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DeCamp v. Fleckenstein - 25 Mich. App. 85, 181 N.W.2d 47 (1970)

Rule:

The rule is that a minor of less than seven years of age cannot, as a matter of law, be guilty of contributory negligence.

Facts:

K.W.D. was eight years old, but had mental age of five years and ten months. K.W.D was struck when he rode his bicycle into the street in front of defendant Louis E. Fleckenstein's car. Plaintiffs, Marilyn J. DeCamp, guardian of K.W.D.'s estate, and George DeCamp, Jr., filed a lawsuit in Michigan state court against Fleckenstein seeking to recover damages for K.W.D.'s injuries. At trial, the court denied plaintiffs' request to instruct the jury that it could not find the K.W.D. contributorily negligent as a matter of law if it determined that he had a mental age of under seven years. The trial court left the contributory negligence determination to the jury; it instructed them that K.W.D. should be held to the degree of care expected of a reasonably careful minor with the same age, mental capacity, and experience as K.W.D. The jury rendered a verdict for Fleckenstein, and judgment was entered on the verdict. Plaintiffs appealed, arguing that the requested instruction should have been given.

Issue:

Did the trial court err in not instructing the jury that it could not find K.W.D.contributorily negligent as a matter of law if it determined that he had a mental age of under seven years?

Answer:

No.

Conclusion:

The appellate court noted that Michigan followed the rule that held that infants under seven years of age were legally incapable of contributory negligence. The rule, however, was applied based upon chronological and not mental age. There was no legal support for plaintiffs' contention that the rule should be applied to K.W.D. based upon his mental capacity. The jury was properly instructed on the issue; their determination of no cause of action would not be disturbed.

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