M Civ JI 12.07 Violation of Statute or Ordinance by Minor [ No Instruction Prepared ]

Comment

No instruction on the violation of a statute or ordinance by a minor has been prepared by the committee because the Michigan cases have not distinguished between minors’ and adults’ violations of statutes, ordinances, rules and regulations. Ertzbischoff v Smith, 286 Mich 306; 282 NW 159 (1938); Strong v Kittenger, 300 Mich 126; 1 NW2d 479 (1942); Brown v Tanner, 281 Mich 150; 274 NW 744 (1937); Rotter v Detroit United R Co, 205 Mich 212; 171 NW 514 (1919). Where a minor is engaged in an activity for which adult qualifications are required, such as driving an automobile, the general rule is that the standard to be applied is the same as for an adult. Restatement (Second) of Torts §283 A, at 14. The Michigan Supreme Court dealt with this in Constantino v Wolverine Insurance Co, 407 Mich 896; 284 NW2d 463 (1979). Reversing an unpublished Court of Appeals opinion, the Supreme Court said that “the instruction that the appellee driver was not held to the same standard of conduct as an adult was erroneous. When a minor engages in a dangerous and adult activity, e.g., driving an automobile, he is charged with the same standard of conduct as an adult.”

No cases have been found in Michigan which discuss the question of the effect of an actor’s minority on the issue of his or her statutory or ordinance violation where primary negligence is involved. In other jurisdictions, apparently the situation is the same. Anno: Child’s violation of statute or ordinance as affecting question of his negligence or contributory negligence, 174 ALR 1170, at 1198–1200.

The majority of jurisdictions considering the effect of a statutory or ordinance violation by a minor upon the question of his or her contributory negligence have held that the minor’s age, mental capacity and experience must be considered in determining whether the violation of a statute or ordinance constitutes contributory negligence. That is, if the minor’s conduct is reasonable for persons of like age, mental capacity and experience, then the jury should be instructed that, in determining whether the minor violated the statute or ordinance, they should consider whether he or she had the mental and physical capacity to comply with it. 174 ALR 1170, at 1174–1178; 7A Am Jur 2d, Automobiles & Highway Traffic, §498, at 725.

Restatement (Second) of Torts takes the view that minority is to be considered in determining whether a particular violation will be excused. §288 A (2)(a), at 32–33.

Where a child is under the age of seven, the issue of negligence or contributory negligence should not be submitted to the jury, as he or she cannot be guilty of negligence, Queen Insurance Co v Hammond, 374 Mich 655; 132 NW2d 792 (1965), or contributory negligence, Baker v Alt, 374 Mich 492; 132 NW2d 614 (1965).

History

M Civ JI 12.07 was SJI 12.09.