Home Table of Contents

WPI 10.05 Ordinary Care—Child—Definition

6 WAPRAC WPI 10.05Washington Practice Series TMWashington Pattern Jury Instructions--Civil

6 Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 10.05 (7th ed.)
Washington Practice Series TM
Washington Pattern Jury Instructions--Civil
April 2022 Update
Washington State Supreme Court Committee on Jury Instructions
Part II. Negligence—Risk—Misconduct—Proximate Cause
Chapter 10. Negligence and Ordinary Care
WPI 10.05 Ordinary Care—Child—Definition
When referring to a child, ordinary care means the same care that a reasonably careful child of the same age, intelligence, maturity, training, and experience would exercise under the same or similar circumstances.
Use this instruction for a child who has passed his or her sixth birthday and who is still young enough that the jury would be justified in finding that lack of intelligence, maturity, training and experience, because of age, was a factor in the child's conduct.
Use WPI 10.01 (Negligence—Adult—Definition) and WPI 10.02 (Ordinary Care—Adult—Definition) with this instruction.
Do not use this instruction if the child is operating a motor vehicle or otherwise engaged in an adult mechanized activity. The adult standard of care applies to such a case.
A child under the age of six cannot be held negligent. As a matter of law, no issue of the child's negligence can be submitted to the jury. Conversely, a 17 or 18 year old of normal capacity may be treated as an adult in all cases. For children between the ages of six and 16, the capacity to be negligent is a question of fact measured by the conduct of a reasonably careful child of the same age, intelligence, maturity, training and experience. See Bauman v. Crawford, 104 Wn.2d 241, 244, 704 P.2d 1181 (1985); Robinson v. Lindsay, 92 Wn.2d 410, 412, 598 P.2d 392 (1979).
Fault cannot be attributed to a child under six years of age, because such a child lacks the mental capacity to comprehend a duty to exercise a standard of care and thus lacks the capacity to be negligent or reckless. The presumption against finding children under six capable of negligence is conclusive and cannot be overcome by evidence to the contrary. Thus, a child under age six is not an “entity” to whom fault can be apportioned under RCW 4.22.070(1). Price v. Kitsap Transit, 125 Wn.2d 456, 461–62, 886 P.2d 556 (1994). See the Comment to WPI 11.03 (Child Under Six Years of Age Incapable of Contributory Negligence).
If a child engages in an inherently dangerous activity normally reserved for adults, such as operating powerful motorized vehicles, the child should be held to an adult or reasonable person standard of care. In such instances it is error to give WPI 10.05, rather than WPI 10.02 (Ordinary Care—Definition—Adult). See Robinson v. Lindsay, 92 Wn.2d 410, 412–14, 598 P.2d 392 (1979) (finding that the operation of a snowmobile is an inherently dangerous activity to which an adult or reasonable person standard of care attaches).
If a child has violated a statute, ordinance, or administrative rule, see WPI 60.04 (Standard of Conduct for Child—Violation of Statute, Ordinance, or Administrative Rule).
Although children under age six are presumed incapable of negligence, they may be held liable for volitional, wrongful conduct. Price v. Kitsap Transit, 125 Wn.2d 456, 464, 886 P.2d 556 (1994); Garratt v. Dailey,46 Wn.2d 197, 202–03, 279 P.2d 1091 (1955).
[Current as of September 2018.]
End of Document