meet the standard of care required of parents. Hartman v. Hartman, 821
S.W.2d 852, 856-858 (Mo.1991)(emphasis added).
In a wrongful death action, a beneficiary who is or may be partially at fault for the decedent’s death
may bring a cause of action against others who may also be partially responsible for decedent’s death. State ex
rel. Griffin v. Belt, 941 S.W.2d 570, 573 (Mo.App.1997). However, if a parent brings an action in his own name
for the wrongful death of his child, “the negligence of the parent that contributes to the casualty which pro-
duced the death can be assessed against the parent.” Clark v. Sears, Roebuck & Co., 731 S.W.2d 469, 473 (Mo.
App.1987).
APPLICATION OF DOCTRINE: Comparative Fault / Contribution
Under Missouri law, the doctrine is applied through the principle of comparative negligence. The Mis-
souri Supreme Court abolished contributory negligence as a complete bar to a plaintiff ’s recovery in negligence
cases and adopted a comprehensive system of “pure” comparative fault. Gustafson v. Benda, 661 S.W.2d 11, 16
(Mo. 1983). Under the Missouri pure comparative negligence principles, “the injured party’s own negligence
is compared to that of the negligence of the defendant to determine whether any damages awarded should
be diminished in proportion to the amount of negligence attributable to that plaintiff.” Rill v. Trautman, 950
F.Supp. 268, 272 (E.D.Mo.1996). However, since parental immunity has also been abolished in Missouri, third
parties may bring claims for contribution against parents for negligent acts towards their children. Peterson v.
Summit Fitness, Inc., 920 S.W.2d 928, 935 (Mo.App.1996); Church v. Moon Freight Lines, Inc., 791 F.Supp. 792
(E.D. Mo. 1992).
Missouri statutory law provides plaintiffs with a cause of action for the wrongful death of a minor.
Mo.R.S. §537.080. In a wrongful death action, the comparative fault of the decedent may be assessed against
the beneficiaries. Teeter v. Missouri Highway and Transp. Com’n., 891 S.W.2d 817, 819 (Mo.1995). If a parent
brings a wrongful death action in her own name, the negligence of that parent that contributes to the cause
of death can be assessed against that parent. Clark v. Sears, Roebuck & Co.. 731 S.W.2d at 473. However, in a
wrongful death action involving multiple beneficiaries, if one of the plaintiffs is also a joint tort-feasor, the law
of contribution will be applied among joint tort-feasors and not the law of comparative fault; if comparative
The Parental Negligence Doctrine  v  Shirley  v  429
fault were also applied to limit the defendant’s liability, the defendant would twice obtain the benefit of plain-
tiff ’s fault. Teeter v. Missouri Highway and Transp. Com’n., 891 S.W.2d at 820.
BURDEN OF PROOF: Burden of Proof Rests Upon the Defendant
Comparative fault is an affirmative defense that must be pleaded before evidence and instructions
can be submitted on the case. Lester v. Sayles, 850 S.W.2d 858, 867 (Mo. 1993). Missouri Rule of Civil Procedure
55.08 provides in pertinent part that “(i)n pleading to a preceding pleading, a party shall set forth all applicable
affirmative defenses…, including but not limited to … contributory negligence, comparative fault … and any
other matter constituting an … affirmative defense.” Missouri courts have held that Rule 55.08 applies to the
assertion of comparative fault. State ex rel. Taylor v. Luten, 710 S.W.2d 906, 907 (Mo.App. 1986).
To prove comparative fault, the defendant must prove that the plaintiff ’s conduct contributed to his or
her injury such that defendant’s legal responsibility is either negated or reduced. Rill v. Trautman, 950 F.Supp.
at 272; Business Men’s Assurance Co. V. Graham, 891 S.W.2d 438, 447 (Mo.App.1994). The defendant is entitled
to an instruction of comparative fault if the defendant has met its burden of proof. Rill v. Trautman, 950 F.Supp.
at 272; Rodriguez v. Suzuki, 936 S.W.2d 104, 109 (Mo.1996); Hughes v. Palermo, 911 S.W.2d 673, 674 (Mo.
App.1995).
The defendant also bears the burden of proof with respect to comparative fault in a wrongful death
action. Mo.R.S. §537.085 states that “the defendant may plead and prove as a defense any defense which the
defendant would have had against the deceased in an action based on the same (facts), and which action for
damages the deceased would have been entitled to bring had death not ensued.”
QUESTION OF LAW OR FACT: Generally a Question of Fact
Parties in a negligence action have the right to have their case submitted to a jury under comparative
fault principles if there is evidence from which a jury could find that plaintiff ’s acts or omissions contributed to
the damages. Rill v. Trautman, 950 F.Supp. at 272; Hughes v. Palermo, 911 S.W.2d at 674.
LEGAL AUTHORITY: See above for case and statutory citations.
SPECIAL CONSIDERATIONS: Issues of Pleading
Pursuant to Rule 55.08, when a party asserts an affirmative defense, his or her pleading “shall contain
a short and plain statement of the facts showing that the pleader is entitled to the defense or avoidance.” Busi-
ness Men’s Assurance Co. V. Graham, 891 S.W.2d at 448. The facts supporting such a defense “… must be pled in
the same manner as they would be with all claims.” Id.; (citing Ashland Oil, Inc. V. Warmann, 869 S.W.2d 910,
912 (Mo.App.1994)).
JURY INSTRUCTIONS:
Missouri “has approved instructions and verdict forms for use in comparative fault cases which do not
refer to or require a finding in favor of or against any party. MAI 37.01-37.07 (1986 new.)” Earll v. Consolidated
Aluminum Corp., 714 S.W.2d 932, 936 (Mo.App. 1986). Note that Missouri courts have held that, unless the par-
ties agree otherwise, when there is evidence from which a jury could find that a plaintiff ’s acts contribute to his
or her damages, the case should be submitted to the jury under the comparative fault instructions “regardless
of whether the defendant submits an affirmative defense instruction or not.” Id. at 937.
Missouri Approved Jury Instructions regarding comparative fault are available for review. MAI 37.01
et seq. (1986). MAI 37.01, Comparative Fault – Verdict Directing Modification; MAI 37.02 Comparative Fault
– Required Change of Former Contributory Negligence Instructions to Submit Plaintiff ’s Comparative Fault;
MAI 37.03 Comparative Fault – Damages; MAI 37.04 Comparative Fault – Converse Instructions – Plaintiff or
Defendant; MAI 37.07 Comparative Fault – Form of Verdict – Plaintiff vs. Defendant; MAI 37.08 Comparative

430  v  Product Liability Conference  v  April 2011


Fault – Damages – Personal Injury and Loss of Consortium, Loss of Services or Medical Expenses – Spouse or
Child Injured; MAI 37.09 Comparative Fault – Form of Verdict – Combined Injury and Derivative Claims; Mis-
souri Approved Jury Instructions regarding wrongful death are available for review. MAI 5.01 (1996) Damages
– Wrongful Death; MAI 6.01 (1996)Wrongful Death – Mitigating Circumstances

XXVII. Montana
Neil Covone
Hinshaw & Culbertson
ACCEPTANCE OF THE DOCTRINE: Yes. Under Montana law, a parent is not immune from actions
in tort brought against him/her by his/her children under the age of emancipation in cases involving paren-
tal negligence in operation of a motor vehicle. Transamerica Insurance Co. v. Royle, 202 Mont. 173, 656 P.2d
820 (1983) (“we see no reason why children should not enjoy the same right or protection and the same legal
redress for wrongs done them as others enjoy”).
APPLICATION OF THE DOCTRINE: Comparative Negligence. Comparative Negligence. MCA §27-1-
702. Joint and Several Liability. MCA §27-1-703. Recovery is barred if the Plaintiff ’s negligence exceeds 50 per-
cent. Comparative negligence scheme requires the fact finder to consider the negligence of the claimant, injured
person, defendants, and third-party defendants, even if a party proceeds under a claim of negligence per se or
if the fact finder determines that one or more persons was negligent per se. MCA §27-1-702; MCA §27-1-703;
Giambra v. Kelsey, 162 P.3d 134 (2007).
BURDEN OF PROOF: Comparative negligence is an affirmative defense. MCA §27-1-719. Also, MCA
§61-9-422, entitled “Evidence admissible without presumption of negligence”, states: “Evidence of compli-
ance or failure to comply with 61-9-420 [entitled “Child safety restraint systems—standards—exemptions”] is
admissible in any civil action for personal injury or property damage resulting from the use or operation of a
motor vehicle, but failure to comply with 61-9-420 does not alone constitute negligence”.
QUESTION OF LAW OR FACT: Question of fact. In products liability case which arose out of incident
wherein grain truck driver’s left arm was amputated below the elbow when his arm slipped into the intake end
of a grain auger manufactured by defendant, evidence presented a jury question whether the grain truck driver
had duty to hang on to the tailgate and was, therefore, contributorily negligent in not doing so. Stenberg v. Bea-
trice Foods Company, 576 P.2d 725 (1978).
LEGAL AUTHORITY: See above for case and statutory citations.
SPECIAL CONSIDERATIONS: MCA §27-1-512, entitled “Action by parent or guardian for injury to
child or ward”, states that “[e]ither parent may maintain an action for the injury to a minor child and a guard-
ian for injury to a ward when the injury is caused by the wrongful act or neglect of another.” In Montana, a
child under seven cannot be contributorily negligent. Johnson v. YMCA, 651 P.2d 1245 (1982). Additionally,
under Montana law statutory comparative negligence has no place in a strict liability action. MCA §27-1-702;
Zahrte v. Sturm, Ruger & Co., 1980, 498 F.Supp. 389, vacated 709 F.2d 26, cert denied 104 S.Ct. 395; see also
MCA §27-1-719 (“…contributory negligence is not a defense to the liability of a seller, based on strict liability
in tort, for personal injury or property damage caused by a defectively manufactured or defectively designed
product”).
JURY INSTRUCTIONS: See Montana Pattern Instructions, Second (MPI2d), Numbers 2.05 (Contribu-
tory Negligence), 2.06 (Contributory Negligence—Multiple Defendants) and 7.0 et seq. (Products Liability).
Note: Westlaw does not carry Montana Jury Instructions on-line.

The Parental Negligence Doctrine  v  Shirley  v  431


XXVIII. Nebraska
Thomas E. Rice
Kara T. Stubbs
Baker Sterchi Cowden & Rice, L.L.C.
ACCEPTANCE OF THE DOCTRINE: No.
Under Nebraska law, it is well settled that a parent’s negligence cannot be imputed to a child so as to
affect the child’s recovery from a third party whose negligent act has injured the child. Huff v. Ames, 19 N.W.
623, 625 (Neb. 1884); Worth v. Kolbceck, 728 N.W.2d 282, 290 (Neb. 2007); Wilson v. Thayer County Agric. Soc.,
213 N.W. 966, 969 (Neb. 1927); Tucker v. Draper, 86 N.W. 917, 921 (Neb. 1901); Eden v. Klaas, 89 N.W.2d 74, 78
(Neb. 1958). Negligence on the part of the parent must be considered with regard to any damages that parent
allegedly suffered personally on account of injuries to the child. Owen v. Moore, 88 N.W.2d 759, 767 (Neb. 1958);
Wilson, 213 N.W. at 969; Huff, 19 N.W. at 625; Klaas, 89 N.W.2d at 78; Crandall v. Ladd, 7 N.W.2d 642, 646 (Neb.
1943). The negligence of one parent does not ordinarily affect a non-negligent parent’s recovery for his or her
personal damages resulting from injuries to the child. Pratt v. Western Bridge & Constr. Co., 218 N.W. 397, 398
(Neb. 1928); see also Richardson v. State, Dept. of Rds., 263 N.W.2d 442, 447 (Neb. 1978) (involving a possibly
negligent driver and his passenger-child suing defendant over the wrongful death of a third passenger who was
both the driver’s wife and the child’s mother).
APPLICATION OF THE DOCTRINE: Comparative Negligence
Comparative negligence abrogates the common-law concept of contributory negligence, thus reliev-
ing both parties of an all-or-nothing situation, and substituting apportionment of the damages by fault. Neb.
Rev. St. §25-21, 185.09; Baldwin v. Omaha, 607 N.W.2d 841, 853 (Neb. 2000). Under the modified comparative
negligence scheme adopted in Nebraska, in any civil action accruing after February 8, 1992, plaintiff ’s contribu-
tory negligence diminishes proportionately the amount awarded as damages for injury attributable to plain-
tiff ’s contributory negligence, but does not bar recovery unless plaintiff ’s contributory negligence is equal to or
greater than that of defendant’s. Neb. Rev. St. §25-21, 185.09; Dutton v. Travis, 551 N.W.2d 759, 762 (Neb. 1996).
Thus, a plaintiff can recover even if his or her percentage share of negligence is 49 percent. Dutton, 551 N.W.2d
at 764.
BURDEN OF PROOF: Burden of Proof Rests Upon the Defendant
Comparative negligence is an affirmative defense which must be proved by the party asserting such
defense. Lynn v. Metropolitan Utilities Dist., 403 N.W.2d 335, 339 (Neb. 1987). Therefore, to entitle a defendant
to judgment under the comparative negligence statutory scheme, the defendant has the burden of proving that
any contributory negligence chargeable to the plaintiff is equal to or greater than the total negligence of all per-
sons against whom recovery is sought. Baldwin, 607 N.W.2d at 850. It is well settled that a plaintiff is contribu-
tory negligent if (1) she or he fails to protect herself or himself from injury, (2) her or his conduct concurs and
cooperates with the defendant’s actionable negligence, and (3) her or his conduct contributes to her or his inju-
ries as a proximate cause. Humphrey v. Burlington N. RR. Co., 559 N.W.2d 749, 753 (Neb. 1997) (citing Harrison
v. Seagroves, 549 N.W.2d 644 (Neb. 1996); Nickell v. Russell, 525 N.W.2d 203 (Neb. 1995)).
QUESTION OF LAW OR FACT: Generally a Question of Fact
“The question of whether conduct constitutes contributory negligence is generally a question of fact.”
Samuelson v. AMCO Ins. Co., 2004 WL 1773863 at * 3 (Neb. App. 2004) (quoting Horst v. Johnson, 465 N.W.2d
461 (Neb. 1991); Baldwin, 607 N.W.2d at 853; see also Schiffern v. Niobrara Valley Elec. Membership Corp., 547
N.W.2d 478, 482 (Neb. 1996). Since the purpose of comparative negligence is to allow triers of fact to compare

432  v  Product Liability Conference  v  April 2011


relative negligence and to apportion damages on that basis, the determination of apportionment is solely a
matter for the fact finder. Baldwin, 607 N.W.2d at 853.
WRONGFUL DEATH ACTIONS:
Nebraska’s comparative negligence laws apply to wrongful death actions. Neb. Rev. Stat. §25-21,
185.07. Section 185.07 states that “wrongful death claims brought pursuant to sections 30-809 and 30-810 …
shall be subject to sections 25-21,185.07 to 25-21,185.12” (Nebraska’s comparative negligence statutes). Section
185.09 provides that “[a]ny contributory negligence chargeable to the claimant shall diminish proportionately
the amount awarded as damages for an injury attributable to the claimant’s contributory negligence but shall
not bar recovery, except that if the contributory negligence of the claimant is equal to or greater than the total
negligence of all persons against whom recovery is sought, the claimant shall be totally barred from recovery.”
(emphasis added). In an action brought through or on behalf of an estate, the term claimant, as used in section
185.09, means the claimant’s decedent. Neb. Rev. Stat. §25-21, 185.08. Therefore, in a wrongful death action, if
the decedent’s percentage of fault is found to be fifty percent or greater, the beneficiaries will be barred from
recovery. Kent v. Crocker, 562 N.W.2d 833 (Neb. 1997). Thus, the negligence of a deceased minor may prevent
recovery by his or her parents in a wrongful death action. If the deceased, had he or she survived, been barred
by his or her own negligence from recovering damages from the other party, then, similarly, the party who does
bring the action will be barred from recovering for the wrongful death of the deceased. This is so whether the
deceased was a child or not. This is not because of imputed negligence, but because the cause of action is deriv-
ative. Neb. Rev. Stat. §30-809; Seyfer v. Otoe County, 92 N.W. 756, 759 (Neb. 1902) (interpreting the predecessor
to §30-809, which is alike in all relevant respects).
As noted above, for purposes of Nebraska’s comparative negligence scheme, a claimant in a wrongful
death is considered to be the claimant’s decedent. Therefore, Nebraska’s modified comparative negligence stat-
ute does not directly address whether the beneficiaries of a wrongful death claim may be barred from recovery
due to their own negligence. However cases decided prior to the adoption of the comparative negligence statute
hold that: “[t]he general rule in a wrongful death case is that although the action will not be barred by the con-
tributory negligence of one beneficiary, the amount of recovery will be reduced (if properly requested) to the
extent of the contributory negligent beneficiary’s share in the recovery.” Richardson v. State, Dept. of Rds., 263
N.W.2d 442, 446 (Neb. 1978). Where the sole beneficiary “was guilty of negligence more than slight as a matter
of law which proximately contributed to or caused the accident and death, it is the duty of the court to direct a
verdict for the defendant.” Weber v. Southwest Neb. Dairy Suppliers, Inc., 193 N.W.2d 274, 277 (Neb. 1971). There
is no case law discussing whether Nebraska’s comparative negligence scheme should be applied in determining
whether a beneficiary is barred from recovery due to their own negligence. Thus, it is unclear whether Nebraska
courts will continue to apply the holdings in the cases decided prior to the adoption of comparative fault.
SPECIAL CONSIDERATIONS: Issue of Pleading
Comparative negligence is an affirmative defense. Lynn v. Metropolitan Utilities Dist., 403 N.W.2d
335, 339 (Neb. 1987); see also, e.g., Fickle v. State, 735 N.W.2d 754, 768 (Neb. 2007); Lemke v. Metropolitan Utils.
Dist., 502 N.W.2d 80, 92 (Neb. 1993). “The burden of both pleading and proving affirmative defenses is upon
the defendants, and when they fail to do so, they cannot recover upon mere argument alone.” First Nat. Bank
v. Benedict Consol. Indus., 402 N.W.2d 259, 262 (Neb. 1987) (citing Ctr. Bank v. Mid Continent Meats, Inc., 234
N.W.2d 902, (Neb. 1975)); see, Neb. Ct. R. Pldg. §6-1108(c) (parties shall “set forth affirmatively” their affir-
mative defenses). Thus, comparative negligence must be affirmatively plead or it is considered waived. See
Fuhrman v. State, 655 N.W.2d 866, 873 (Neb. 2003).
JURY INSTRUCTION: Contributory Negligence and Imputation of Negligence

