THE STANDARD OF CARE FOR CHILDREN ENGAGED IN ADULT ACTIVITIES: NOT EXACTLY CHILD'S PLAY.

• Author: Bildfell, Connor

INTRODUCTION

Throughout the common law world, the default standard of care is that of a reasonable person in the circumstances. This standard is objective in that it makes no allowance for the subjective characteristics--such as age, intelligence, and experience--of the particular individual whose conduct is being measured. Yet this objective standard is not applied universally. Recognizing that children, due to their incomplete development, typically have an impaired capacity to appreciate certain risks and exercise the care necessary to avoid those risks, US and Canadian courts have typically relaxed the standard of care expected of children to account for the particular child's age, intelligence, and experience. In this way, the objective "reasonable person" test takes on a decidedly more subjective character.

But as developed in this article, in the mid-20th century, as increasing numbers of teenagers got behind the wheel of a car and were involved in serious accidents, and as road safety provisions referring to "every person" were enacted, US courts began to question the wisdom of applying a relaxed standard of care in the context of motor vehicle accident cases. As a result, US courts developed an "adult activity exception" whereby children who engage in "adult activities" such as driving a car forfeit the benefit of having their conduct measured in light of their age, intelligence, and experience. Instead, they are held to the standard of a reasonable adult. This exception has since taken root in Canada.

The purpose of this article is to track the evolution of, and critically assess, the adult activity exception, drawing on both US and Canadian jurisprudence and academic commentary. In doing so, this article fills a gap in the Canadian literature, providing the first detailed treatment of the adult activity exception in Canada. It argues that the exception has been applied--or not been applied--inconsistently and in sometimes confusing ways, leading to outcomes that are difficult to reconcile. Further, this article demonstrates that Canadian courts have yet to fully grapple with a number of key issues raised by the exception, not least of which being that there is no clear test for when the exception applies. The general rule of thumb appears to be that if the child was operating a motorized vehicle, then the exception will apply, but this rule of thumb is not absolute. Ultimately, this article argues that while the adult activity exception pursues important objectives, it is not free from difficulty, and if it is to maintain its place in Canadian law, then courts must grapple more deeply with the nature, scope, and conceptual underpinnings of the exception.

This article proceeds in six parts. Part I briefly describes the yardstick by which courts measure the conduct of most individuals: the reasonable person standard. The next three parts examine how, where a child's conduct is being measured, this standard may be ousted, relaxed, or maintained, depending on the child's stage of development and the activity in which the child engages. Part II outlines the exclusion of liability for children of tender years. Part III explores the default standard of care expected of children--the "relaxed" standard, which asks what a child of the same age, intelligence, and experience would have done in the circumstances. This sets the stage for Part IV, which tracks the evolution of, and critically assesses, the adult activity exception, drawing on both US and Canadian jurisprudence and academic commentary. Part V then critically examines the main justifications that have been offered for the exception. Finally, Part VI offers a brief conclusion.

1. THE REASONABLE PERSON STANDARD

   To succeed in a negligence suit, a plaintiff must establish four elements: (1) the defendant owed the plaintiff a duty of care; (2) the defendant's behaviour breached the standard of care; (3) the plaintiff sustained damage; and (4) the damage was caused, in fact and in law, by the defendant's breach. (1) The second element--the standard of care--is "the measure by which the discharge of the duty owed by one person to another is determined" (2) or, in other words, "the content of the duty". (3)

   The standard of care expected of most individuals is framed in terms of what a reasonable person would have done in the circumstances. This "reasonable person" has been described as a person of "ordinary prudence" (4) and of "normal intelligence who makes prudence a guide to his conduct." (5) This standard is objective insofar as it "eliminates the personal equation and is independent of the idiosyncrasies of the particular person whose conduct is in question." (6)

   Given the strict objectivity of the reasonable person standard, substandard intelligence, skill, or experience is generally no excuse. (7) The unforgiving nature of this rule is justified by the need for a consistent and predictable community standard. Asking merely whether a person did his or her (perhaps incompetent) best would result in a test that is "co-extensive with the judgment of each individual, which would be as variable as the length of the foot of each individual", leaving "so vague a line as to afford no rule at all, the degree of judgment belonging to each individual being infinitely various". (8) On the other hand, where the person whose conduct is being measured has heightened intelligence, skill, or experience, the standard of care is raised. (9) In this way, the reasonable person standard operates as a floor, not a ceiling.

