Dunn v. Teti

280 Pa. Super. 399



Conclusive presumption of incapability of negligence applies to children less than seven years of age.


Appellant injured minor and his parents sought review from an order of the Court of Common Pleas of Allegheny County (Pennsylvania), which granted appellee minor and parents' motion for summary judgment because it presumed appellee, a five-year-old, incapable of negligence. Appellant's complaint had alleged a cause of action in trespass for injuries caused by the negligent swinging of a wooden stick by five-year-old appellee minor.


Is a minor five years of age capable of actionable negligence?




The court affirmed the trial court's grant of summary judgment and held that the conclusive presumption of incapability of negligence applied to children less than seven years of age, and that because the essential facts were not in dispute, appellant injured minor and his parents were not entitled to relief. The court stated that although the obligation to use reasonable care extended to both adults and minors, a child was held to that measure of care that other minors of like age, experience, capacity, and development would ordinarily exercise under similar circumstances. The court stated minors under the age of seven years were conclusively presumed incapable of negligence. The court held that the condition of immaturity was equally applicable to the acts of the child regardless of whether he was labeled plaintiff or defendant, and in either case the same standard was applied.

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