The Parental Negligence Doctrine  v  Shirley  v  433


In Wheeler v. Bagley, 575 N.W.2d 616, 620 (1998), the Nebraska Supreme court held that for all cases
in which contributory negligence is a defense, it is prejudicial error not to instruct the jury on the effects of its
allocation of negligence as required by Neb. Rev. Stat. §25-21,185.09. The Wheeler court proposed the following
instruction as guidance to trial courts:
If you find the plaintiff, (name), was damaged and that the plaintiff ’s damages were proximately
caused by both the negligence of the plaintiff, (name), and the defendant, (name), then you must
determine to what extent the negligent conduct of each contributed to the damages of the plain-
tiff, expressed as a percentage of 100 percent.
If you find that both the plaintiff and the defendant were negligent and that the negligence of the
plaintiff was equal to or greater than the negligence of the defendant, then the plaintiff will not be
allowed to recover.
If you find that both the plaintiff and the defendant were negligent and that the negligence of the
defendant was greater than the negligence of the plaintiff, then the plaintiff will be allowed to
recover.
If the plaintiff is allowed to recover, you will first determine the plaintiff ’s total damages without
regard to his or her percentage or degree of negligence.
If the plaintiff is allowed to recover, you will then reduce the total damages by the percentage of
the plaintiff ’s negligence.
Wheeler, 575 N.W.2d at 620-21.
Nebraska Pattern Jury Instructions regarding imputing the negligence of a parent to a child and
vice versa, are available for review. NJI2d Civ. 3.25 (2010-2011 ed.) Negligence of child not Imputed to Parent;
NJI2d Civ. 3.26A (2010-2011 ed.) Two Causes of Action—Two Parents and a Child—Negligence of Parent Not
Imputed to Child; NJI2d Civ. 3.26B Two Causes of Action—One Parent and a Child—Negligence of Parent Not
Imputed to Child.

XXIX. Nevada
Charles L. Clay, Jr.
Kristen Henrichs
Weinberg, Wheeler, Hudgins, Gunn & Dial, LLC
Acceptance of the doctrine: No.
Nevada has refused to adopt the doctrine of parental immunity. Under this doctrine, actions by par-
ents against their unemancipated children are barred as well as actions by unemancipated children against
their parents. See Rupert v. Stienne, 90 Nev. 397, 405 n.4, 528 P.2d 1013, 1018 n.4 (1974). Because the doctrine
has not been adopted in Nevada, the right of a child to sue a parent in tort is without restriction or limitation.
See id. at 405, 528 P.2d at 1018.
“[T]he negligence of a parent cannot be imputed to an innocent child, and the proper remedy is for
all tortfeasors to be held jointly and severally liable.” Hogle v. Hall By and Through Evans, 112 Nev. 599, 606, 916
P.2d 814, 819 (1996); see also Buck by Buck v. Greyhound Lines, Inc., 105 Nev. 756, 783 P.2d 437 (1989).
APPLICATION OF THE DOCTRINE: Comparative Negligence
The Nevada Comparative Negligence Statute applies to actions seeking damages for death or injury to
persons or for injury to property. NRS §41.141. Contributing fault on the part of the plaintiff, though it could

434  v  Product Liability Conference  v  April 2011


reduce recovery under the doctrine of comparative negligence, does not negate a finding that the defendant’s
negligence was a proximate cause of the plaintiff ’s injury. Id.; see also Taylor v. Silva, 96 Nev. 738, 615 P.2d 970
(1980). The judge in these cases instructs the jury that: (1) the plaintiff may not recover if his comparative neg-
ligence is greater than the negligence of the defendant or the combined negligence of multiple defendants; (2)
if the jury determines the plaintiff is entitled to recover, it shall return: (a) by general verdict the total amount
of damages the plaintiff would be entitled to recover without regard to his comparative negligence; and (b) a
special verdict indicating the percentage of negligence attributable to each party remaining in the action. NRS
§41.141.
In Nevada, each defendant is severally liable to the plaintiff only for that portion of the judgment
which represents the percentage of negligence attributable to him. Id. The comparative negligence statute does
not affect the joint and several liability, if any, of the defendants in an action based upon: (1) strict liability;
(2) intentional tort; (3) the emission, disposal or spillage of a toxic or hazardous substance; (4) the concerted
actions of the defendants; or (5) an injury to any person or property resulting from a product which is manu-
factured, distributed, sold or used in Nevada. Id. Also, the statute does not limit the liability of a sole defendant
or group of defendants whose negligence was the proximate cause of an indivisible injury to the plaintiff. Id.
Nevada has determined that the proceeds from a recovery for the wrongful death of a child are not
community property. White v. Yup, 85 Nev. 527, 538, 458 P.2d 617, 624 (1969). Thus, the contributory negligence
of one spouse, if any, is not to be imputed to the other so as to bar a recovery by the spouse who was not negli-
gent. Id.
BURDEN OF PROOF: Burden of Proof Rests Upon the Defendant
Contributory negligence is an affirmative defense and the burden of proof lies with the defendant.
Nev. R. Civ. P. 15(b); Worth v. Reed, 79 Nev. 351, 356, 384 P.2d 1017, 1019 (1963); Hotels El Rancho v. Pray, 64
Nev. 591, 621, 187 P.2d 568, 582 (1947).
QUESTION OF LAW OR FACT: Generally a Question of fact
In Nevada, issues of negligence and proximate cause are usually factual issues to be determined by the
trier of fact. Frances v. Plaza Pacific Equities, Inc., 109 Nev. 91, 94, 847 P.2d 722, 724 (1993); Nehls v. Leonard, 97
Nev. 325, 630 P.2d 258 (1981); Price v. Sinnott, 85 Nev. 600, 460 P.2d 837 (1969). Ordinarily, the existence of con-
tributory negligence is a question of fact; it becomes a question of law when the evidence will support no other
inference. Horvath v. Burt, 98 Nev. 186, 187, 643 P.2d 1229, 1230 (1982) (citing Wagon Wheel v. Mavrogan, 78
Nev. 126, 369 P.2d 688 (1962)).
SPECIAL CONSIDERATIONS: Issues of Pleading and Foreseeability
The Nevada Rules of Civil Procedure provide the defenses a party must plead affirmatively. Nev. R. Civ.
P. 8(a). Specifically, a party must affirmatively plead “accord and satisfaction ... contributory negligence ... and
any other matter constituting an avoidance or affirmative defense.” Id.; see also Clark County School District v.
Richardson, 123 Nev. 382, 392-393, 168 P.3d. 87, 94 (2007); Panix Promotions, Ltd. v. Don King Productions, Inc.,
No. 46688, 2008 WL 6124731, *3 (Nev. Nov. 5, 2008). Thus, all affirmative defenses should be pled in the defen-
dant’s answer to the complaint.
However, “when issues not raised by the pleadings are tried by [the] express or implied consent of
the parties, they shall be treated in all respects as if they had been raised in the pleadings.” Nev. R. Civ. P. 15(b).
Thus, even if contributory negligence is not asserted, the court may allow the defendant to amend. Further,
even if the plaintiff objects to the amendment, “if evidence is objected to at the trial on the ground that it is
not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so
freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails

The Parental Negligence Doctrine  v  Shirley  v  435


to satisfy the court that the admission of such evidence would prejudice the party in maintaining the party’s
action or defense upon the merits.” Id.
JURY INSTRUCTION: Contributory Negligence
Several Nevada Pattern Jury Instructions are available for review regarding contributory negligence.
Nev. J.I. 3.06: Respective Burdens of Plaintiff and Defendant; Negligence and Contributory Negligence; Nev. J.I.
4.07: Contributory Negligence Definition; Effect; Nev. J.I. 4.08 Contributory Negligence; Wrongful Death.

XXX. New Hampshire


Dorsey Miller
Hinshaw & Culbertson
ACCEPTANCE OF THE DOCTRINE: Yes, With Limitations
New Hampshire law provides that a parent owes a duty of reasonable care for the safety of his or her
child. See Bullard v. McCarthy, 195 A. 355, 360 (N.H. 1937) (holding that it was father’s duty to exercise ordinary
care for safety of his four year old son, injured when struck by automobile while crossing highway, where he had
gone with father’s permission). Accordingly, if a parent claims any loss as a result of his or her child’s injury, the
parent cannot recover to the extent the loss resulted from the parent’s own negligence. See id. (holding that the
ordinary rules of the law of negligence must be applied in trial of issue as to contributory negligence of injured
child’s father in father’s action for loss suffered by him); see also Cleveland v. Reasby, 33 A.2d 554, 556 (N.H.
1943) (holding that parents may be at fault for not exercising sufficient control over children to protect children
against danger, and if at fault, may not recover damages resulting to parents from parents’ negligence in failing
to protect children by warning children against dangers known to the parents and probably not appreciated by
the children).
The doctrine does not apply, however, in cases involving minors who are allegedly injured as a result
of a defective car seat, or in wrongful death actions involving a minor decedent. Additionally, because a parent’s
negligence cannot be imputed to the child, the doctrine cannot be applied to reduce the recovery of an injured
minor, even in the context of a claim for ordinary negligence. See, e.g., Doyle v. Lacroix, 85 N.H. 247 (N.H. 1931).
APPLICATION OF THE DOCTRINE: Comparative Negligence
The doctrine is applied through the principles of intervening cause and comparative negligence,
although it should be noted that the term “contributory negligence” is used interchangeably with “compara-
tive negligence” in New Hampshire. Pursuant to New Hampshire Statute §507:7-d, “[c]ontributory fault shall
not bar recovery in an action by any plaintiff or plaintiff ’s legal representative, to recover damages in tort for
death, personal injury or property damage, if such fault was not greater than the fault of the defendant, or the
defendants in the aggregate if recovery is allowed against more than one defendant, but the damages awarded
shall be diminished in proportion to the amount of fault attributed to the plaintiff by general verdict.” N.H. Rev.
Stat. §507:7-d (2010). Otherwise stated, should a jury determine that a plaintiff is more than 50 percent at fault,
recovery is barred. Alternatively, if a plaintiff is 50 percent or less at fault, recovery is reduced accordingly.
The comparative negligence statute applies to all tort actions, not merely actions founded in negli-
gence. See Bohan v. Ritzo, 141 N.H. 210, 216 (1996). However, comparative fault is applied differently in a strict
liability case than in a negligence case. See id. In the former, evidence of negligence by one or both parents of an
injured minor may be used to challenge causation only. See id. In the latter, fault may be disputed as well. See id.
Evidence of a parent’s comparative negligence may be used to reduce the parent’s recovery, but not the child’s,
in either type of case, however. See Doyle, supra.

436  v  Product Liability Conference  v  April 2011


BURDEN OF PROOF: Defendant Bears Burden of Proof
“The burden of proof as to the existence or amount of fault attributable to a party shall rest upon the
party making such allegation.” N.H. Rev. Stat. §507:7-d (2010).
QUESTION OF LAW OR FACT: Question of Fact
Whether a parent was contributorily negligent is a question of fact for the jury. Cf. Bullard, supra, at
360 (finding that contributory negligence of father in failing to make any effort to insure child’s safe return
from place to which he had gone with father’s permission was for jury).
LEGAL AUTHORITY: Common law
Bullard v. McCarthy, 195 A. 355, 360 (N.H. 1937)
Cleveland v. Reasby, 33 A.2d 554, 556 (N.H. 1943)
Forsberg v. Volkswagen of America, Inc., 769 F.Supp. 33, 36 (D.N.H.1990)
In re Estate of Infant Fontaine, 128 N.H. 695, 700 (N.H. 1986)
Doyle v. Lacroix, 85 N.H. 247 (N.H. 1931)
Cyr v. J.I. Case Co., 652 A.2d 685, 695-696 (N.H. 1994)
Thibault v. Sears, Roebuck Co., 118 N.H. 802, 811-813 (N.H. 1978)
Heath v. Sears, Roebuck & Co., 123 N.H. 512, 528 (N.H. 1983)
Stephan v. Sears, Roebuck & Co., 110 N.H. 248, 249 (N.H. 1970)
Reid v. Spadone Machine Co., 119 N.H. 457, 464-465 (N.H. 1979)
Weldy v. Town of Kingston, 128 N.H. 325, 332 (N.H. 1986)
Bohan v. Ritzo, 141 N.H. 210 (N.H. 1996)
Bellacome v. Bailey, 121 N.H. 23 (N.H. 1981)
Jackson v. Smart, 89 N.H. 174 (N.H. 1937)
N.H. Rev. Stat. §507:7-d (2010)
SPECIAL CONSIDERATIONS: Pleading Issues
A defendant who seeks to prove contributory negligence should first allege it by formal pleading or
pretrial statement under New Hampshire Superior Court Rule 62. However, a defendant alleging contribu-
tory negligence need not necessarily introduce evidence to that effect; sometimes plaintiff ’s evidence will be
sufficient to establish negligence on his or her part, in which case, defendant’s proper course is to move for an
amendment of the pleadings. See RSA 507:7-a, 514:9; Superior Court Rule 62; Restatement (Second) of Torts
§477, comment a (1965); Mayhew v. New England Teamsters, 115 N.H. 581, 584 (N.H. 1975); LePage v. Com-
pany, 97 N.H. 46, 50 (N.H. 1951).
JURY INSTRUCTION: Comparative Fault; Plaintiff ’s Misconduct; Intervening Cause
1-8 New Hampshire Civil Jury Instruction §8.1; §23.6, §23.8

XXXI. New Jersey


Steve Falanga
Mitchell Taraschi
Connell Foley LLP
ACCEPTANCE OF THE DOCTRINE: With some qualification, no.

