Bol v. Campbell

2016 UT App 58
T HE U TAH COURT OF A PPEALS
ELIZABETH BOL,
Appellant,
v.
R ICHARD J. C AMPBELL,
Appellee.
Memorandum Decision
No. 20141133-CA
Filed March 24, 2016
Third District Court, West Jordan Department
The Honorable Barry G. Lawrence
No. 130402403
Leonard E. McGee and Peter R. Mifflin, Attorneys
for Appellant
Julianne P. Blanch, Attorney for Appellee
JUDGE GREGORY K. O RME authored this Memorandum Decision,
in which J UDGE J. F REDERIC VOROS JR . and S ENIOR JUDGE R USSELL
W. BENCH concurred.1
ORME, Judge:
¶1 	Elizabeth Bol, acting on behalf of her minor child (Child),
brought 	suit 	against 	Richard 	J. 	Campbell 	because 	of 	his
involvement in a traffic accident in which Child was injured. Bol
alleged that Campbell’s negligence was the predominant cause
of the accident. Following trial, a jury concluded that Child was
eighty percent responsible for his own injuries, thus denying Bol
the 	relief 	she 	sought. 	See 	Utah 	Code 	Ann. 	§ 	78B-5-818(2)
1. Senior Judge Russell W. Bench sat by special assignment as
authorized by law. See generally Utah R. Jud. Admin. 11-201(6).

Bol v. Campbell
20141133-CA 	2 	2016 UT App 58
(LexisNexis 2012). 	Bol raises various challenges to the jury
instructions and to the adequacy of the evidence Campbell
introduced to establish Child’s standard of care, including the
lack of expert testimony. Because we conclude the trial court did
not err, we affirm.
¶2 	Child, a Sudanese refugee, was raised in a United Nations
refugee camp in Kenya. In the camp, there was no running
water, electricity, or vehicular traffic nor were there paved roads
or traffic lights. When Child was twelve, his family was granted
residency in the United States and relocated to Utah.
¶3 	Some four months later, after leaving the local public
library where Child was studying with his older sister, Child
came to a road he needed to cross in order to catch a bus. It was
dark, and Child was wearing dark clothing while riding a black
bicycle that lacked reflective tape or lights, in violation of Utah
law. See Utah Code Ann. § 41-6a-1114 (LexisNexis 2010). On
cross-examination during trial, Bol acknowledged that Child had
been taught “that it was dangerous to cross the road in front of a
car because a moving vehicle is dangerous.” Child testified at
trial that he was aware of the danger posed by moving cars and
that he knew to look both ways before crossing the street, but he
also testified that on this occasion he elected to cross the street
without looking because he saw his older sister look both ways
before entering the roadway. Child believed he would be safe
because she had looked both ways, and he was confident she
would not cross unless it was safe to do so. Unfortunately,
Child’s assumption was incorrect, and Campbell’s car struck
Child.
¶4 	Bol sued Campbell, alleging that Campbell’s negligence
caused 	the 	accident. 	Without 	disputing 	Child’s 	claimed
damages, Campbell alleged that “[Child]’s comparative fault
was the principal cause of the collision.” At trial, the jury was
presented 	with 	testimony 	from 	Child, 	Bol, 	Child’s 	sister,
Campbell, a bystander, two accident reconstructionists, a police
officer, 	and 	Child’s 	doctor. 	Child 	testified 	as 	to 	his 	age,