   Although it often goes unmentioned, the reasonable person is in fact not just a reasonable person, but a reasonable adult. This is most evident in the jurisprudence from an earlier era, which often referred to the reasonable man. (10) The famous description of the reasonable man as "the man in the Clapham omnibus" (11) or "the man who takes the magazines at home, and in the evening pushes the lawn mower in his shirt sleeves" (12) leaves little doubt as to the adult status of this hypothetical creature.

   But the reasonable person standard does not always apply to children. As we will see in the next three sections of this article, depending on their stage of development and the activity in which they are engaged, children may: (1) be shielded from liability in negligence (and contributory negligence) altogether; (2) be held to the standard of a child of the same age, intelligence, and experience; or (3) be held to the standard of a reasonable adult.

2. THE EXCLUSION OF LIABILITY FOR CHILDREN OF TENDER YEARS

   When determining the applicable standard of care, the individual's stage of development is significant. For the purposes of negligence law, there are three main developmental groups: (1) children of tender years; (2) children beyond tender years; and (3) adults.

   Beginning with the first category, children of tender years are shielded from liability in negligence (and contributory negligence) altogether. (13) The rationale for this immunity is grounded in a recognition of incompetency: at such an early stage of development, children of tender years lack the capacity to appreciate certain risks and exercise the care necessary to avoid those risks. (14) Given their incapacity, they cannot rightly be held responsible for their actions.

   The point at which a child passes from "tender years" to "beyond tender years" is somewhat fluid. One Canadian court has suggested that the threshold at which children are often expected to begin assuming responsibility for their actions is seven years old, (15) though children below that age have been found either negligent or contributorily negligent. (16) Six may be a more accurate estimate of the approximate age at which children may be found negligent. However, the focus on age is somewhat misleading, as age is not the determinative factor; rather, it is the child's capacity to appreciate risk. (17) This inquiry is subjective and fact specific. (18)

   The immunity afforded to children of tender years is not unlike that afforded to persons with certain mental disabilities, at least to the extent that either condition--early youth or mental disability--may leave the individual incapable of meeting a community standard. (19) According to one line of Canadian jurisprudence, where a mental disability prevents a person from understanding his or her duty to exercise reasonable care or to discharge that duty, the individual will be immune from responsibility in negligence. (20)

   If a child is found to be incapable of being held responsible in negligence, then the inquiry stops there. But if the child is found to be capable of negligence at law (i.e., the child has moved past the stage of "tender years"), then the court must determine the applicable standard of care. As we will see, the default rule is that children are held to a relaxed standard of care that takes into account the particular child's age, intelligence, and experience.

3. THE RELAXED STANDARD OF CARE: THE

   ALLOWANCE FOR THE CHILD'S AGE, INTELLIGENCE, AND EXPERIENCE

   1. AMERICAN CASE LAW

      In the early 20th century, before automobiles and other motorized vehicles became widely available to minors, US courts began developing a relaxed standard of care for children. (21) A leading case in this line of jurisprudence is the Wisconsin Supreme Court's 1911 decision in Briese v Maechtle, (22) which arose out of a schoolyard collision that occurred while the infant defendant was playing" [t]he venerable and exhilarating game of tag". (23) The Court stated that while children may be held liable in negligence, there is a "marked difference" between the standard of care expected of an adult and that expected of a child. (24) It explained that "a child is only required to exercise that degree of care which the great mass of children of the same age ordinarily exercise under the same circumstances, taking into account the experience, capacity, and understanding of the...