The Parental Negligence Doctrine  v  Shirley  v  437


Under New Jersey law, a parent’s negligence cannot be imputed to a child so as to preclude an action
by the child against a third party whose negligent act has injured the child. Jannuzzelli v. Wilkens, 158 N.J.Super.
36, 47 (App.Div. 1977) (string cite omitted). With limited exception, there is also no special immunity afforded
to parents for claims brought against them for their own negligence. France v. A.P.A. Transport Corp., 56 N.J. 500
(1970); Mancinelli v. Crosby, 247 N.J.Super. 456 (App.Div. 1991); Thorpe v. Wiggan, 405 N.J.Super. 68 (App.Div.
2009). Despite the general principle affording no special treatment to parents, the vast majority of case law in
New Jersey on the subject of parental negligence deals with the limited exception where immunity is afforded
to parents. This “doctrine of parental immunity,” shields parents from suits involving allegations of negligent
supervision. Foldi v. Jeffries, 93 N.J. 533, 539-542 (1983).
The majority of case law in New Jersey dealing with parental negligence implicates the analysis of the
parental immunity doctrine. See e.g., Foldi, supra; Mancinelli, supra; Buono, infra. Therefore, a summary of this
doctrine is more appropriate than an analysis of New Jersey’s comparative negligence law.
APPLICATION OF THE PARENTAL IMMUNITY DOCTRINE
In Foldi, a leading case on parental immunity, the New Jersey Supreme Court recognized parents were
entitled to immunity while exercising parental authority or the provision of customary child care. Id. The doc-
trine of parental immunity protects parents from judicial intervention in normal child rearing decisions. Id. at
545. However, the court did not extend the doctrine of parental immunity to instances in which parents’ neglect
in supervising their children is willful or wanton. Id. at 548; Buono v. Scalia, 358 N.J.Super. 210 (App.Div. 2003).
In determining whether parental immunity will be afforded, the Court must first determine what
acts or omissions by the parent a fact finder could reasonably find are the proximate cause of the child’s injury.
Mancinelli v. Crosby, 247 N.J.Super. 456, 460 (App.Div. 1991) (citing Murray by Olsen v. Shimalla, 231 N.J.Super.
103 (App.Div. 1989)). Next, the Court is to determine whether that conduct involves the exercise of parental
authority or the provision of customary child care. Id. If the conduct does fall into these categories, the next
step is to determine whether the conduct constitutes a lack of parental supervision. Id. The final step is to
determine whether a fact finder could reasonably find that the conduct was willful or wanton thereby removing
it from the immunity. Id.
In Foldi, the New Jersey Supreme Court explained that the “willful or wanton” standard is an interme-
diate one “between simple negligence and intentional infliction of harm.” Foldi, 93 N.J. at 549. Specifically in the
parental negligence context, willful or wanton has been defined as the failure of a parent to adequately super-
vise a child with a propensity to engage in conduct that could cause harm to himself or herself, or to adequately
supervise a child using or having access to a dangerous instrumentality. Convery v. Maczka, 163 N.J.Super. 411,
415-16 (Law Div. 1978). In Buono, the New Jersey Appellate Division further clarified that behavior of a parent
is willful or wanton when he or she is “conscious […] that the injury will likely or probably result from [the]
conduct, and with reckless indifference to the consequences, [the parent] consciously and intentionally does
some wrongful act or omits to discharge some duty which produces the injurious result.” 179 N.J. at 137-138.
BURDEN OF PROOF: Shifts from parent to party disputing immunity
In order to assert the parental immunity defense, a parent must first prove that the conduct at issue
involved the exercise of parental authority or the provision of customary child care. Gross v. Sears, Roebuck &
Company, 158 N.J.Super. 442 (1978). Examples of such conduct include “the provision of food, clothing, hous-
ing, medical and dental services, and other care.’” Id. (quoting Small v. Rockfeld, 66 N.J. 231, (1974)). Once a
parent establishes that the conduct involved the exercise of parental authority, a party that is disputing the
application of immunity, whether by direct claim for negligent supervision or by a defense of comparative neg-

438  v  Product Liability Conference  v  April 2011


ligence, can only prevail if he or she can prove that the parent acted willfully or wantonly. Buono, supra; Murray
by Olsen, supra.; Januzzelli, supra.
QUESTION OF LAW OR FACT: Threshold question of law and subsequent question of fact
The issue of whether a parent’s conduct involves the exercise of parental authority or provision of cus-
tomary care is a threshold question to be decided by the trial judge, and not the jury. Gross, 158 N.J.Super. at
448. When there is a factual dispute as to whether the parent acted willfully or wantonly, the question is left to
be resolved the jury. Ward v. Barnes, 545 F.Supp.2d 400, 411 (D.N.J. 2008).
OTHER CONSIDERATIONS
If a parent is found to have acted willfully or wantonly, and thus found to have negligently super-
vised an injured minor, a finder of fact is obligated to allocate the parent’s fault with the fault of any other par-
ties whose negligence was a proximate cause of the claimed injuries, as it would have to in any other action in
which there are multiple parties responsible for a plaintiff ’s injuries. N.J.S.A. 2A:15-1, et. seq. This principle is
set forth in New Jersey’s Comparative Negligence Act (the “Act”), which further provides that the fact finder’s
allocation must be in the form of a percentage. N.J.S.A. 2A:15-5.2(b). The court then molds the judgment con-
sonant with those percentages. N.J.S.A. 2A:15-5.2(c). A party recovering damages in a case subject to the Act
may recover “the full amount of the damages from any party determined by the trier of fact to be 60 percent or
more responsible for the total damages.” N.J.S.A. 2A:15-5.3(a). However, a plaintiff may recover “only that per-
centage of the damages directly attributable to that party’s negligence or fault from any party determined by
the trier of fact to be less than 60 percent responsible for the total damages.” N.J.S.A. 2A:15-5.3(c).

XXXII. New Mexico


Ashley Sybesma
Hinshaw & Culbertson
ACCEPTANCE OF THE DOCTRINE: Yes, partially.
Although there is no specific case or statutory law in the state of New Mexico with regard to parental
negligence within the realm of products liability, there are other situations where an action has been brought by
or on behalf of a child and the comparative negligence of the parent was considered.
APPLICATION OF THE DOCTRINE: Comparative Fault/Apportionment of Fault
The doctrine is applied through the principle of comparative negligence. The state of New Mexico
adheres to the doctrine of pure comparative negligence. Adoption by New Mexico courts of pure compara-
tive negligence resulted in the abolition of the doctrine of joint and several liability between defendants. Scott
v. Rizzo, 96 N.M. 682, 684-85, 634 P.2d 1234, 1236-37 (1981) (adopting pure comparative negligence); Bartlett
v. N.M. Welding Supply, Inc., 98 N.M. 152, 154-59, 646 P.2d 579, 581-86 (N.M. Ct. App. 1982) (abolishing joint
and several liability between concurrent tortfeasors), superseded by statute, 1987 N.M. Laws ch. 141, §1, NMSA
1978, §41-3A-1 (1987), as stated in Reichert v. Atler, 117 N.M. 628, 875 P.2d 384 (N.M. Ct. App. 1992). More-
over, “Bartlett effectively eliminates any basis for contribution among concurrent tortfeasors.” Wilson v. Galt,
100 N.M. 227, 231, 668 P.2d 1104, 1108 (N.M. Ct. App. 1983). “If each concurrent tortfeasor is liable only for his
respective share of the negligence, no need exists for him to … seek contribution from other tortfeasors or to
protect himself against having to contribute [to others].” Id.
BURDEN OF PROOF: Burden of Proof Rests Upon the Defendant
Comparative negligence is an affirmative defense. See, e.g., Jaramillo v. Kellogg, 126 N.M. 84, 86-87 966
P.2d 792, 794-95 (1988) (noting use of comparative negligence as affirmative defense, including negligence of

The Parental Negligence Doctrine  v  Shirley  v  439


non-parties). But see Tipton v. Texaco, Inc., 103 N.M. 689, 692, 712 P.2d 1351, 1354 (1985) (noting that compara-
tive negligence is not necessarily an affirmative defense that needed to be pled, but that it allows for impleader
of third parties). Defendant has the burden of persuasion. See Tafoya v. Seay Bros. Corp., 119 N.M. 350, 352, 890
P.2d 803, 805 (1995) (holding that the “party alleging an affirmative defense has the burden of persuasion”).
QUESTION OF LAW OR FACT: Question of Fact
In a comparative negligence action tried to the court without a jury, apportionment of the percentage
of fault or negligence is a question of fact, not of law. Sheraden v. Black, 107 N.M. 76, 752 P.2d 791 (N.M. Ct. App.
1988), citing St. Hilaire Moye v. Henderson, 496 F.2d 973, 982 (8th Cir.), cert. denied, 419 U.S. 884, 95 S.Ct. 151, 42
L.Ed.2d 125 (1974); State v. Kaatz, 572 P.2d 775 (Alaska 1977); see also J. Palmer, S. Flanagan, Comparative Neg-
ligence Manual, §10.40 at 6 (Rev. ed. 1986).
The proximate cause of an injury must be an act which actually aids in bringing about an injury; it need
not be the last or nearest act, nor need it be the sole cause of the injury. LeBlanc v. Northern Colfax County Hosp.,
100 N.M. 494, 672 P.2d 667 (Ct.App.1983). See also SCRA 1986, UJI Civ. 13-305. Thus, when the negligent acts of
more than one person combine to proximately cause an injury, it is a question of fact to determine the amount or
percent-age of comparative negligence of each person. Scott v. Rizzo, 96 N.M. 682, 634 P.2d 1234 (1981).
LEGAL AUTHORITY: Common law
SPECIAL CONSIDERATIONS: Wrongful Death Actions
Where a parent seeks recovery in his own right and for his own benefit, when a child has been killed,
the law permits the defense of contributory negligence. Foster v. United States, 183 F.Supp. 524 (D.C.N.M. 1959)
citing Baker v. Dallas Hotel Co., 5 Cir., 73 F.2d 825; Porter v. United States, D.C., 128 F.Supp. 590. In cases of con-
tributory negligence, it bars the action to the extent of the contributorily negligent parent’s right to share in the
proceeds. Baca v. Baca, 71 N.M. 468, 379 P.2d 765 (1963). In Wilson v. Wylie, 86 N.M. 9, 518 P.2d 1213 (1973)
(where defendant alleged that the decedent’s parents were contributorily negligent in failing to instruct the
decedent about crossing the intersection where the accident occurred, or in failing to restrict him from riding
his bicycle in the intersection, and in failing to know of his whereabouts on the afternoon of the accident) the
defense of contributory negligence was recognized as parental negligence.
JURY INSTRUCTION: Comparative Negligence
New Mexico Uniform Jury Instructions regarding comparative negligence are available for review.
NMRA, Civ. UJI 13-2218. Comparative Negligence; No Comparison Among Defendants or Non-Parties; General
Verdict. NMRA, Civ. UJI 13-2219. Comparative Negligence; Comparison Among Defendants or Non-Parties;
General Verdict. NMRA, Civ. UJI 13-2220. Comparative Negligence; Special Verdict. NMRA, Civ. UJI 13-2221.
Comparative Negligence; Verdict Form.

XXXIII. New York


Cheryl Possenti
Goldberg Segalla LLP
ACCEPTANCE OF THE DOCTRINE: Yes, the general rule is that a parent is not liable for negligent
supervision with some specific exceptions.
The seminal case in New York regarding imputing parental negligence to a child’s claim is the Court
of Appeals decision in Holodook v. Spencer, 36 N.Y.2d 35, 364 N.Y.S.2d 859, 324 N.E.2d 338 (1974), in which the
court held that a parent’s negligent failure to supervise a child will generally not constitute a tort actionable by

440  v  Product Liability Conference  v  April 2011


the child. Three cases were consolidated in the Court of Appeals Holodook decision, as each involved the issue
of whether parents may be liable for negligent supervision of their child.
One of those cases, Fahey v. Ryan, involved a three year old whose hand was run over by an eight
year old neighbor operating a power lawnmower. id 324 N.E.2d at 340. In another case, Gravey v. Gravey, the
four year old plaintiff fell off an 11 foot high playground slide, and sued his father for negligent supervision. id
324 N.E.2d at 340. The third case, Holodook v. Spencer, involved a four year old who darted out from between
parked cars and was struck by the defendant who brought a third-party action for indemnity and apportion-
ment against the child’s mother for negligently failing to instruct, control and maintain her child. id 324 N.E.2d
at 341. The defendant in Holodook v. Spencer also brought a counterclaim for apportionment and contribu-
tion against the plaintiff father, alleging negligent supervision. id at 341. The Court of Appeals, New York State’s
highest court, prohibited the infant plaintiff from asserting a cause of action against the parent based on neg-
ligent supervision and accordingly disallowed any counterclaim or third-party action premised on the parent’s
negligent supervision of the child.
Exceptions to Holodook:
Exception Where There Is a Breach of Duty to the World at Large:
The Holodook Rule barring recovery for negligent supervision applies when an injury to an infant
results from a breach of duty owed solely to the infant. Holodook v. Spencer, supra 36 N.Y.2d at 50. However,
New York courts will recognize a viable cause of action in favor of an infant against the parent when a parent
“breaches a duty to the world at large.” Hurst v. Titus, 77 A.D.2d 157, 158, 432 N.Y.S.2d 938, 939 (4th Dept. 1980).
Importantly, this “world at large” duty theory may be employed by defendants to impose liability upon parents
for contribution or indemnification. See Burgess v. Cappola, 251 A.D.2d 1001, 674 N.Y.S.2d 181, 182 (4th Dept.
1998), “a third party cannot impose liability upon parents for contribution or indemnification unless the culpa-
ble act committed by the parents violated a duty owed to the world at large” (quoting McNamara v. Banney, 249
A.D.2d 950, 672 N.Y.S.2d 569, 570 (4th Dept. 1998).
The prevailing analysis is a duty analysis. The “factor that distinguishes [instances in which actionable
negligence has been found] from an action predicated solely upon negligent parental supervision is the scope
of the duty, a duty ordinarily owed apart from the family relationship - and not the fact the dangerous condi-
tion was created by an affirmative act of the parent.” (Grivas v. Grivas, 113 A.D.2d 264, 268, 496 N.Y.S.2d 757 (2d
Dept. 1985)).
In Hurst supra, a parent’s act of negligently causing a fire was held sufficient to sustain a cause of
action against her by her child even though her failure to rescue her daughter from the fire fell within the pro-
tection of the negligent supervision rule. There are numerous cases in which courts have found a parent’s con-
duct to fall outside the protection of the Holodook rule barring negligent parental supervision claims. See,
e.g., Santoro v. Donnelly, 2004 U.S. Dist. Lexis 22849 (S.D.N.Y. 2004). In Donnelly, a one year old child who was
injured when she touched a glass surface of a glass fireplace in her father’s home brought an action against her
father for negligence and a products liability action against the fireplace manufacturer. The District Court held
that the father was liable under a theory that he had a duty to exercise reasonable care to the public at large in
the operation and the maintenance of the fireplace.
Exception When a Parent Negligently Permits His or Her Child to Use a Dangerous Instrument
The New York Court of Appeals carved out a second exception to the Holodook general rule of parental
non-liability in Nolechek v. Gesuale, 46 N.Y.2d 332, 413 N.Y.S.2d 340, 385 N.E.2d 1268 (N.Y. 1978). The Court of
Appeals in Nolechek provided for an exception when parents negligently permit their children to use a danger-
ous instrument. This exception is premised on the parent’s breach of an established duty to third persons who

The Parental Negligence Doctrine  v  Shirley  v  441


may be harmed. Id at 1273. Essentially the court permitted defendant to maintain a counterclaim for contribu-
tion against a parent who allowed his son who was blind in one eye ride a motorcycle on which he was injured.
Id at 1274. The Court of Appeals reasoned that the father created a danger to all of society when he entrusted
his son with a dangerous instrument for which the father was partially liable. Id. A parent owes a duty to third
parties to protect them from their child’s imprudent use of a dangerous instrument. Accordingly, the court rein-
stated the defendant’s counterclaim. Id at 1271.
The Nolechek decision requires that the instrument must be dangerous in order to impute negligence
to the parents under this exception. Additionally, the Nolechek exception to the Holodook rule of parental non-
liability focuses on whether the parents were aware of and capable of controlling the use of the dangerous
instrument. Id at 1272. Thus, if neither parent is aware that the child possessed a dangerous instrument nor
aware of how he obtained it, the parents are not responsible. See Gordon v. Harris, 86 A.D.2d 948, 448 N.Y.S.2d
598, 600 (3d Dept. 1982). Yet if the infant’s use of the dangerous instrument is open and notorious, the parents
will be deemed to have actual knowledge necessary to impose liability, even if the parents claim ignorance.
Kuchlik v. Feuer, 239 A.D. 338, 267 N.Y.S. 256, 259 (1st Dept. 1993). Parental knowledge of the infant’s posses-
sion of a dangerous instrument can be proven by sufficient circumstantial evidence. Id.
In holding whether an instrument is dangerous, courts have considered factors including “the nature
and complexity of the alleged dangerous instrument as well as the age, intelligence, and experience of the
child, and his proficiency with the instrument.” Lamica v. Precore, 273 A.D.2d 647, 709 N.Y.S.2d 694, 695 (3d
Dept. 2000). Under New York case law, specific objects have been deemed to be dangerous instruments includ-
ing, motorcycles , id, see also Len v. City of Cohoes, 144 A.D.2d 187, 534 N.Y.S.2d 505, 506 (3d Dept. 1988). A
snowmobile when operated by a fifteen year old was determined to be a dangerous instrument in Ware v. Sand
Lake Kiwanis Club, Inc. , 100 Misc.2d 668, 420 N.Y.S.2d 60, ( N.Y.Sup.Ct.1979). The Nolechek court noted that
lawnmowers, power tools and automobiles are instruments that are “in some contingencies, ‘dangerous instru-
ments.’” Nolechek 385 N.E.2d at 1272.
By contrast, a court has held that where an infant was riding a bike for two years before the accident,
and the parents were unaware the child might not control it, a bicycle was not a dangerous instrument. Santa-
lucia v. County of Broome, 205 A.D.2d 969, 613 N.Y.S.2d 774, 776 (3d Dept. 1994). A snowmobile when operated
by a licensed infant was found not to be a dangerous instrument. Alfano v. Marlboro Airport, 85 A.D.2d 674, 445
N.Y.S.2d 517 (2d Dept. 1981). A skateboard was also found not to be a dangerous instrument. Young v. Dalidow-
icz, 92 A.D.2d 242, 460 N.Y.S.2d 82 (2d Dept. 1983).
Liability May Also Be Imputed to Parents Because of Their Failure to Reasonably Restrain a Child with
Known Vicious Propensities
Liability may also be imputed to a parent because of their negligence in failing to reasonably restrain
a child from vicious conduct that imperils others, when the parents have knowledge of the child’s propensities.
Steinberg v. Cauchois, 249 A.D. 518, 293 N.Y.S. 147 (2d Dept. 1937).
The Court of Appeals acknowledged this doctrine but declined to find sufficient facts to apply it in
LaTorre v. Genesee Management, Inc., 90 N.Y.2d 576, 665 N.Y.S.2d 1, 687 N.E.2d 1284 (1997), where defend-
ants attempted to implead plaintiff ’s mother based upon negligent supervision of her young developmentally
disabled son. The court found that the record and allegations of parental liability based upon vicious propen-
sities of the child were lacking the required specificity. id. The third-party complaint alleged that plaintiff “suf-
fered from violent propensities and tendencies rendering him incapable of interacting with other people.” id.
The court ruled that this allegation was insufficient to satisfy the requisite pertinent knowledge of the kind of
dangerous propensities attributed to plaintiff ’s mother that would create parental liability for a child’s actions.