Bol v. Campbell
20141133-CA 	3 	2016 UT App 58
education, prior experience with automobile traffic, and lack of
knowledge of Utah traffic laws and ordinances. He also gave an
account of how the accident occurred and the extent of his
injuries.
¶5 	At the close of Campbell’s case, Bol moved for a directed
verdict on the issue of comparative fault as raised by Campbell,
arguing that Campbell “had failed to present evidence regarding
the scope of [Child’s] duty of care.” Thus, Bol argued, the
question of comparative fault should not be presented to the
jury. The trial court denied Bol’s motion.
¶6 	The jury thereafter received instruction on the principles
of comparative fault; the requirements of various traffic safety
statutes 	and 	ordinances, 	including 	an 	explanation 	that 	the
violation of those statutes could be considered evidence of
negligence; and the proper standard of care against which the
conduct of a minor in Child’s age group should be measured in
determining negligence. Following a jury verdict that Child was
eighty 	percent 	responsible 	and 	Campbell 	twenty 	percent
responsible 	for 	the 	accident, 	Bol 	moved 	for 	a 	judgment
notwithstanding the verdict. The trial court denied Bol’s motion.
Bol then brought this appeal.
¶7 	Bol 	first 	claims 	that 	the 	jury 	instruction 	on 	the
comparative fault of children in negligence cases was erroneous
because Campbell did not present evidence, apart from the
cross-examination of Child, establishing the applicable standard
of care. “Claims of erroneous jury instructions present questions
of law that we review for correctness,” without deference to the
trial court. State v. Jeffs, 2010 UT 49, ¶ 16, 243 P.3d 1250.
¶8 	In Utah, evidence of a statutory violation may be used as
prima facie evidence of negligence, “‘subject to justification or
excuse if the evidence is such that [a justification or excuse]
reasonably could be found.’” Hansen v. Eyre, 2005 UT 29, ¶ 12
n.4, 116 P.3d 290 (quoting Child v. Gonda, 972 P.2d 425, 432 (Utah
1998)). The Utah Supreme Court, in Morby v. Rogers, 252 P.2d 231

Bol v. Campbell
20141133-CA 	4 	2016 UT App 58
(Utah 1953), considered whether this rule ought to apply to
children between the ages of seven and fourteen.2 Id. at 233–35.
After extensively reviewing the subject, the Court concluded that
“[i]f the violation of a statute by a child is found to evidence less
care than that which ordinarily could be expected of a child of
the same age, intelligence, knowledge, and experience, he could
be held contributorily negligent.” Id. at 235.3 Thus, a child may
2. The applicable standard of care for a child is governed largely
by the age of the child. See Nelson v. Arrowhead Freight Lines, 104
P.2d 225, 228 (Utah 1940).
Ordinarily a child under seven years of age is
conclusively presumed not guilty of contributory
negligence. 	Between 	the 	ages 	of 	seven 	and
fourteen, in the absence of [a] showing to the
contrary, [a child] is generally assumed not to have
the same consciousness of danger and the same
judgment in avoiding it as an adult. Above the age
of fourteen, in the absence of a showing to the
contrary, [a child] is generally charged with having
attained that development which imposes upon
him the same degree of care as an adult.
Id. While not at issue in this case, there is some doubt as to the
state of the law regarding children under the age of seven.
Compare 	Mann 	v. 	Fairbourn, 	366 	P.2d 	603, 	606 	(Utah 	1961)
(concluding that the Nelson court’s pronouncement that children
“under seven years of age [are] conclusively presumed not
guilty 	of 	contributory 	negligence” 	is 	dicta), 	with 	Kilpack 	v.
Wignall, 604 P.2d 462, 465–66 (Utah 1979) (recognizing that “a
young 	child 	is 	generally 	presumed 	to 	be 	incapable 	of
contributory negligence,” relying on the language of Nelson).
3. Although Morby applies the rule in the context of contributory
negligence—which is no longer the law of this state, see Utah
Code Ann. § 78B-5-818(1) (LexisNexis 2012)—Morby remains
precedential on the use of a proven violation of a civil statute as
(continued…)

