316 N.W.2d 869
-Seven year old boy goes onto neighbor's property, plays with gasoline can, and is lit in a blaze of glory!
-Is the child negligent for the harm that was caused by the neighbor's keeping gasoline in their storage shed?
-Trial court found for the D's. Here, the Appellate court affirms.
-Here the child was negligent and the D's are not liable.
-In applying special negligence standard of care for children, jury must first subjectively determine capacity of particular child to perceive and avoid specific risk involved, based on evidence of child's age, intelligence and experience, and then must objectively determine how a reasonable child of like capacity would have acted under similar circumstances.
-Particular child's capacity for negligence may be determined by court as matter of law only if child is so young or evidence of incapacity so overwhelming that reasonable minds could not differ on that issue.
(1) there are no presumptions regarding capacity of children for negligence or contributory negligence, rather, question of particular child's capacity is an issue of fact to be determined on the basis of evidence of the child's age, intelligence and experience; (2) evidence was sufficient to submit question of child's contributory negligence to jury; and (3) evidence supported finding that although gasoline cans were not painted red and clearly marked as required by statute, that fact bore no causal relationship to child's injuries, and therefore failure of trial court to allow mother's attorney to amend a petition to add an allegation that neighbors violated the statute was not improper.