442  v  Product Liability Conference  v  April 2011


The court ruled that the “extraordinariness or patent forseeability of the situation as factors to be considered in
determining whether a claim may be allowed to stand . . .” id.
The elements of this cause of action are knowledge by the parent that the child has a vicious propen-
sity, Adolph E. v. Linda M., 170 A.D.2d 1011, 566 N.Y.S.2d 165 (4th Dept. 1991), and the parent’s ability to control
the child, Dawes v. Ballard, 133 A.D.2d 662, 520 N.Y.S.2d 11 (2d Dept. 1987).
APPLICATION OF THE DOCTRINE: See decisional law cited above.
BURDEN OF PROOF: Burden of Proof Rests Upon the Defendant.
To establish a prima facie case under the Nolechek exception to the Holodook general rule of parental
non-liability, the defendant seeking contribution must offer sufficient evidence that the parents should have
known that the child was likely to use the instrument in a dangerous manner. Larsen v. Heitmann, 133 A.D.2d
533, 519 N.Y.S.2d 904 (4th Dept. 1987). Likewise, it must be established that the parent had the ability to con-
trol the use of the instrument. Gordon v. Harris, 86 A.D.2d 948, 448 N.Y.S.2d 598 (3d Dept. 1982).
To establish vicarious parental liability for failing to restrain a child with vicious propensities, as stated
above, defendant must prove that the parent had knowledge of the child’s vicious propensities, Adolph E., supra,
and the ability to control the child, Dawes, supra.
QUESTION OF LAW OR FACT:
Whether a Duty Is Owed to the World at Large: Generally a Question of Law
Whether a parent breached a duty owed to the world at large requires a duty analysis and thus is a
question of law. The “factor that distinguishes instances [in which actionable negligence has been found] from
action[s] predicated solely upon negligent parental supervision is the scope of the duty, a duty ordinarily owed
apart from the family relationship - and not the fact the dangerous condition was created by an affirmative act
of the parent.” Grivas v. Grivas, 113 A.D.2d 264, 268, 496 N.Y.S.2d 757 (2d Dept. 1985).
Whether an Instrument Entrusted to a Child Is a Dangeous Instrument: May Be a Question of Law or
Fact:
Whether a particular object qualifies as a dangerous instrument under the Nolechek exception
depends on the nature of the instrument and the facts pertaining to its use, including the particular attri-
butes of the minor using or operating the item. Rios v. Smith, 95 N.Y.2d 647, 722 N.Y.S.2d 220, 744 N.E.2d 1156
(2001). The issue of whether an all-terrain vehicle was a dangerous instrument was a question of fact properly
submitted for jury determination where the record revealed that the vehicle could attain speed of 20-30 miles
per hour and a passenger would ride on the vehicle holding onto the driver. Id.
While this question is often a fact-based determination, items that are commonly used by children of
suitable age in a manner consistent with their intended use, may not, as a matter of law, be classified as a dan-
gerous instrument Barocas v. F.W. Woolworth Co., 207 A.D.2d 145, 622 N.Y.S.2d 5 (1st Dept. 1995). (Simple plas-
tic doll used by child who was two years, seven and one half months old.)
Guns are always considered dangerous instruments. Wheeler v. Bello, 78 Misc.2d 540, 357 N.Y.S.2d
818, 821-822 (N.Y.Sup.Ct. 1974). Gordon v. Harris, 86 A.D.2d 948, 448 N.Y.S.2d 598 (3rd Dept. 1982).
LEGAL AUTHORITY: Statutory and Leading Case Authority
Holodook v. Spencer, 36 N.Y.2d 35, 364 N.Y.S.2d 859, 324 N.E.2d 338 (1974) – (General rule of non-lia-
bility of parent for negligent supervision of a child.)
LaTorre v. Genessee Management, 90 N.Y.2d 576, 665 N.Y.S.2d 1, 687 N.E.2d 1284 (1974) – (In situ-
ations where the parent “breaches a duty to the world at large and not solely to the child,” liability may be

The Parental Negligence Doctrine  v  Shirley  v  443


imposed against the parent. Also discusses parental liability for failure to reasonably restrain a child with
vicious propensities.)
Nolechek v. Gesuale, 46 N.Y.2d 332, 413 N.Y.S.2d 340, 385 N.E.2d 1268 (N.Y. 1978). (Exception to Holo-
dook general rule of non-parental liability for breach of parental duty to third parties to protect them from their
infant’s imprudent use of a dangerous instrument when the parents are aware of and capable of controlling the
instrument’s use.
N.Y. CLS Gen. Oblig. §3-111 (2010)
§3-111 NEGLIGENCE OF PARENT OR OTHER CUSTODIAN NOT IMPUTED TO INFANT
“In an action brought by an infant to recover damages for personal injury, the contributory negligence
of the infant’s parent or other custodian shall not be imputed to the child.”
(This statute does not preclude recovery of contribution under the exceptions to the Holodook rule
discussed above.)
N.Y. CLS Gen. Oblig. §3-112
ARTICLE 3. CAPACITY; EFFECT OF STATUS OR OF CERTAIN RELATIONSHIPS OR OCCUPATIONS
UPON THE CREATION, DEFINITION OR ENFORCEMENT OF OBLIGATIONS. TITLE 1. INFANCY
(The New York legislature has imposed liability upon the parents of minors who destroy property
under General Obligations Law §3-112, otherwise known as the Parental Responsibility Act. This statute, in
effect, imposes liability of up to $5,000 upon a parent for the willful, malicious, or unlawful damage or public or
private property by a child between the ages of ten to eighteen years.)
SPECIAL CONSIDERATIONS:
Pursuant to the “family automobile doctrine” a parent is made responsible for the liability incurred
through the authorized use of an automobile owned and used for family purpose by a member of the parent’s
household pursuant to parent’s orders or in the parent’s business. Maurillo v. Park Slope U-Haul, 194 A.D.2d
142, 606 N.Y.S.2d 243 (2d Dept. 1993).
Parents may also be liable where there is a master-servant relationship and the child acts within his
accorded authority, and a parent who participates in the child’s tortious act, either by consenting to it, or by rat-
ifying it later and accepting the benefits of the act, may be liable. Steinberg v. Cauchois, 249 A.D. 518, 239 N.Y.S.
147 (2d Dept. 1937).
JURY INSTRUCTION:
New York Pattern Jury Instructions:
1. PJI 2:260 Vicarious Responsibility – Family Relationship – Liabilities of Parent for Tort of Child
– Negligence in Permitting Use of Instrumentality
2. PJI 2:261 Vicarious Responsibility – Family Relationship – Liability of Parent for Tort of Child
– Failure to Restrain

XXXIV. North Carolina


Sandra G. Ezell
Eileen R. Geller
Bowman and Brooke LLP
ACCEPTANCE OF THE DOCTRINE: No. Negligence of parents is not imputable to the child.

444  v  Product Liability Conference  v  April 2011


Under North Carolina law, contributory negligence by the plaintiff is a complete bar to recovery in a
negligence or breach of warranty action. N.C. Gen. Stat. §99B-4; see also Nicholson v. Am. Safety Util. Corp., 346
N.C. 767, 488 S.E.2d 240 (1997); Smith v. Fiber Controls Corp., 300 N.C. 669, 672, 268 S.E.2d 504, 506 (1980).
However, North Carolina, “the negligence of a parent, guardian, or other custodian of a child non sui juris in
permitting the child to be exposed to danger cannot be imputed to the child so as to preclude an action by the
child against a third party whose negligence has resulted in injury to it.” Martin v. Amusements of America, Inc.,
27 S.E.2d 639, 644, 38 N.C.App. 130, 137 (N.C. App. 1978) (citing Davis v. Seabord Airline Railroad Co., 136 N.C.
115, 48 S.E. 591 (1904)). The issue really boils down to proximate cause, as the defendant must still have some
fault in his own right regardless of any fault of the child’s parents, as explained by the North Carolina Supreme
Court in the seminal case on this issue:
If, where one of two innocent persons must suffer, the law puts the loss, as it justly does, upon the
one who has by some negligence enabled the wrong to be done, surely when there are two guilty
persons in the transaction the law should not leave the only innocent one to suffer, as it practi-
cally does, by referring him to his parent or guardian for an injury of which a stranger has been
the principal cause. No injustice can be done to the defendant by this limitation of the defense of
contributory negligence since the rule itself is not established primarily for his benefit, and he can
never be made liable if he has not been himself in fault.
Bottoms v. Seaboard & Roanoke R.R.Co., 114 N.C. 506, 513 (1893) (internal citations omitted) (ulti-
mately concluding that negligence of a parent cannot be imputed to a child “so as to defeat his action for dam-
ages sustained by reason of the negligence of another”).

XXXV. North Dakota


Cassandra F. Fortin
Larson King
ACCEPTANCE OF THE DOCTRINE: Yes, partially.
Where a parent is found contributorily negligent in the death of his or her child, the parent is sub-
ject to a reduction of damages, if any, found in proportion to the parent’s level of fault. Perleberg v. General Tire
& Rubber Co., 221 N.W.2d 729 (N.D. 1974) (holding that evidence of a mother’s failure to supervise her child
paired with her ability to see an approaching vehicle resulted in the proper creation of a question for the jury as
to the mother’s contributory negligence).
In North Dakota, pursuant to N.D. Cent. Code §9-10-06, an unemancipated minor can maintain a tort
action against his or her parents. Nuelle v. Wells, 154 N.W.2d 364, 365-66 (N.D. 1967). In Nuelle, an uneman-
cipated minor automobile passenger, through his guardian ad litem, sued the driver of the other automobile
for injuries sustained in the accident when the automobile in which he was riding and his mother was driv-
ing collided with a truck. Id. The other driver instituted a third-party action against the minor’s mother and
father claiming that the sole and proximate cause of the accident was gross negligence of the mother and father.
Id. The Supreme Court of North Dakota reversed the District Court’s entry of summary judgment, which dis-
missed the third-party complaint. The Court determined none of the circumstances under which the legisla-
ture intended to make parents immune from liability for their tortious acts was present. Id. at 366. As such, the
Court held that nothing precluded the unemancipated minor from maintaining an action in tort against his
parents arising out of automobile accident. Id. at 367.
APPLICATION OF THE DOCTRINE: Contributory negligence

The Parental Negligence Doctrine  v  Shirley  v  445


The doctrine is applied through the principle of comparative negligence. The state of North Dakota
adheres to the doctrine of modified comparative negligence. E.g., N.D. Cent. Code §32-03.2-02 (2010); Hurt
v. Freeland, 589 N.W.2d 551, 556 (N.D. 1999). North Dakota’s Modified Comparative Fault Statute makes the
liability multiple tortfeasors separate and several, instead of joint, unless they acted in concert in causing the
injury. N.D. Cent. Code §32-03.2-02; Schneider v. Schaaf, 603 N.W.2d 869, 876 (N.D. 1999); Target Stores v. Auto-
mated Maintenance, 492 N.W.2d 899, 902 (N.D. 1992); and Haff v. Hettich, 593 N.W.2d 383 (N.D. 1999).
BURDEN OF PROOF: Burden of Proof Rests Upon the Defendant
Contributory negligence is an affirmative defense and the burden of proof lies with the defendant.
Hansen v. First American Bank & Trust of Minot, 452 N.W.2d 770 (N.D. 1990); Rule 8(c), N.D. R. Civ. P. (2010);
Glatt v. Feist, 156 N.W.2d 819 (N.D. 1968).
Under North Dakota law, the trier of fact must apportion any fault among any party or non-party that
was a proximate cause of the claimed damages. N.D. Cent. Code §32-03.2-01; North Dakota Jury Instruction
C-90.50. Under North Dakota’s Modified Comparative Fault Statute, a party or non-party is liable only for its
apportioned share of fault, if any. N.D. Cent. Code §32-03.2-02 (1996) (adopting “several” rather than “joint and
several” liability).
N.D. Cent. CODE §32-03.2-02 is also relevant to parental negligence with respect to the application of
respondeat superior and vicarious liability. The release of a servant for his wrongful conduct also releases the
master from vicarious liability. Horejsi v. Anderson, 353 N.W.2d 316 (N.D. 1984) (holding that vicarious liability
of plaintiff infant’s parents was discharged by release of baby-sitter and her parents after settlement of infant’s
claim against baby-sitter); See also N.D. Cent. Code §32.38-02 and 32-38-02. “Pursuant to Section 32-38-04,
release of the servant reduces the claim against other non-released tort-feasors to the extent of the relative
degree of fault (percentage of negligence) attributable to the released wrongdoer servant.” Id. at 318. Further-
more, the “percentage of negligence” attributable to the conduct of the servant constitutes the entire “single
share” of liability attributable jointly to the master and servant. Id. However, in Nelson v. Johnson, 599 N.W.2d
246 (N.D. 1999), release of a driver’s father from liability did not release the driver from liability. The driver
in Nelson was a minor. Id. Moreover, the amount received by motorist from the driver’s father in settlement of
wrongful death claim against the father would not be deducted from damages awarded to motorist by jury. Id.
QUESTION OF LAW OR FACT: Generally a Question of Fact
“[The Supreme Court of North Dakota] has routinely held that questions of contributory negligence
are questions of fact for the jury to determine unless evidence is such that reasonable minds can draw but one
conclusion.” Perleberg, 221 N.W.2d at 731 (citing Willert v. Nielsen, 146 N.W.2d 26 (N.D. 1966); Lindenberg v.
Folson, 138 N.W.2d 573 (N.D. 1965); Vogel v. Bertsch, 130 N.W.2d 220 (N.D. 1964); and Sahli v. Fuehrer, 127
N.W.2d 900 (N.D. 1964)). See also Leonard v. North Dakota Co-Op. Wool Marketing Ass’n, 6 N.W.2d 576, 582
(N.D. 1942) (stating that “questions of negligence, contributory negligence and proximate cause are always
questions of fact for the jury in an action for personal injuries unless the evidence is such that reasonable
minds can draw but one conclusion thereform”).
LEGAL AUTHORITY: Statutory and common law
SPECIAL CONSIDERATIONS:
The family purpose doctrine was first adopted in Ulman v. Linderman, 176 N.W. 25 (N.D. 1919). The
doctrine is founded on the theory that the driver of a family car, in pursuit of recreation or pleasure is engaged
in the owner’s business and is viewed as either the agent or servant of the owner. See Schobinger v. Ivey, 467
N.W.2d 728 (N.D. 1991). The respondeat superior theoretical basis for the doctrine is a fiction created in fur-
therance of the public policy of giving an injured party a cause of action against a financially responsible

446  v  Product Liability Conference  v  April 2011


defendant. Herman v. Magnuson, 277 N.W.2d 445, 455 (N.D. 1979). Under the family purpose doctrine, the
owner of the vehicle is not liable for his own negligence, but is vicariously liable for the tortuous acts of the
driver. See Nelson v. Gillette, 571 N.W.2d 332 (N.D. 1997).
JURY INSTRUCTIONS: Comparative Fault 2002 –Tort Liability
The State Bar Association of North Dakota has published the following pattern instructions: North
Dakota Jury Instruction C-90.50 Special Verdict – Comparative Negligence (2000); North Dakota Jury Instruc-
tion C-2.8 Definition of “Fault” 2000 – Tort Liability; North Dakota Jury Instruction C-2.82 Definition of “Com-
parative Fault” 2002 – Tort Liability, See Sollin v. Wangler, 627 N.W.2d 159 (N.D. 2001); and North Dakota Jury
Instruction C-3.16 Family Car Doctrine 2003 – Tort Liability, See McPhee v. Tufty, 623 N.W.2d 390 (N.D. 2001)
and Schobinger v. Ivey, 467 N.W.2d 728 (N.D. 1991).
Neither North Dakota’s Rules of Civil Procedure or its statute on comparative fault provide any par-
ticular order of decision for special verdicts. See N.D. R. Civ. P 49(a) (2010). N.D. Cent. Code §32-03.2-02 only
requires the court to “direct the jury to find separate special verdicts determining the amount of damages and
the percentage of fault attributable to each person, whether or not a party, who contributed to the jury.”

