402.Standard of Care for Minors
[Name of plaintiff/defendant] is a child who was years old at the
time of the incident. Children are not held to the same standards of
behavior as adults. A child is required to use the amount of care that a
reasonably careful child of the same age, intelligence, knowledge, and
experience would use in that same situation.
New September 2003
Sources and Authority
• “Children are judged by a special subjective standard. . . . They are only
required to exercise that degree of care expected of children of like age,
experience and intelligence.” (Daun v. Truax (1961) 56 Cal.2d 647, 654 [16
Cal.Rptr. 351, 365 P.2d 407].)
• If the negligence is negligence per se, violation of a statute will create a
presumption of negligence that “may be rebutted by a showing that the child, in
spite of the violation of the statute, exercised the care that children of his
maturity, intelligence and capacity ordinarily exercise under similar
circumstances.” (Daun, supra, 56 Cal.2d at p. 655.)
• Restatement Second of Torts, section 283A, provides: “If the actor is a child,
the standard of conduct to which he must conform to avoid being negligent is
that of a reasonable person of like age, intelligence, and experience under like
• The standard of care for minors is not the standard of an “average” child of the
same age; the standard is subjective, based on the conduct of a child of the
same age, intelligence, and experience as the minor plaintiff or defendant.
(Cummings v. County of Los Angeles (1961) 56 Cal.2d 258, 263 [14 Cal.Rptr.
668, 363 P.2d 900].)
• An exception to this reduced standard of care may be found if the minor was
engaging in an adult activity, such as driving. (Prichard v. Veterans Cab Co.
(1965) 63 Cal.2d 727, 732 [47 Cal.Rptr. 904, 408 P.2d 360]; Neudeck v.
Bransten (1965) 233 Cal.App.2d 17, 21 [43 Cal.Rptr. 250]; see also Rest.2d
Torts, § 283A, com. c.)
• Children under the age of ﬁve are incapable of contributory negligence as a
matter of law. (Christian v. Goodwin (1961) 188 Cal.App.2d 650, 655 [10
6 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 998–1000
California Tort Guide (Cont.Ed.Bar 3d ed.) § 1.19
1 Levy et al., California Torts, Ch. 1, Negligence: Duty and Breach, § 1.31