Indiana Appellate Comments

by Steven D. Groth and Curtis T. Jones

           Since 1916, courts have been discussing in dicta or predicting what presumption should be accorded to Indiana children ages 7 to 14 who are claimed to have contributed to negligence alleged in civil cases. In Clay City Consolidated School Corp. v. Timberman, Cause No. 11S04-0904-CV-134, the Indiana Supreme Court unanimously ended the speculation in this wrongful death case.

            Instances of Negligence. If the issue is whether a child between the ages of 7 and 14 was negligent, the Indiana Supreme Court has adopted the Restatement (Second) of Torts § 283A (1965) for the standard of care to be used: such children are “required to exercise due care for his or her own safety under the circumstances and that the care required is to be measured by that ordinarily exercised under similar circumstances by children of the same age, knowledge, judgment, and experience.” citing Creasy v. Rusk, 730 N.E.2d 659, 662 (Ind. 2000) and Schultz v. Ford Motor Co., 857 N.E.2d 977, 980 n.2 (Ind. 2006).

            Burden of Proof for Contributory Negligence Defense: If the  question is what is the defendant's burden to prove that a child between the ages of 7 and 14 was contributorily negligent, then the  defendant  must overcome a rebuttable evidentiary presumption that the child is incapable of contributory negligence. The Court’s opinion in Timberman recognized the “presumption,” yet emphasized the “rebuttable” nature of that presumption. The Court stated that “this presumption in favor of youthful alleged victims is a very modest benefit at best” and “will not preclude summary judgment for the alleged tortfeasor on grounds of contributory negligence in the appropriate case.” 

            The Court further emphasized: the evidentiary “presumption is rebuttable such that the child nevertheless ‘may be guilty thereof.’”  Despite  expressly  recognizing this presumption, the Court's holding in Timberman sets the procedural limits for the presumption, and outlines how alleged tortfeasors  may prove contributory negligence against a child between the age of 7 and 14,  by offering evidence that the child was accountable, based on his or her age, mental capacity, intelligence, and experience.