XXXVI. Ohio
Beth Schneider Naylor
Frost Brown Todd LLC
ACCEPTANCE OF THE DOCTRINE: Yes, but not specifically decided since adoption of comparative
fault.
Under existing Ohio precedent, a parent’s contributory negligence will prevent the parent from recov-
ering for a child’s injury. Cleveland, C.C. & St. L. Ry. Co. v. Grambo, 134 N.E. 648, 650 (Ohio 1921). The neg-
ligence of a parent, however, is not imputed to the child and will not bar other non-negligent beneficiaries
from recovering. Id.; 70 Ohio Jur. 3d Negligence §100 (2010). The adoption of a comparative fault system in
Ohio suggests that parental negligence would not act as a complete bar to recovery, however, no Ohio case
has addressed the issue. 30 Ohio Jur. 3d Death §85 (2010). Contributory negligence remains the appropriate
standard, at least nominally, in actions by parents as reflected in Ohio’s pattern jury instructions. 1 O.J.I. CV
§407.15 (2010).
In light of the uncertainty surrounding the parental negligence doctrine in Ohio, the following sec-
tions examine the doctrine as if contributory negligence applies through precedent.
APPLICATION OF THE DOCTRINE: Contributory Negligence
The doctrine operates on the basis of contributory negligence. Parents are required to exercise a
degree of care and control over a child that an ordinarily careful and reasonable parent would exercise over a
child of the same age, education and experience under the same or similar circumstances. Id. A parent’s negli-
gence that “proximately contributes to cause the injuries to a child” will bar that parent’s ability to recover. Id.
Just as one parent’s negligence will not be imputed to a child, the non-negligent parent or beneficiary may also
recover against the tortfeasor. Id.
The doctrine does not apply in actions brought by parents as natural guardians on behalf of the child. Id.
BURDEN OF PROOF: Burden of Proof Rests Upon the Defendant
Contributory negligence is an affirmative defense for which the defendant bears the burden of proof.
Dixon v. Miami Univ, 2005 WL 3316963 at *10 (Ohio App. 10th 2005), citing Valencic v. The Akron & Barberton
Belt Rd. Co. 13 N.E.2d 240 (Ohio 1938). Ohio courts have defined contributory negligence as “any want of ordi-

The Parental Negligence Doctrine  v  Shirley  v  447


nary care on the part of the person injured, which combined and concurred with the defendant’s negligence
and contributed to the injury as a proximate cause thereof, and as an element without which the injury would
not have occurred.” Brinkmoeller v. Wilson, 325 N.E. 2d 233, 235 (1975). Contributory negligence typically
involves some fault or departure from the standard of conduct of a reasonable person. Self v. American Legion,
279 N.E.2d 889,892 (Ohio App. 4th 1972).
QUESTION OF LAW OR FACT: Generally a Question of Fact
Questions of contributory negligence generally preclude summary judgment as they are questions
for the trier of fact. Collier v. Northland Swim Club, 518 N.E.2d 1226, 1230 (Ohio App. 3rd 2007). But where the
record, construed most favorably for the plaintiff, shows no reasonable inference other than that of plaintiff ’s
own negligence, contributory negligence ceases to be a question of fact and a verdict may directed for the
defendant. Wiedle v. Remmel, 328 N.E.2d 391, 394 (Ohio 1975).
LEGAL AUTHORITY: Leading Case Authority
Ohio’s parental negligence doctrine derives from case law. In Cleveland, C.C. & St. L. Ry. Co. v. Grambo,
the Ohio Supreme Court held that a parent’s contributory negligence in a wrongful death suit affected the par-
ent’s right of recovery but not that of the injured child or non-negligent next of kin. 134 N.E. 648, 650 (Ohio
1921). Even where the negligence of a defendant and parent both proximately cause injury to a child, the latter
may not recover. Shadwick v. Hills, 69 N.E. 2d 197, 199 (Ohio 1946). The doctrine set forth in Grambo was most
recently affirmed, albeit in the husband-wife context, by the Ohio Supreme Court in Shinaver v. Szymanski, 471
N.E.2d 477, 480 (Ohio 1984) (holding that contributory negligence of the beneficiary husband may be raised as
a defense).
SPECIAL CONSIDERATIONS: Adoption of Comparative Fault; Strict Liability; Assumption of the Risk
Adoption of Comparative Fault: If Ohio’s comparative fault scheme is applied to parental negligence, a
parent’s contributory negligence will not bar recovery unless the parent’s negligence is less than the combined
tortious conduct of all other persons from whom the parent seeks recovery. Ohio Rev. Code Ann. §2315.33
(2010).
Strict Liability: Practitioners should note that contributory negligence is not a defense to strict liability
under Ohio law, Mulloy v. Longaberger, Inc., 547 N.E. 2d 411, 414 (Ohio 1989), but may be available as an affir-
mative defense against common law claims.
Assumption of the Risk: The Ohio Supreme Court has held that a parent cannot assume a risk for a
child. Id. Assumption of the risk only applies where the plaintiff is the person who suffered the injury, and not
to the third person suing on behalf of another. Id.
JURY INSTRUCTION: Action by Parent
See 1 Ohio Jury Instructions CV §407.15 (2010) (Action by Parent), cited supra; 1 Ohio Jury Instruc-
tions CV §407.11 (2010) (Negligence of Parent Not Imputed); 1 Ohio Jury Instructions CV §405.01 (2010)
(Proximate Cause); 1 Ohio Jury Instructions CV §405.03 (2010) (Remote Cause or Condition); 1 Ohio Jury
Instructions CV §403.09 (2010) (Assumption of the Risk); 1 Ohio Jury Instructions CV §401.01 (2010) (Negli-
gence and Ordinary Care).

XXXVII. Oklahoma
Chalmer “Chuck” Detling
Wagner, Johnston & Rosenthal, P.C.
ACCEPTANCE OF THE DOCTRINE: Generally No.

448  v  Product Liability Conference  v  April 2011


As a general rule, a child is not answerable for the negligence of his or her parent. 76 Okl. St. §1.1.
APPLICATION OF THE DOCTRINE: Causation and Comparative Fault
Oklahoma has adopted a modified comparative negligence stance. A plaintiff may not recover if his or
her negligence is of a greater degree than the combined negligence of any person causing such damage. 23 Okl.
St. §13. However, since, as discussed above, a parent’s negligence is not attributable to the child, the parental neg-
ligence cannot be used to diminish the child’s recovery against a third-party. See generally Burgess v. Friedman &
Son. 637 P.2d 908, 910 (Okla. Ct. App. 1981) (“where a plaintiff has not causally contributed to his harm there is
no negligence with which to compare that of a defendant regardless of the defendant’s degree of neglect”).
Moreover, comparative negligence does not reduce recovery in a strict product liability case. Kirkland v.
General Motors Corp.. 521 P.2d 1353 (Okla. 1974). Additionally, the fact that a plaintiff may have used a product
“‘for a proper purpose but in a careless manner’ is merely contributory evidence, which is not a defense to a prod-
ucts liability suit.” Black v. M&W Gear Co.. 269 F.3d 1220, 1234 (10th Cir. 2001). However, the plaintiffs conduct
may be relevant to the issue of causation; for example, if a jury believes that a plaintiffs injuries were caused by his
driving speed—and not by the design of his automobile—this would obviously be detrimental to the plaintiffs
product liability claims. See Moody v. Ford Motor Co.. 2006 U.S. Dist. LEXIS 82999 (N.D. Okla., Nov. 14,2006).
BURDEN OF PROOF: Burden of Proof Rests Upon the Defendant for Contributory Negligence
Contributory negligence is an affirmative defense for which the defendant has the burden of proof.
Johnson v. Wade. 642 P.2d 255, 258 (Okla. 1982) (overruled on other grounds in Hough v. Leonard. 867 P.2d
438,444 (Okla. 1993)); Hair v. Wilson, 391 P.2d 789 (Okla. 1964).
QUESTION OF LAW OR FACT: Questions of Fact
Oklahoma’s Constitution mandates that the “defense of contributory negligence ... shall, in all cases
whatsoever, be a question of fact, and shall, at all times, be left to the jury.” Okl. Const. Art. XXIII, §6. So long as
some “minimal evidence” exists which suggests the plaintiff was negligent, the trial court should instruct the
jury on the issue, but if there is no direct evidence that the plaintiff was negligent, the trial court is not man-
dated to give such an instruction. Snvder v. Dominguez. 202 P.2d 135, 140 (Okla. 2008).
LEGAL AUTHORITY: See above for case and statutory citations.
In addition, as it relates to the use of seat belts, Oklahoma has a specific statute relating to this type
of evidence. 47 Okl. St. §12-420. Until November 1, 2009, this statute provided that “the use or nonuse of seat
belts shall not be submitted into evidence in any civil suit in Oklahoma.” Even with this statutory blanket pro-
hibition, courts did not exclude evidence of the use or nonuse of seat belts in all situations. In Bishop v. Takata
Corp., 12 P.3d 459 (Okla. 2000), the Oklahoma Supreme Court expressly permitted this type of evidence in a
product liability lawsuit involving claims of defective seat belt restraints. See also Clark v. Mazda Motor Corp..
68 P.3d 207 (Okla. 2003). Evidence regarding seat belt use was also permitted in a case where there were allega-
tions that the driver (the former husband of the surviving spouse plaintiff) committed suicide by driving his
vehicle off a rural road. Sims v. Great American Life Ins. Co. 469 F.3d 870 (10th Cir. 2006). Reviewing these lines
of cases, it appears that courts found that so long as the seat belt evidence was not being used to show that the
plaintiff was negligent or at fault, it could be admitted into evidence.
However, it is important to note that Oklahoma’s seat belt evidence statute was amended, effective
November 1, 2009, to provide that “the use or nonuse of seat belts shall be submitted into evidence in any civil
suit in Oklahoma unless the plaintiff in such suit is a child under sixteen (16) years of age.” See Laws 2009, ch.
228 (HB 1603), §27. Thus, it would appear as though evidence of seat belt use/nonuse would be admissible for
all purposes—including contributory negligence—if the plaintiff is 16 or older.
SPECIAL CONSIDERATIONS: Contributory Negligence Must Be Affirmatively Pleaded in Answer
The Parental Negligence Doctrine  v  Shirley  v  449
The Oklahoma Pleading Code requires that a pleading in response to a preceding pleading “shall set
forth affirmatively ... [contributory negligence ... and [a]ny other matter constituting an avoidance or affirma-
tive defense.” 12 Okl. St. §2008(C). As a result, a defendant’s answer should include contributory negligence and
all other affirmative defenses.
If an affirmative defense is not raised in an answer, the defense may be waived. See Prough v. Edineer.
Inc.. 862 P.2d 71 (1993). There are, however, two possible ways to add an affirmative defense through an
amended answer. First, a party may freely amend its pleading as a matter of right at any time before a respon-
sive pleading has been filed (or, if the pleading is one to which there is no right to file a responsive pleading
and the case has not been placed on a trial calendar). 12 Okl. St. §2015(A). Second, a party may also seek leave
of court to amend its answer, in which case leave shall be “freely given when justice so requires.” Id. The inter-
ests of justice do allow for the timely addition of affirmative defenses where the facts relating to the affirmative
defense are not known at the time of the defendant’s answer. Prough. supra.
JURY INSTRUCTION: Comparative Negligence; Imputed Negligence Comparative Fault; Concurrent
Causes
Oklahoma Uniform Jury Instructions regarding comparative negligence are available for review. Okla-
homa Uniform Jury Instructions (OUJI) (Civil) No. 9.18, et seq.
The negligence of a parent is not imputable to the parent’s children, and the negligence of a driver is
not imputable to the negligence of passengers. OUJI (Civil) No. 9.15,9.16.
When an injury is the result of the combined negligence of two or more persons, each person’s con-
duct is a direct cause of the injury, regardless of the extent of each’s contribution. OUJI (Civil) No. 9.7.

XXXVIII. Oregon
Michael C. Osborne
ArcherNorris
ACCEPTANCE OF THE DOCTRINE: No.
The negligence of a parent or guardian, in exposing a child to danger, will not be imputed to the child
so as to preclude the child’s right of action against a third person. Webb v. Hoover-Guernsey Dairy Co., 138 Ore.
24, 26, 4 P.2d 631, 631 (1931).
APPLICATION OF THE DOCTRINE:
Oregon’s comparative fault statute, ORS 31.600, applies to both strict liability and negligence claims.
Wilson v. B.F. Goodrich, 292 Ore. 626, 629, 642 P.2d 644 (1982).
Under Oregon law, comparative fault requires the jury to consider the conduct of the respective parties
and apportion fault for the damages accordingly. Dahl v. Bayerische Motoren Werke (BMW), 304 Ore. 558, 568-
569, 748 P.2d 77 (1987).
A plaintiff ’s incidental carelessness or negligent failure to discover or guard against a product defect
is not a defense to a products liability claim. Hernandez v. Barbo Machinery Co., 327 Ore. 99, 109, 957 P.2d 147,
153 (1998); Findlay v. Copeland Lumber Co., 265 Ore. 300, 303, 305, 509 P.2d 28 (1973); Sandford v. Chev. Div.
Gen. Motors, 292 Ore. 590, 610, 642 P.2d 624 (1982).
However, other forms of negligent conduct by a plaintiff, such as unreasonable misuse of the product,
or unreasonable use despite knowledge of a dangerous defect in the product and awareness of the risk posed by
that defect, are defenses to a strict products liability action. Hernandez, 327 Ore. at 109.

450  v  Product Liability Conference  v  April 2011


JURY INSTRUCTION:
The trial court must determine whether the pleadings and the evidence are such that a jury reasonably
could conclude that the plaintiff has established that the plaintiff ’s injury resulted, in whole or in part, from
an “unobservant, inattentive, ignorant, or awkward failure” to discover or guard against alleged defects in the
product. Hernandez, 327 Ore. at 111. If so, the giving of an instruction as set forth in Sandford, 292 Ore.590, is
required. Id.

XXXIX. Pennsylvania
Jane North
Deasey, Mahoney, Valentini & North
ACCEPTANCE OF THE DOCTRINE: A parent’s own negligence bars his or her recovery, but such neg-
ligence is not imputed to the child
Under Pennsylvania common law, a parent’s recovery for an injury sustained by his or her child will be
barred, or reduced, where the parent’s own negligence contributed to the injury. Connelly v. Kaufmann & Baer
Co., 37 A.2d 125 (Pa. 1944); Pinter v. James Barker, Inc., 116 A. 498 (Pa. 1922). However, the parent’s negligence
will not be imputed to the child for purposes of diminishing or barring the child’s own action. Greene v. Basti,
391 F.2d 892 (3d Cir. 1968).
APPLICATION OF THE DOCTRINE: Comparative Negligence Principles
Pennsylvania courts have held that it is the duty of a parent to exercise reasonable care to protect and
to keep the child from dangers that, because of the child’s years and discretion, the child is unfitted to cope, and
this duty is greater the more helpless the child is. Reardon v. Wilbur, 272 A.2d 888 (Pa. 1971); Goldberg v. Phila.
Rapid Transit Co., 149 A. 104 (Pa. 1930); Horneman v. Hills Dept. Store, 8 Pa. D. & C.4th 361 (1990).
Parents generally are presumed to have given a child reasonable and proper care, and the mere pres-
ence of a young child in a place of danger, such as a street or highway, is itself insufficient to establish parental
negligence as a matter of law. Goldberg v. Phila. Rapid Transit Co., 149 A. 104 (Pa. 1930); Dattola v. Burt Bros.,
Inc., 135 A. 736 (Pa. 1927); Miller v. Leljedal, 455 A.2d 256 (Pa. Commw. 1983). Reasonable care required by the
parent is defined as that care which persons of reasonable prudence, of the same class, with the same means,
ordinarily would exercise and deem adequate to protect their children from danger. Del Rossi v. Cooney, 57 A.
514 (Pa. 1904). The test is what an ordinarily reasonable and prudent parent would have done in similar cir-
cumstances. Miller v. Leljedal, 455 A.2d 256 (Pa. Commw. 1983).
Under principles of comparative negligence in Pennsylvania, a parent’s negligence in his or her
cause of action is no bar to recovery where such negligence was not greater than the causal negligence of the
defendant or the combined defendants, but instead reduces the parent’s recovery in proportion to the amount
of negligence attributable to the plaintiff. 42 Pa. C.S. §7102.
BURDEN OF PROOF: Burden of Proof Rests Upon the Defendant
A parent is not required to disprove comparative negligence; rather, the burden of proving compara-
tive negligence rests with the defendant. Goldberg v. Phila. Rapid Transit Co., 149 A. 104 (Pa. 1930).
QUESTION OF LAW OR FACT: Generally a Question of Fact
Generally, in a parent’s action to recover for injuries to a child, it is a question for the jury whether
the minor, or the parents, were comparatively negligent. Connelly v. Kaufmann & Baer Co., 37 A.2d 125 (1944).
Accordingly, where a parent permits a minor child to place himself or herself in danger, the determination of
whether this was negligence is usually one of fact for the jury to determine, and the same is true with the deter-

The Parental Negligence Doctrine  v  Shirley  v  451


mination of the minor’s own negligence. Dattola v. Burt Bros., Inc., 135 A. 736 (Pa. 1927); Miller v. Leljedal, 455
A.2d 256 (Pa. Commw. 1983).
LEGAL AUTHORITY: See above for cited cases.
SPECIAL CONSIDERATIONS: Issues of Pleading and Damages
Under the Pennsylvania Rules of Civil Procedure, the affirmative defense of comparative negligence
need not be pleaded in response to a complaint. This defense is not waived even if not pleaded as a defense. Pa.
R.C.P. 1030(b).
An important distinction is the parent’s negligence in causing an injury to a minor child versus the
parent’s failure to properly care for an injured child. The failure of a parent to properly care for a child that has
been injured by the negligence of another is not comparative negligence that will operate to defeat a parent’s
recovery; rather, such a failure is evidence that can be used to the jury in an assessment of the proper mitiga-
tion of damages. Bradford v. Downs, 17 A. 884 (1889).
JURY INSTRUCTION: Plaintiff ’s Negligence; Comparative Negligence and Apportionment Among
Joint Tortfeasors; Contributory Negligence; Contributory Negligence Verdict Sheet
Pennsylvania Suggested Standard Civil Jury Instructions 3.20 through 3.22A describe the doctrine of
comparative/contributory negligence and that the burden of proof for the same rests with a defendant. Those
instructions describe that if the jury decides that the plaintiff ’s causal negligence was greater than the causal
negligence of the defendant, or the combined causal negligence of those defendants found negligent, then the
plaintiff cannot recover any damages. The instructions likewise describe for the jury how to make an appor-
tionment of negligence among joint tortfeasors.

