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§50.1 Generally

The Case : Bailey v. Williams, 346 S.W.2d 285 (Tenn. Ct. App. 1960).

The Basic Facts : Infant brought personal injury action against seven year-old who threw wire at plaintiff.

The Bottom Line:

  • "The rule with respect to a minor's capacity for negligence is that the question is to be judged in the light of his age, ability, intelligence, training and experience and the complexity of the danger with which he is confronted. Unless, under all these relevant circumstances, he has failed to exercise such care and prudence as may be expected of one of his years he is not guilty of negligence." 346 S.W.2d at 287 (citations omitted).

  • "Between the ages of seven and fourteen the presumption is that the child is incapable of negligence but this presumption is non-conclusive and may be rebutted by evidence of capacity." Id. (citations omitted).
  • "In the Hadley case this Court in an opinion by Judge Swepston, now Mr. Justice Swepston, said:
    We understand the cases to hold that where a child is 6 years old or under, Wells v. McNutt, [189 S.W. 365], and Taylor v. Robertson, 12 Tenn.App. 320, or where he is 7 to 14 years old, West v. Southern Ry. Co., [100 S.W.2d 1004], there is a prima facie presumption he is not capable of negligence, but that the evidence may show him to be capable of negligence and if there by any material evidence of capacity, it is for the jury to decide; whereas if a child is over 14 years old there is a prima facie presumption that he is capable of negligence the same as a grown person, but if there be any material evidence he is incapable, it is a jury question."
    Id . at 287-88.
  • "Under the cases cited the question whether the presumption of incapacity has been overcome by proof is generally one of fact for the jury. Where, however, the proof is undisputed and so clear that only one inference can reasonably be drawn therefrom, whether the child had capacity to exercise and exercised such care as might reasonably be expected of a child of his age, capacity and experience in the given situation becomes a question of law for the court. [38 Am. Jur. 1066, Negligence, § 357]." Id. at 288.

Other Sources of Note: Mitchell v. Johnson , No. E2001-01798-COA-R3-CV, 2002 WL 464810 (Tenn. Ct. App. Mar. 27, 2002) (while the rule espoused in Bailey is applicable to general negligence cases involving minors, a minor driving a motor vehicle on a street or highway of this state is held to the same standard of care applicable to adults). See also, Black by Black v. Quinn, 646 S.W.2d 437 (Tenn. Ct. App. 1982). Bailey was cited with approval in Doe v. Mama Taori's Premium Pizza, Inc., No. M1998-00992-COA-R9-CV, 2001 WL 327906 (Tenn. App. April 5, 2001).

Recent Cases: Durham v. Noble, No. M2011-01579-COA-R3-CV, 2012 WL 3041296 (Tenn. Ct. App. July 25, 2012) (affirming trial court’s finding that injured plaintiff was capable of negligence based on evidence of plaintiff’s age, mental faculties, past experience riding his bike alone in his neighborhood, and specific instructions from his parents to stop at the stop sign where the accident occurred).

After an accident, many injury victims and their families want more information on the accident and their legal rights. Consequently, many of them have found their way to these pages. While we are happy you are here, please understand Day on Torts: Leading Cases in Tennessee Tort Law was written to be a quick, invaluable reference for Tennessee tort lawyers. While the book provides the leading case for more than 300 tort law subjects and thousands of related case citations, it is not a substitute for personalized legal advice from a qualified lawyer.

Rather than researching these legal issues alone, we urge you to contact one of our award-winning lawyers who can sit down with you, review your case, answer your questions and clearly explain your rights and your options in a no-cost, no-obligation consultation. Our experienced attorneys handle all personal injury and wrongful death cases on a contingency basis, so we only get paid if we win. If for any reason you are unable to come to our office, we will gladly come to you.

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The foregoing is an excerpt from Day on Torts: Leading Cases in Tennessee Tort Law, published by John A. Day, Civil Trial Specialist, Fellow in the American College of Trial Lawyers, recipient of Best Lawyers in America recognition, Martindale-Hubbell AV® Preeminent™ rated attorney, and Top 100 Tennessee Mid-South Super Lawyers designee. Read John’s full bio here.

To order a copy of the book, visit www.dayontortsbook.com. John also blogs regularly on key issues for tort lawyers. To subscribe to the Day on Torts blog, visit www.dayontorts.com.

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