"The standard of care imposed upon children is distinct from that imposed upon adults and is applicable to a child riding a bicycle even though bicyclists in general are subject to the motor vehicle code. ... In Bixenman, the supreme court adopted the generally-held rule that 'where a minor is charged with negligence or contributory negligence by reason of his violation of a safety statute while engaged in an activity not requiring adult qualifications, the standard of care to be applied to such minor is that degree of care which would ordinarily be exercised by a child of the same age, experience, intelligence and educational level. ...
[...]
"Thus, a statutory violation by a child is not negligence per se because of the special child's standard. Instead, the violation is simply another factor to be considered by the fact finder in resolving the issue of whether the child's conduct conformed to the child's standard. Thus, a jury must be instructed that the violation of a relevant statute is evidence of negligence only if the jury first finds a reasonable child of the same age, intelligence, maturity and experience would not have acted in violation of a relevant statute under the same circumstances. ...
[...]
"Kurowsky also argues final Instruction no. 4 is an incorrect statement of the law because it erroneously advised the jury Deutsch could assume, until notice to the contrary, that Kurowsky would not violate a traffic statute applicable to bicyclists. ... The instruction read, in relevant part:
"'One lawfully operating a bicycle at the time and place in question is not bound to anticipate that any other bicyclist would fail to obey the law. ... In the absence of notice or knowledge to the contrary, a bicyclist may assume that other bicyclists will obey the law, and is not bound to anticipate, or guard against any sudden statutory violation ... on the part of another bicyclist.' ...
"Because of the special child standard of reasonable care, an adult bicyclist may not assume a child bicyclist will obey the law, i.e., the statute, because a child has no such duty merely because the statute exists. That assumption is valid only with reference to adult bicyclists who, in the exercise of reasonable care, must conform their conduct to law, i.e., the statute. A bicyclist of Kurowsky's age does not necessarily have this obligation. He must only conform his conduct to that care which would ordinarily be exercised by a child of the same age, experience, intelligence and educational level. Therefore, once an adult bicyclist has notice or knowledge of a child bicyclist, the assumption described ... is no longer valid. While the instruction may attempt to state this caveat by the phrase, '[i]n the absence of notice or knowledge to the contrary,' the phrase refers to notice or knowledge of a violation of statute rather than notice or knowledge of a child bicyclist. ...
"It also suffers another defect. Because the instruction is party neutral, it allowed the jury to infer that if Kurowsky was not operating his bicycle in accordance with the law, i.e., the statute, he was not entitled to rely upon Deutsch obeying the law in operating her bicycle, and, therefore, was bound to anticipate, or guard against her sudden statutory violation. Again, Kurowsky had no per se duty to operate his bicycle in accordance with any statute."
[Please click here to read the opinion on this case issued by the Supreme Court of Indiana.]
Disclaimer