XL. Rhode Island


Kimberly A. Simpson
Vetter & White, Inc.
ACCEPTANCE OF THE DOCTRINE: No, although there is some support for the position that a par-
ent’s negligence can be used to reduce recovery where the parent asserts her own claim as part of the child’s
suit.
“If under all the circumstances, the plaintiff, considering her tender years, was not negligent . . . then
she is entitled to recover for any injury caused by the negligent act of the defendant’s servant notwithstanding
any negligence of the plaintiff ’s mother.” Gallo v. Simpson Spring Co., 181 A. 915, 918 (R.I. 1935) (claim asserted
by child only); see also Dixon v. Royal Cab, Inc., 396 A.2d 930, 936 (R.I. 1979). Where a parent asserts her own
claim as part of a child’s personal injury suit, however, a trial justice may reduce compensatory damages based
on a finding of the parent’s comparative negligence. Dixon at 933 (trial justice’s reduction of compensatory
damages based jury’s finding of parent’s negligence not challenged on appeal where parent asserted her own
claim as part of child’s suit; the court did not indicate whose compensatory damages were reduced). While no
Rhode Island court has expounded on this aspect of the Dixon case, presumably the negligence of a parent
could be used to reduce recovery where the parent is also asserting her own claim.
APPLICATION OF THE DOCTRINE: Comparative Negligence
To the limited extent that Rhode Island might apply the doctrine, it would be applied through compar-
ative negligence principles. Rhode Island has adopted a so-called pure comparative negligence statute. See R.I.
Gen. Laws §9-20-4. Plaintiff may recover even if plaintiff ’s comparative fault is more than 50 percent.
BURDEN OF PROOF: Burden of Proof Rests Upon The Defendant

452  v  Product Liability Conference  v  April 2011


Defendant bears the burden of proving plaintiff ’s negligence. See Botelho v. Caster’s, Inc., 970 A.2d 541,
547 N. 4 (R.I. 2009); see also Rhode Island Model Civil Jury Instructions, §301.4.
QUESTION OF LAW OR FACT: Generally a Question of Fact
Comparative negligence is generally a question of fact for the jury, unless the facts suggest only one
reasonable inference, then the trial justice may treat the question as a matter of law. Hueston v. Narragansett
Tennis Club, 502 A.2d 827, 831 (R.I. 1986); Kennedy v. Providence Hockey Club, 376 A.2d 329, 333 (R.I. 1977).
LEGAL AUTHORITY: Statutory and common law
SPECIAL CONSIDERATIONS: Issues of Pleading
Comparative negligence need not be pled as an affirmative defense. Bradley v. Gilchrist, 2003 R.I. Super.
LEXIS 102, *10-11 (R.I. Super. Ct. 2003) (comparative negligence defense deemed not waived although not affir-
matively pled). The Bradley court relied on the fact that neither Rule 8(c) of the Rhode Island Rules of Civil Pro-
cedure nor Rhode Island’s comparative negligence statute requires that the defense be affirmatively pled.
As a matter of practice in Rhode Island, however, defendants routinely plead comparative negligence
as an affirmative defense and it ought to be pleaded out of an abundance of caution.
JURY INSTRUCTION: Comparative Negligence and Apportionment
Rhode Island Model Civil Jury Instructions, §§301.4 (burden of proof), 1003 (comparative negligence
generally), and 10004.3 (apportionment).

XLI. South Carolina


Shelby Kay Leonardi
Nelson Mullins LLP
ACCEPTANCE OF THE DOCTRINE: No, except (1) where parental negligence is “sole proximate
cause” of child’s injury; and (2) in actions asserted by parents on behalf and for the benefit of the parent, a
comparative fault analysis is applied to reduce the negligent parent’s recovery.
South Carolina has abolished the doctrine of parental immunity, Elam v. Elam, 275 268 S.E.2d 109
(S.C. 1980), but has not ruled on whether and how the negligence of a parent may be imputed to the child in
cases brought on behalf of the minor. South Carolina likewise has not expressly ruled on the viability of a claim
for negligent supervision by a minor child against his or her parent. The law is clear, however, that (1) evidence
of parental negligence is admissible to show the “sole proximate cause” of the child’s injury; and (2) such negli-
gence may be asserted as a defense against claims brought by a parent on his or her own behalf.
South Carolina has long recognized that evidence of a parent’s negligence is admissible in an action for
the injuries of a child as to the proximate cause of the child’s injuries. Funderburke v. Johnson, 171 S.E.2d 597, 598
(S.C. 1969) (“A defendant is entitled to submit evidence tending to prove that the conduct of some third party
(parents here) was the sole cause of the injury, as it might tend to defeat plaintiff’s claim of actionable negligence
and as it might exonerate defendants of all wrongdoing as a proximate cause of the alleged injury.”).
It is well-established South Carolina law that a plaintiff ’s comparative negligence may be asserted as
a defense against claims brought by that plaintiff. See Estate of Haley ex rel. Haley v. Brown, 634 S.E.2d 62, 75
(S.C. Ct. App. 2006); see also Nelson v. Concrete Supply Co., 399 S.E.2d 783, 784 (S.C. 1991). This rule is equally
applicable when the negligence of a parent is asserted as a defense against claims brought on behalf of and for
the benefit of the parent, as compared to claims a parent may bring on behalf of the minor child. See Butler v.
Temples, 88 S.E.2d 586, 589 (S.C. 1955); Watson v. Southern Ry., 44 S.E. 375, 377 (S.C. 1903); see also Crowley v.
Spivey, 329 S.E.2d 774, 784 n. 1 (S.C. 1985) (contributory negligence of beneficiary in wrongful death action
The Parental Negligence Doctrine  v  Shirley  v  453
bars recovery so far as that beneficiary is concerned). It is immaterial that the parent’s claims are derivative of
an injury to the child. As the South Carolina Supreme Court has expressly held:
[I]f a parent fails to exercise reasonable or ordinary care in the control, management, direction,
or protection of a child non sui juris, and such want of care, whether by acts of omission or com-
mission, directly contributes to the injury of the child by others, such contributory negligence on
the part of the parent will be a defense to an action by the parent against the persons causing the
injury, where the action is not for the benefit of the child, but for the parent.
Horne v. Atl. Coast Line R. Co., 181 S.E. 642, 645 (S.C. 1935).
APPLICATION OF THE DOCTRINE: Causation and Comparative Fault
The doctrine’s application is two-fold. First, in a personal injury action brought by or on behalf of a
child, evidence of a parent’s negligence may be admitted to prove that the parent’s actions were the sole cause
of the child’s injuries. Funderburke, 171 S.E.2d at 598. Alternatively, in an action by the parent for the benefit of
the parent, such as wrongful death or loss of consortium claims, the negligence of the parent will be considered
under a comparative fault analysis. South Carolina courts apply a “not greater than” version of comparative neg-
ligence. Nelson v. Concrete Supply Co., 399 S.E.2d 783, 784 (S.C. 1991) (adopting comparative negligence doc-
trine). Thus, a plaintiff in a negligence action may recover damages if his or her negligence is not greater than
that of the defendant. Id. If there is more than one defendant, the plaintiff ’s negligence shall be compared to the
combined negligence of all defendants. S.C. Code Ann. §15-38-15. The amount of the plaintiff ’s recovery shall
be reduced in proportion to the amount of the plaintiff ’s negligence. Id.
BURDEN OF PROOF: Burden of Proof Rests Upon the Defendant
“Comparative negligence is an affirmative defense. The defendant asserting an affirmative defense
bears the burden of its proof.” Youmans ex rel. Elmore v. South Carolina Dept. of Transp., 670 S.E.2d 1, 10 (S.C. Ct.
App. 2008) (internal citations omitted).
QUESTION OF LAW OR FACT: Questions of Fact
Whether one or both parents’ negligence constitutes the “sole proximate cause” of the child’s injuries
is a question of fact. Player v. Thompson, 193 S.E.2d 531, 533 (S.C. 1972). The comparative negligence of the
parents is likewise a question of fact. Brown v. Smalls, 481 S.E.2d 444, 450-51 (S.C. Ct. App. 1997) (“As a general
rule, under a ‘less than or equal to’ comparative negligence rule, determination of respective degrees of negli-
gence attributable to the plaintiff and the defendant presents a question of fact for the jury, at least where con-
flicting inferences may be drawn. Accordingly, apportionment of negligence, which determines both whether a
plaintiff is barred from recovery or can recover some of his damages and the proportion of damages to which
he is entitled, is usually a function of the jury.”) (citations omitted); see also Lydia v. Horton, 540 S.E.2d 102,
112-13 (S.C. Ct. App. 2000), cert. granted (“Comparison of a plaintiff ’s negligence with that of the defendant is
a question of fact for the jury to decide.”) (quoting Creech v. South Carolina Wildlife & Marine Resources Dep’t,
491 S.E.2d 571, 575 (S.C. 1997)).
LEGAL AUTHORITY: Statutory and common law
SPECIAL CONSIDERATIONS: Pleading Issues
The South Carolina Rules of Civil Procedure mandate that “[i]n a pleading to a preceding pleading, a
party shall set forth affirmatively … contributory negligence … and any other matter constituting an avoid-
ance or affirmative defense.” S.C. R. Civ. P. 8(c). Thus, all affirmative defenses should be pled in the defendant’s
answer to the complaint.

454  v  Product Liability Conference  v  April 2011


However, the Rules do allow amendment of the pleadings, stating “[w]hen issues not raised by the
pleadings are tried by express or implied consent of the parties they shall be treated in all respects as if they had
been raised in the pleadings.” S.C. R. Civ. P. 15(b). Even upon objection of the admission of evidence at trial relat-
ing to non-pled issues, “the court may allow the pleadings to be amended and shall do so freely when the presen-
tation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that
the admission of such evidence would prejudice him in maintaining his action or defense upon such merits.” Id.
JURY INSTRUCTION: Comparative Fault; Proximate Cause
Several South Carolina Model Requests to Charge regarding proximate cause and comparative negli-
gence are available for review. Anderson’s South Carolina Requests to Charge – Civil §20-2, Negligence – Proxi-
mate Cause, available at Lexis SC-JICIV 20-2; Anderson’s South Carolina Requests to Charge – Civil §23-1,
Comparative Negligence – General Verdict Charge, available at Lexis SC-JICIV 23-1; Anderson’s South Caro-
lina Requests to Charge – Civil §23-2, Comparative Negligence – 1 Plaintiff v. 1 Defendant – No Counterclaim,
available at Lexis SC-JICIV 23-2.

XLII. South Dakota


April Dahl
Hinshaw & Culbertson
ACCEPTANCE OF THE DOCTRINE: Yes, with a possible exception/loophole.
Parental negligence is not an available defense in a strict product liability claim, as the negligence of a
parent cannot be imputed to the child. However, parental misuse of a product may be an available defense.
APPLICATION OF THE DOCTRINE: Contributory Negligence, Intervening Cause, and Foreseeability
The conduct/contributory negligence of a plaintiff ’s parents is not a defense to a strict liability prod-
ucts claim. First Premier Bank v. Kolcraft Enterprises, Inc., 686 N.W.2d 430 (S.D. 2004), overruled on other
grounds. However, testimony and/or evidence regarding the conduct of a plaintiff ’s parents, may be allowed for
other purposes, including causation. Id.
Although South Dakota law allows for the defense of unforeseeable misuse (Zacher v. Budd Co., 396
N.W.2d 122, 139-140 (S.D., 1986)), as an intervening cause in strict product liability cases, there is no law
regarding whether the misuse of the product by a parent can be used as a defense to plaintiff ’s case. (Note
that it appears the defense of misuse encompasses improper assembly/installation and failure to follow warn-
ings/instructions. Zacher, 396 N.W.2d at 134-135.) South Dakota law does suggest that misuse of “others” is a
defense to a strict product liability claim. Shaffer v. Honeywell, Inc., 249 N.W.2d 251 (S.D. 1976), overruled on
other grounds. As South Dakota courts have not indicated whether the defense of misuse may be applied to
parents in a strict product liability claim resulting in the injury/death of a child, it is unclear whether South
Dakota courts would allow a counter-claim or third-party claim against parents for misuse.
BURDEN OF PROOF: Defendant Has Burden of Proof
Ordinarily, the defendant has the burden of establishing contributory negligence. Bauman v. Auch, 539
N.W.2d 320 (S.D., 1995). However, as indicated above, contributory negligence of a parent is not a defense to a
strict liability products claim.
Defendant has the burden of proving misuse as a defense. Kappenman v. Action Inc., 392 N.W.2d 410
(S.D., 1986). However, plaintiff has burden of proving causation, and to meet this burden, it is sufficient that
plaintiff negate his own misuse or the misuse of others. Shaffer v. Honeywell, Inc., 249 N.W.2d 251 (S.D. 1976),
overruled on other grounds.

The Parental Negligence Doctrine  v  Shirley  v  455


QUESTION OF LAW OR FACT: Generally a Question of Fact
Contributory negligence is ordinarily a question for the jury, unless the facts are such that there can
be no disagreement that the question should not be submitted to the jury. Berg v. Sukup Mfg. Co., 355 N.W.2d
833 (S.D. 1984). However, as indicated above, contributory negligence of plaintiff ’s parents is not a defense to a
strict liability products claim.
Whether a product was misused, including whether the misuse was reasonably foreseeable, is a ques-
tion for the jury. Peterson v. Steel Scaffolds Co., 400 N.W.2d 909 (S.D. 1987).
LEGAL AUTHORITY: Common law
First Premier Bank v. Kolcraft Enterprises, Inc., 686 N.W.2d 430 (S.D. 2004), overruled on other
grounds; Shaffer v. Honeywell, Inc., 249 N.W.2d 251 (S.D. 1976), overruled on other grounds and Peterson v. Steel
Scaffolds Co., 400 N.W.2d 909 (S.D. 1987).
SPECIAL CONSIDERATIONS: Pleading Requirements
A defendant is required to plead any and all defenses as affirmative defenses in its answer to plaintiff ’s
complaint. SDCL §15-6-8(b) and Chapman v. Chapman, 713 N.W.2d 572 (S.D., 2006). Failure to do so results
in bar of such defenses which have not been pled. High Plains Genetics Research, Inc. v. J K Mill-Iron Ranch, 535
N.W.2d 839 (S.D., 1995). The defense of misuse can be plead as an affirmative defense. Peterson v. Steel Scaffolds
Co., 400 N.W.2d 909 (S.D. 1987).
JURY INSTRUCTION: South Dakota Pattern Jury Instructions Not Available Online
South Dakota Pattern Jury Instructions are available in hard copy only. South Dakota Pattern Jury
Instructions regarding strict product liability can be found in Section 20-120. Section 20-120-90 is entitled
“Contributory Negligence Not a Defense.” The following modifications of §20-120-90 have been upheld: “…
The conduct of the plaintiff or his parents is not a defense to the plaintiff ’s strict liability claim.” First Premier
Bank v. Kolcraft Enterprises, Inc., 686 N.W.2d 430 (S.D. 2004), overruled on other grounds; and “The contribu-
tory negligence of plaintiff or of his parents, if any, is not a defense to plaintiff ’s strict liability claim.” First
Premier Bank v. Kolcraft Enterprises, Inc., 686 N.W.2d 430 (S.D. 2004), overruled on other grounds. Other key
South Dakota Pattern Jury Instructions include: §20-120-60 Misuse of Product as a Defense; and §20-120-50
Substantial Unforeseeable Changes to Product. Additionally, the following instruction was found to be revers-
ible error: Any subsequent misuse [rather than “unforeseeable” subsequent misuse] would necessarily relieve
defendant manufacturer from liability. Zacher v. Budd Co., 396 N.W.2d 122 (S.D. 1986).

XLIII. Tennessee
Tim Peeples
Daniel Coker Horton & Bell, P.A.
ACCEPTANCE OF THE DOCTRINE: Yes, but only in limited situations.
Parental immunity in Tennessee has been limited to conduct that constitutes the exercise of parental
authority, the performance of parental supervision and the provision of parental care and custody. Broadwell
v. Holmes, 871 S.W. 2d 471, 476-77 (Tenn. 1994). Prior to 1994, the doctrine of parental immunity barred all
actions in Tennessee for injuries to a minor resulting from a parent’s negligence. In Broadwell, the Tennessee
Supreme Court noted that the application of parental immunity depended upon both the nature of the acts and
the context in which the parent performed the acts. The operation of an automobile, for example, would usu-
ally fall outside the scope of parental immunity and would not be protected in this jurisdiction. Id. However, the
Supreme Court found the Court of Appeals had erred when it created a bright-line rule prohibiting the applica-

456  v  Product Liability Conference  v  April 2011


tion of parental immunity where the alleged negligence occurred in the performance of employment-related
activities. Butterworth v. Butterworth, 154 S.W. 3d 79, 82 (Tenn. 2005). The Court’s decision in Butterworth high-
lights the need to examine the nature of the parental act causing the injury to the child, the scope and purpose
of the act and the factual context in which the act occurred in determining whether the immunity applies. Ten-
nessee’s appellate courts have yet to hold that any particular activity, including operating a motor vehicle, would
or would not be protected by a bright-line rule of immunity.
Since the Broadwell decision, Tennessee’s appellate courts have only addressed the issue of parental
immunity only occasionally and have offered little guidance to practitioners and trial courts as to the circum-
stances in which the immunity should apply. In one of those post-Broadwell decisions, the Court of Appeals
affirmed a grant of summary judgment in favor of a two-year-old’s father and a denial of summary judgment
to the minor’s grandfather in a case arising out of an injury sustained when the two-year-old placed her hand
in the fan belt of a tractor that was stationary but had its engine running. Arnold v. Arnold, No. E2001-00596-
COA-R3-CV, 2002 Tenn. App. LEXIS 107, *1 (Tenn. Ct. App. Feb. 7, 2002). Both the father and grandfather were
alleged to have been negligent in supervising and controlling the minor, who, both admitted, was an “active”
child, while the two were loading a fertilizer spreader attached to the rear of the tractor. Id. at *4. At some point
during the loading process, the minor, who had been standing by her father, asked her grandfather for permis-
sion to come to his side of the tractor for a drink. Id. The grandfather told the minor to walk to his side of the
tractor, and her father did nothing other than state, “[G]o on and get you a drink.” Id. at *5-*6. The Court of
Appeals applied the parental immunity doctrine and dismissed the claims against the minor’s father, but the
Court declined to grant summary judgment to the grandfather given these facts. Id. at *6-*7. Although the
Court of Appeals applied the immunity, it offered no detailed analysis of its decision with respect to the father,
simply finding that the father was supervising the child and was, therefore, entitled to immunity.
APPLICATION OF THE DOCTRINE: Modified Comparative Fault
The doctrine is applied through Tennessee’s modified comparative fault system. Tennessee abandoned
its contributory negligence scheme under which a plaintiff ’s negligence barred the plaintiff ’s recovery (with
limited exceptions to that rule) in 1992 and adopted a modified comparative fault approach. McIntyre v. Balen-
tine, 833 S.W. 2d 52, 57 (Tenn. 1992). Under this new system, the plaintiff may recover so long as the plaintiff ’s
negligence remains less than the defendant’s negligence. Id. In other words, Tennessee follows the “49 percent”
rule. Id.
BURDEN OF PROOF: Burden of Proof Rests Upon the Defendant
Tennessee considers the defense of comparative fault to be an affirmative defense. Free v. Carnesale,
110 F. 3d 1227, 1230 (6th Cir. 1997). Accordingly, a defendant who raises the defense must prove a prima facie
case of negligence against the nonparty the defendant contends was negligent. Id. at 1231.
QUESTION OF LAW OR FACT: Question of Fact
Tennessee’s courts have held that “[t]he presence of comparative fault is a question of fact within
the province of the jury, and it should not be lightly invaded by the trial court.” Elrod v. Continental Apts., No.
M2007-01117-COA-R3-CV, 2008 Tenn. App. LEXIS 76, *6 (Tenn. Ct. App. Feb. 13, 2008) (quoting LaRue v. 1817
Lake, Inc., 966 S.W. 2d 423, 427 (Tenn. Ct. App. 1997). Trial courts have been instructed that “[s]ummary judg-
ment is generally not an appropriate judicial mechanism by which to determine comparative fault.” Elrod, 2008
Tenn. App. LEXIS at *6.
LEGAL AUTHORITY: Statutory and Leading Case Authority
The seminal case on parental immunity in Tennessee is Broadwell v. Holmes, 871 S.W. 2d 471, 476-77
(Tenn. 1994), which is discussed above.

The Parental Negligence Doctrine  v  Shirley  v  457


SPECIAL CONSIDERATIONS: Pleading Issues
In light of the Tennessee Supreme Court’s decision in McIntyre, the Tennessee Rules of Civil Procedure
were amended to require that the comparative fault of a nonparty be pled as an affirmative defense. Free, 110 F.
3d at 1230. Rule 8.03 provides that “[i]n pleading to a preceding pleading, a party shall set forth affirmatively
facts in short and plain terms relied upon to constitute . . . comparative fault (including the identity or descrip-
tion of any other alleged tortfeasors).” Under Rule 8.03, the defendant must not only raise comparative fault as a
defense, but it must also identify, by name or description, the nonparty alleged to have caused or contributed to
the accident.
JURY INSTRUCTION: Modified Comparative Fault
Tennessee’s Pattern Jury Instructions on comparative fault are available for review. T.P.I. - Civil 3.50,
Comparative Fault, Theory and Effect; T.P.I. - Civil 3.51, Comparative Fault, Basis of Comparison; T.P.I. - Civil
3.52, Additional Factors for Comparing Fault; T.P.I. - Civil 3.53, Where Claim Is Made Against One not Joined as
a Party; T.P.I. - Civil 3.54, Wrongful Death; T.P.I. - Civil 3.55, Comparative Fault Principal-Agent Directed Impu-
tation; T.P.I. - Civil 3.56, Respondeat Superior (Separate Allegation of Fault against Employer); T.P.I. - Civil 3.57,
Principal and Agent Sued Disputed Agency; T.P.I. - Civil 3.58, Explanation of Verdict; T.P.I. - Civil 3.59, Jury Ver-
dict Form; T.P.I. - Civil 3.60, Comparative Fault Verdict Form (No Counterclaim); T.P.I. - Civil 3.61, Comparative
Fault Verdict Form (Two Plaintiff Passengers Counter Claims Between Two Drivers); T.P.I. - Civil 3.62, Com-
parative Fault Verdict Form (Multiple Defendant Case Where Each Defendant Asserts the Other Defendant or
Non-Party Is at Fault and That the Plaintiff Is Also at Fault); T.P.I. - Civil 3.63, Considering Employer’s Conduct
(Products Liability Cases).

XLIV. Texas
Shelby Bobosky
The Drinnon Law Firm, PLLC
ACCEPTANCE OF THE PARENTAL NEGLIGENCE DOCTRINE: Yes, partially.
Under Texas law, a parent’s negligence cannot be imputed to a child so as to preclude an action by
the child or for its benefit against a third party whose negligent act has injured the child. Gulf Production Co. v.
Quisenberry, 97 S.W.2d 166 (Tex. 1936). In other words, the parental immunity doctrine bars legal action by a
child against his parents, and that child’s recovery from other defendants is not reduced by his parents’ percent-
age of negligence. See Plainview Motels, Inc. v. Reynolds, 127 S.W.3d 21 (Tex. App. -- Tyler 2003, pet. denied);
Shoemake v. Fogel, Ltd., 826 S.W.2d 933, 938 (Tex. 1992).
However, in an action for wrongful death of a minor, or in a claim for medical expenses by a parent, the
parents’ own negligence will bar recovery if found to be over 50 percent. Tex. Civ. Prac. & Rem. Code §71.001
(Vernon 2008).
APPLICATION OF THE DOCTRINE: Proportionate Responsibility
Texas applies a statutory comparative-negligence wherein a finding of contributory negligence against
the plaintiff no longer automatically bars recovery, but rather reduces the plaintiff ’s recovery in proportion to
his or her negligence unless Plaintiff ’s responsibility is greater than 50 percent. Kroger Co. v. Keng, 23 S.W.3d
347, 350 (Tex. 2000).
Section 33.001 of the Texas Civil Practice and Remedies Code provides that “a claimant may not
recover damages if his percentage of responsibility is greater than 50 percent.” Tex. Civ. Prac. & Rem. Code
§33.001 (Vernon 2008). “If the claimant is not barred from recovery under Section 33.001, the court shall

458  v  Product Liability Conference  v  April 2011


reduce the amount of damages to be recovered by the claimant with respect to a cause of action by a percentage
equal to the claimant’s percentage or responsibility.” Id. §33.012(a) (Vernon 2008).
Chapter 33 defines “claimant” as “party seeking recovery of damages pursuant to the provisions of
Section 33.001, including a plaintiff, counterclaimant, or third-party plaintiff seeking recovery of damages. In
an action in which a party seeks recovery of damages for . . . death of another person, . . . “claimant” includes
both that other person and the party seeking recovery of damages pursuant to the provisions of Section 33.001.
Tex. Civ. Prac. & Rem. Code §33.011(1) (Vernon 2008).
In accordance with Texas law, each parent is entitled to be considered separate and distinct when
reducing any damage apportionment under section 33.003. Tex. Civ. Prac. & Rem. Code §33.003 (Vernon
2008). Therefore, if more than one parent plaintiff is found responsible for the harm, the plaintiffs’ percentages
of responsibility will not be combined to reach the 51 percent threshold and bar them from recovering dam-
ages claimed as individuals [not as next friend or minor child]. Salinas v. Kristensen, 2009 Tex. App. LEXIS 9085
(Tex. App.--Corpus Christi [13 Dist.], Nov. 25, 2009) Sanchez v. Brownsville Sports Center, Inc., 51 S.W.3d 643,
656 (Tex. App.--Corpus Christi 2001), vacated w.r.m. sub nom. Honda Motor Co. v. Sanchez, No. 01-1040, 2003
Tex. LEXIS 8, at *1 (Tex. Feb. 6, 2003). Additionally, the negligence of one parent may not be imputed to the
non-negligent parent so as to reduce the claim of the non-negligent parent arising out of the child’s injury. See
Wright v. Standard Oil Co., Inc., 470 F.2d 1280, 1287 (5th Cir. 1972) (in an action by the parents to recover dam-
ages for medical costs and loss of the child’s services resulting from injury to the child, the father’s damages
were reduced pro rata by his proportionate share of fault, but the reduction was not applied to the non-negli-
gent mother’s damages).
BURDEN OF PROOF: Burden of Proof Rests Upon the Defendant
Contributory negligence is an enumerated affirmative defense within Texas Rule of Civil Procedure
94, and therefore the defendant’s burden to plead and request instructions on the contributory negligence affir-
mative defense. Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 481 (Tex. 2001). Proportionate responsibility
questions, are appropriate when the defendant has met his burden of proof on contributory negligence. Block v.
Mora, 314 S.W.3d 440 (Tex. App.--Amarillo [7th Dist.] 2009).
However, Rule 94’s requirement of pleading is not absolute. “[T]he defense of [parental] immunity
…is not waived by the failure to specifically plead if it is apparent on the face of the petition and established as
a matter of law.” Shoemake v. Fogel, Ltd., 826 S.W.2d 933, 937 (Tex. 1992).
QUESTION OF LAW OR FACT: Question of Fact
Section 33.003 of the Texas Civil Practice & Remedies Code, entitled “Determination of Percentage of
Responsibility,” provides that the trier of fact shall determine the percentage of responsibility for each claimant,
each defendant, each settling person, and each responsible third party with respect to each person’s causing or
contributing to cause harm from, among other things, a negligent act or a defective product, for which recovery
of damages is sought. Tex. Civ. Prac. & Rem. Code §33.003 (Vernon 2008).
The issue, however, of whether the proportionate-responsibility statute applies to the facts at hand is
a question of law because it involves application of well-established rules of statutory construction. First Am.
Title Ins. Co. v. Combs, 258 S.W.3d 627, 631 (Tex. 2008); Reveille Trucking, Inc. v. Loera Customs Brokerage, Inc.,
No. 13-08-00127-CV, 2010 Tex. App. LEXIS 5027, at *3 (Tex. App.—Corpus Christi June 29, 2010, no pet. h.)
(mem. op.).
LEGAL AUTHORITY: Statutory and Leading Case Authority
The leading authority is Sections 33 et seq. (proportionate responsibility) and Section 71 et seq.
(wrongful death) of the Texas Civil Practices & Remedies Code.

The Parental Negligence Doctrine  v  Shirley  v  459


JURY INSTRUCTION: Proportionate Responsibility
Texas Pattern Jury Instructions regarding proportionate responsibility are available for review. See
Texas Patter Jury Charge – Basic Negligence Questions; PJC 4.1 – Broad Form Joint Submission of Negligence
and Proximate Cause; and PJC 4.3 – Proportionate Responsibility.

XLV. Utah
Michael C. Osborne
ArcherNorris
ACCEPTANCE OF THE DOCTRINE: No.
The Supreme Court of Utah approved of the trial court’s decision that the negligence of parents could
not be imputed to a child who is injured and then sues for damages. Jensen v. Utah Ry. Co., 72 Utah 366, 389-
390, 270 P. 349, 358 (1927).

XLVI. Vermont
Natasha Alcivar
Hinshaw & Culbertson
ACCEPTANCE OF THE DOCTRINE: Yes, partially.
Under Vermont law, a parent’s negligence cannot be imputed to a child so as to limit or preclude recov-
ery in an action by the child or for its benefit against a third party whose negligent act has injured the child. In
addition, a third party claim cannot be brought against the child’s parents for their negligence (e.g. for improper
assembly, installation, or failure to follow instructions and heed warnings) in this context, because Vermont does
not recognize a right to contribution between joint tortfeasors. However, if the parent brings a claim seeking to
recover damages sustained by the parent as a result of injury to a child, the defendant can raise the comparative
negligence of the parent as a defense. It is important to note that under Vermont law, contributory negligence is
retained as a bar to recovery where the Plaintiff’s negligence exceeds 50 percent of the total causal negligence.
The terms “comparative negligence” and “contributory negligence” are used interchangeably. Accordingly, in an
action by a parent for his or her benefit, a counterclaim would not be necessary because, under Vermont law, if
the parent was found to more than 50 percent at fault, his or her recovery would be barred. See Matson v. Kehoe,
979 F. Supp. 1031 (D.Vt. 1997); Ploof v. Burlington Traction Co., 41 A. 1017 (Vt. 1898).
APPLICATION OF THE DOCTRINE: Causation.
As explained in Matson, the Court noted that the Defendants were “not foreclosed, of course, from
demonstrating at trial that the parents’ conduct was the proximate cause of [the child’s] injuries, and that the
Defendants’ negligence, if any, was not a substantial factor in bringing about her injuries.” 979 F. Supp. at 1038
n. 2; see also Lee v. Wheeler, 298 A.2d 851 (Vt. 1972) (contributory negligence does not bar or reduce recovery
unless it is the proximate cause or a part thereof of the accident).
BURDEN OF PROOF:
“The plaintiff bears the burden of proving that the product is defective, and that its defect was the
proximate cause of harm.” Webb v. Navistar Int’l Transp. Corp., 692 A.2d 343, 346 (Vt. 1996).
“A fundamental tenet of the comparative negligence doctrine is that the defendant, in asserting such a
defense, bears the burden of proving by a preponderance of the evidence that the plaintiff was negligent and that
such negligence was a proximate cause of the plaintiff’s injuries.” Barber v. LaFromboise, 908 A.2d 436 (Vt. 2006).

460  v  Product Liability Conference  v  April 2011


QUESTION OF LAW OR FACT: Question of Fact
The Vermont Supreme Court has held that proximate cause is usually left to a jury. Collins v. Thomas,
938 A.2d 1208 (Vt. 2007); Tufts v. Wyand, 536 A.2d 541 (Vt. 1987).
Allocation of the respective percentages of causal negligence attributable to the plaintiff and
defendant is generally a fact question for the jury. Barber, 908 A.2d 436.
LEGAL AUTHORITY: Statutory and common law
Matson v. Kehoe, 979 F. Supp. 1031 (D.Vt. 1997)
Ploof v. Burlington Traction Co., 41 A. 1017 (Vt. 1898)
Robinson v. Cone, 22 Vt. 213 (Vt. 1850)
Comparative negligence statute: 12 V.S.A. §1036
SPECIAL CONSIDERATIONS (Pleading or Notice Requirements, etc):
The Defendant must assert comparative negligence as an affirmative defense.
JURY INSTRUCTION: Proximate Cause; Comparative Negligence

XLVII. Virginia
Sandra G. Ezell
Bowman and Brooke LLP
ACCEPTANCE OF THE DOCTRINE: No. Negligence of parents is not imputable to the child.
Virginia is a contributory negligence state. Virginia does not apply the doctrine of comparative fault
and does not balance the negligence of the parties in determining liability. See Smith v. Va. Elec. & Power Co.,
204 Va. 128, 133, 129 S.E.2d 655, 659 (1963). Rather, under Virginia’s contributory negligence doctrine, a plain-
tiff ’s failure to exercise ordinary care for his own safety, which proximately contributes to his injury, completely
bars his recovery, regardless of any negligence on the defendant’s part. See Ford Motor Co. v. Bartholomew, 224
Va. 421, 432, 297 S.E.2d 675, 680-81 (1982).
In Virginia, “the negligence of the parent or other person having custody and care of an infant will not
be imputed to the infant.” American Tobacco Co. v. Harrison, 27 S.E.2d 181, 185, 181 Va. 800, 809 (Va. 1943) (cit-
ing Tugman v. Riverside & Dan River Cotton Mills, 132 S.E. 179, 144 Va. 473 (Va. 1926). As the American Tobacco
court explained, the issue is really one of proximate cause.
Of course, it is essential to a recovery in any case that negligence on the part of the defendant
be shown. But when that is proven in a suit by the child, the parents’ negligence is no defense,
because it is regarded not as a proximate but as a remote cause of the injury. And the reason lies
in the irresponsibility of the child, who, itself being incapable of negligence, cannot authorize
it in another. It is not correct to say that the parent is the agent of the child, for the latter cannot
appoint an agent. The law confides the care and custody of a child non sui juris to the parent, but
if this duty be not performed, the fault is the parent’s, not the child’s. There is no principle, then, in
our opinion, upon which the fault of the parent can be imputed to the child. To do so is to deny to
the child the protection of the law.
Id. (internal citations omitted). See also Evans v. Evans, 695 S.E.2d 173 (Va. 2010).

The Parental Negligence Doctrine  v  Shirley  v  461


XLVIII. Washington
Kate Stimeling
Schiff Hardin
ACCEPTANCE OF THE DOCTRINE: No; the negligence of a parent is not imputed to a child in a
child’s action for recovery.
Under Washington law, a parent’s negligence cannot be imputed to a child suing for injuries sustained.
Vioen v. Cluff, 418 P.2d 430, 440 (Wash. 1966) (“The jury also should have been told in clear language that, if
they found that the defendant negligently caused the injury to the minor plaintiff, the fact that the parent’s fail-
ure to look out for and care for her son may also have contributed to the proximate cause of the injury is irrel-
evant, and that recovery is not to be denied the minor plaintiff because of such negligence of the parent.”);
Adamson v. Traylor, 373 P.2d 961, 962–63 (Wash. 1962) (error to submit question of father’s contributory neg-
ligence to jury in action for child’s damages); Hilstad v. City of Seattle, 271 P. 264, 265 (Wash. 1928) (“Both the
ethical basis of the rule of imputed negligence and sound authority sustain the view that, where the child is the
real plaintiff in an action for his own injury, the parent’s contributory negligence is no defense. This view is cer-
tainly sustained by reason, and is now supported by the great weight of authority.”).
Note, however, that “in cases of injury to, or wrongful death of, a child, where the action is brought by
a parent for his own benefit, the contributory negligence of the parent, the actual plaintiff, will, of course, bar
recovery.” Hilstad, 271 P. 264 at 265 (emphasis added); see also McCandless v. Inland Northwest Film Service,
Inc., 392 P.2d 613, 618 (Wash. 1964) (in parents’ action for wrongful death of child the contributory negligence
of parent — as well as other adult persons delegated by parent to exercise control over child — “is imputable
to the child in an action by and for the parent”); see also Roth v. Union Depot Co., 43 P. 641, 647 (Wash. 1896)
(“This being an action brought for the benefit of the child, and not for the benefit of the parent, the negligence
of the parent cannot be imputed to the child.”).
Also relevant is the Washington Supreme Court ruling that a child under age six is not an “entity” to
whom fault can be apportioned under Revised Code of Washington 4.22.070(1). Cox v. Hugo, 329 P.2d 467, 469
(Wash. 1958); Price v. Kitsap Transit, 886 P.2d 556, 559 (Wash. 1994). Consequently, for actions prosecuted by
children six years or under no contributory fault will be attributed to the minor — for either the minor’s “fault”
or otherwise.
JURY INSTRUCTION: Contributory Negligence and Imputed Negligence
Washington Pattern Jury Instruction 11.04: “Negligence of Parent Not Imputed: Negligence, if any, if a
parent is not imputed or charged to his or her child.” Available for review at 6 WAPRAC WPI 11.04.
Note that this instruction references Revised Code of Washington 4.22.020, which may have been
abrogated by Revised Code of Washington 4.22.070 and the 1986 enactment of Washington’s Tort Reform
Act. Consequently, it has been suggested that the use of Jury Instruction 11.04 depends on an interpretation
of Revised Code of Washington 4.22.070, which indicates that fault is to be attributed to all of the entities that
caused the claimant’s damages. Nothing in Revised Code of Washington 4.22.070, however, expressly abrogates
or repeals Revised Code of Washington 4.22.020 or over 100 years of common law that refuses to impute paren-
tal negligence to a child in a child’s action to recovery for his or her injuries.

XLIX. West Virginia


Christopher R. Workman
Hawkins Parnell Thackston & Young LLP

462  v  Product Liability Conference  v  April 2011


ACCEPTANCE OF THE DOCTRINE: Yes, partially.
A parent who is negligent in causing the death of a child is subject to a reduction of any damages
award levied against the defendant for wrongful death in proportion to the parent’s level of fault. Syl. Pt. 7 Cole
v. Fairchild, 198 W.Va. 736 (1996). (citing W.Va. Code §55-7-6).
Even when one parent’s negligence may equal or exceed the combined negligence of other parties, the
other parent may still recover. Id. (citing Bradley v. Appalachian Power Co., 163 W.Va. 332 (1979).
An unemancipated minor may maintain an action against a parent for personal injuries sustained in
an automobile accident where the parent is covered by automobile insurance. Courtney v. Courtney, 186 W.Va.
597, 606 (1991). The court’s rational was that the presence of insurance will not cause family discord. Id.
APPLICATION OF THE DOCTRINE: Comparative Fault
Pursuant to W.Va. Code §55-7-6 (2010), the jury and judge may award such damages as to it may seem
fair and just, and, may direct in what proportions the damages shall be distributed to the listed beneficiaries.
“A party is not barred from recovering damages in a tort action so long as his negligence or fault does
not equal or exceed the combined negligence or fault of the other parties involved in the accident.” Syl. Pt. 3,
Bradley v. Appalachian Power Co., 163 W.Va. 332 (1979).
BURDEN OF PROOF: Burden of Proof Rests Upon the Defendant
Where the tortious conduct of two or more actors has combined to bring about harm to the plaintiff,
and one or more of the actors seeks to limit his liability on the ground that the harm is capable of apportion-
ment among them, the burden of proof as to the apportionment is upon each such actor. Tracy v. Cottrell, 206
W.Va. 363, 380 (1999).
QUESTION OF LAW OR FACT: Question of Fact
The question of whether various parties are negligent is one of fact. Cole, 198 W.Va. 736 at 752; Syl. Pt.
3 Bradley 163 W.Va. 332.
LEGAL AUTHORITY: Case Law and Statutory
West Virginia’s wrongful death statute, W.Va. Code §55-7-6, provides that the jury and judge may
award such damages as to it may seem fair and just, and, may direct in what proportions the damages shall be
distributed to the listed beneficiaries.
A parent who is negligent in causing the death of a child is subject to a reduction of any damages
award levied against the defendant for wrongful death in proportion to the parent’s level of fault. Syl. Pt. 7 Cole
v. Fairchild, 198 W.Va. 736 (1996). (citing W.Va. Code §55-7-6).
SPECIAL CONSIDERATIONS: Pleading Issues
Rule 8 of the West Virginia Rules of civil procedure requires that all affirmative defenses, including
contributory negligence, be pled in the defendant’s answer to the complaint. Rule 15 allows a party to amend
pleadings.

L. Wisconsin
John Monical
Paul Weltlich
Lawrence Kamin Saunders & Uhlenhop LLC
ACCEPTANCE OF THE DOCTRINE: No, except to limit a parent’s recovery in Wrongful Death and/or
for Medical Expense.
The Parental Negligence Doctrine  v  Shirley  v  463
In Wisconsin, contributory negligence on the part of a parent affects the recovery of the parent in
wrongful death cases and in claims for the child’s medical expenses. It is not imputed to the child so as to bar
the child’s suit for injuries and damages.
APPLICATION OF THE DOCTRINE: Statutory Comparative Fault & Contributory Negligence in Lim-
ited Circumstances
Wisconsin’s comparative negligence statute, Wis.Stat. §895.045, applies to actions for death, per-
sonal injury, or property damage. Under this statute, a plaintiff may recover damages against any particular
defendant when his or her negligence is not greater than the negligence attributed to that defendant. Wiscon-
sin applies an individual comparison approach. Accordingly, when multiple defendants are involved, to deter-
mine liability, the negligence of each defendant is separately measured against any negligence attributed to the
plaintiff, rather than the combined percentage of negligence attributed to all persons against whom recovery is
sought. Wis.Stat. §895.045.
In 1995, the comparative negligence statute was amended to provide that the liability of each
defendant found to bear less than 51 percent of the total causal negligence of an accident is limited to the per-
centage of negligence attributed to that defendant. By comparison, a person found to bear 51 percent or more
of the causal negligence is jointly and severally liable for all damages, reduced by the causal negligence attrib-
uted to the plaintiff. Wis. Stat. §895.045(1).
The 1995 amendment does not apply to strict products liability actions. In those actions, a compari-
son will be made under common law between the fault of the product and the negligence or assumption of the
risk of a plaintiff, and the plaintiff ’s allowable damages are reduced by the percentage of fault attributed to the
plaintiff. However, bearing less than 51 percent of the fault does not prevent joint and several liability for all
damages. Fuchsgruber v. Custom Accessories, Inc., 244 Wis.2d 758, 628 N.W.2d 833 (Wis. 2001); Industrial Risk
Ins. v. American Engineering Testing, Inc., 318 Wis.2d 148, 769 N.W.2d 82 (1st Dist. 2009).
Medical Expenses:
Under Wisconsin law, parents are directly responsible for medical expenses of an injured child and,
accordingly, a claim to recover for medical expenses belongs to the parent, not the child. Because the plain-
tiff is the parent, the comparison of negligence for medical expenses is directly between the parent and the
defendant. Buckett v. Republic Ins. Co., 101 Wis.2d 634, 305 N.W.2d 156 (Ct. App. 1981); Frederick v. Merrill Area
Public Schools, 126 Wis.2d 509, 375 N.W.2d 219 (3rd Dist. 1985) (unpublicized opinion).
Wrongful Death:
Wisconsin’s wrongful death statute provides that “the aggregate of the damages … shall be diminished
under [the contributory negligence statute] if the deceased or person entitled to recover is found negligent.”
Wis. Stat. §895.04(7). A parent’s negligence will therefore diminish that parent’s recovery for wrongful death
of a child, but will not affect the non-negligent parent’s share. Chang v. State Farm, 182 Wis.2d 549, 558-59, 514
N.W.2d 399, 402 (Wis. 1994).
Other Damages:
In child injury cases, claims for damages other than medical expenses continue to belong to the child.
Accordingly, the parent’s negligence is considered only to the extent that it reduces a defendant’s overall per-
centage below the 51 percent threshold. However, under Wisconsin law, a parent also enjoys a limited immunity
from suits of the child where the alleged negligent act involved: (1) an exercise of parental authority over the
child; or (2) an exercise of ordinary parental discretion with respect to the provision of food, clothing, hous-
ing, medical and dental services, and other care.” Goller v. White, 20 Wis.2d 402, 413, 122 N.W.2d 193, 198 (Wis.
1963); Lemmen v. Servais, 39 Wis. 2d 75, 77-78, 158 N.W.2d 341, 343 (Wis. 1968). A parent acting in these situ-

464  v  Product Liability Conference  v  April 2011


ations has no liability to the child. As a result, that parent is not a joint-tortfeasor bearing responsibility under
the comparative negligence statute. Frederick, supra; See also Lemmen supra (dismissing a claim under the con-
tribution statute).
BURDEN OF PROOF: Burden of Proof Rests Upon the Defendant
The burden of proof is on the party who asserts the percentage of causal negligence attributable to
another. The asserting party must satisfy this burden by the greater weight of the credible evidence, to a reason-
able certainty. WIS IL-Civil 1580; Gauthier v. Carbonneau, 226 Wis. 527, 277 N.W. 135 (Wis. 1937).
QUESTION OF LAW OR FACT: Question of Fact
The issue of comparative negligence is a question of fact for the jury. See WIS IL-Civil 1580.
LEGAL AUTHORITY: Statutory and common law
SPECIAL CONSIDERATIONS: None.
JURY INSTRUCTIONS: WIS JI-Civil 1012 (Parents Duty to Protect Child); WIS JI-CIVIL 1840 (Injury to
Minor Child: Damages for Medical Expenses); WI JI-CIVIL 3286 (Strict Liability: Contributory Negligence: User);
see also WIS JI-Civil 1582 (Comparative Negligence: Adult and Child); WIS JI-CIVIL 1890 (Damages: Death of
Minor Child: Premajority Pecuniary Loss); WIS JI-CIVIL 3290 (Strict Products Liability: Special Verdict).

LI. Wyoming
John W. Grund
Grund, Dagner & Nelson, P.C.
ACCEPTANCE OF THE DOCTRINE: Yes, partially.
Under Wyoming law, a child has no right of action against parent for simple negligence, except in cases
involving the operation of an automobile. Dellapenta v. Dellapenta, 838 P.2d 1153 (Wyo. 1992) (superseded by
statute regarding seatbelt use, W.S. §31-5-1402); Ball v. Ball, 269 P.2d 302 (Wyo. 1954); Huff v. Shumate, 360
ESupp. 2d 1197 (Wyo. 2004).
Wyoming courts will also waive parental immunity in cases where parental actions “disclose so clear
an invasion of the rights of the child as tending to bring discord into the family and to disorganize its proper
government,” Ball, 269 P.2d at 314, although it is unclear whether a parent’s willful and wanton misconduct is
sufficient.
In 1954, the Wyoming Supreme Court observed that “the judiciary should be reluctant to encourage
actions as maintainable between children and their parents unless sanctioned by the statute law, or where they
disclose so clear an invasion of the rights of the child as tending to bring discord into the family and to disorga-
nize its proper government.” Id. at 314.
Thereafter, the Court in Oldman v. Bartshe, 480 P.2d 99 (1971), reversed a trial court’s order dismissing
an action based on parental immunity. In Oldman, a child was killed in an auto accident allegedly caused by his
father’s intoxication. The court reversed, explaining that “it is possible that willful and wanton disregard of the
wellbeing of a child, resulting in injury, could so invade his rights that discord and disorganization would result
in the family unit.”
APPLICATION OF THE DOCTRINE: Comparative Fault
This doctrine is applied through the principle of apportionment of fault. According to W.S §l-l-109(b),
contributory fault may not bar recovery by any claimant as long as the plaintiffs contributory fault is not more
than fifty percent of the total fault of all actors, though the recovery is reduced in proportion to the amount of

The Parental Negligence Doctrine  v  Shirley  v  465


fault attributed to the plaintiff. Under the comparative-fault scheme, a jury is entitled to apportion fault among
all - parties and nonparties alike - whose conduct proximately caused injury to the claimant. §1-1-109; Pin-
nacle Bank v.Villa, 100 P.3d 1287 (Wyo. 2004); Kirby Bldg Sys. v. Mineral Explorations Co., 704 P.2d 1266 (Wyo.
1985).
BURDEN OF PROOF: Burden of Proof is on the Defendant
Contributory negligence/comparative fault is an affirmative defense that must be must be pled and
proven by the defendant. Wyoming Rule of Civil Procedure (W.R.C.P.) 8(c); Anderson v. Schulz, 527 P.2d 151,
154 (Wyo. 1974).
QUESTION OF LAW OR FACT: Question of Fact
Factual resolution of degrees of negligence and contributory negligence belong to the jury, not the
court. W.S. §1-1-109; Cline v. Sawyer, 618 P.2d 144 (Wyo. 1980); German v. Holmes, 459 P.2d 367 (Wyo. 1969).
Resolving the issue of contributory negligence is not a task for the court except in the clearest of cases. Elite
Cleaners v. Gentry, 510 P.2d 784 (Wyo. 1973).
LEGAL AUTHORITY: Statutory and common law
SPECIAL CONSIDERATIONS: Issues of Pleading
W.R.C.P. 8(c) requires that when “pleading to a preceding pleading, a party shall set forth affirmatively
... contributory negligence ... and any other matter constituting an avoidance or affirmative defense.”
If the defendant fails to plead contributory negligence, the defendant may amend its answer once as a
matter of course at any time before a responsive pleading is filed. If a responsive pleading is filed, a defendant
may amend his pleading only by leave of court or by written consent of the adverse party. W.R.C.P. 15(a).
Additionally, W.R.C.P. 15(b) permits amendments to the pleadings to conform to the evidence. These
motions may be made at anytime, even after judgment, but failure to amend does not affect the result of the
trial of the issues that were tried, but not properly pled. “If evidence is objected to at the trial on the ground that
it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do
so freely when the presentation of the merits of the action will be subserved thereby and the objecting party
fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or
defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evi-
dence.” W.R.C.P. 15(b).
JURY INSTRUCTION: Contributory Negligence

466  v  Product Liability Conference  v  April 2011