Bol v. Campbell
20141133-CA 	5 	2016 UT App 58
be found comparatively negligent for the unexcused violation of
a statute if the child “evidence[d] less care than that which
ordinarily 	could 	be 	expected 	of 	a 	child 	of 	the 	same 	age,
intelligence, knowledge, and experience.” Id.
¶9 	This 	is 	so 	because 	any 	other 	rule 	might 	work 	to
undermine the protected status of children under negligence
law.4 In short, we agree with Bol that the proper standard for the
trial court to apply, and with which to instruct the jury, was that
(…continued)
evidence of juvenile negligence in the context of contributory
negligence’s descendant, comparative negligence. See, e.g., Meese
v. 	Brigham 	Young 	Univ., 	639 	P.2d 	720, 	725–26 	(Utah 	1981)
(explaining that various aspects of the contributory negligence
doctrine 	apply 	in 	the 	context 	of 	comparative 	negligence);
Critchley v. Vance, 575 P.2d 187, 189 (Utah 1978) (noting that
where “contributory negligence was [once] a complete defense”
to 	negligence 	liability, 	the 	effect 	of 	Utah’s 	comparative
negligence law is that “contributory negligence is now only a
partial defense”).
4. Ordinarily, a child is held, as in the instant case, to a standard
of care that takes into account his or her age, intelligence,
knowledge, and experience. Morby v. Rogers, 252 P.2d 231, 235
(Utah 1953). Where the child is engaged in an adult activity,
however, the child is held to an adult standard. See Summerill v.
Shipley, 890 P.2d 1042, 1044–45 (Utah Ct. App. 1995). Despite
Bol’s argument to the contrary, it is clear that neither Campbell
nor the trial court suggested or argued that bike riding, even at
night, is an adult activity such that Child should be held to the
adult standard of care. Rather, the trial court’s reference to an
“objective standard” is a reflection of the fact that once the jury
evaluates 	a 	child’s 	subjective 	capacity, 	it 	must 	next 	decide
whether the child’s decisions made in light of that capacity were
objectively reasonable. See infra ¶ 10.

Bol v. Campbell
20141133-CA 	6 	2016 UT App 58
of a partly subjective standard based on the level of care that
“ordinarily 	could 	be 	expected 	of 	a 	child 	of 	the 	same 	age,
intelligence, knowledge, and experience.” Morby, 252 P.2d at 235.
The closer question is how specific courts must be in considering
a particular child’s experience.
¶10 	To establish the appropriate standard of care applicable to
a child, a two-part inquiry is necessary. First, the jury must
determine whether the child had the subjective capacity—given
his or her “age, intelligence, knowledge, and experience,” id.—to
effectively avoid the risk at issue, see Peterson v. Taylor, 316
N.W.2d 869, 873 (Iowa 1982); 57A Am. Jur. 2d Negligence § 183
(2004). 	It 	necessarily 	follows 	that 	“there 	must 	be 	evidence
adduced at trial concerning the child’s age, intelligence and
experience so that the jury may determine the child’s [subjective]
capacity, if any, to perceive and avoid the risk.” Peterson, 316
N.W.2d at 873. “Likewise to be taken into account are the
circumstances 	under 	which 	the 	child 	has 	lived, 	and 	his
experience in encountering particular hazards, or the education
he has received concerning them.” Restatement (Second) of Torts
§ 283A cmt. b (Am. Law Inst. 1965). Second, having considered
the subjective factors, the jury must objectively determine “how
. . . a reasonable child of like capacity [would] have acted under
like circumstances.” 57A Am. Jur. 2d Negligence § 183 (2004)
(citing Peterson, 316 N.W.2d at 873). This is because “[i]f the child
is of sufficient age, intelligence, and experience to understand
the risks of a given situation, he is required to exercise such
prudence in protecting himself . . . as is common to children
similarly qualified.” Restatement (Second) of Torts § 283A cmt. b
(Am. Law Inst. 1965). Thus, “[t]he particular child in question
can be found negligent only if his or her actions fall short of
what 	may 	reasonably 	be 	expected 	of 	children 	of 	similar
capacity.” 	57A 	Am. 	Jur. 	2d 	Negligence 	§ 	183 	(2004) 	(citing
Peterson, 316 N.W.2d at 873).
¶11 	Although Bol is correct that Campbell did not regard it as
his burden to establish Child’s age, intelligence, knowledge, and

Bol v. Campbell
20141133-CA 	7 	2016 UT App 58
experience 	under 	the 	circumstances, 	the 	jury 	had 	before 	it
extensive evidence of Child’s “age, intelligence and experience”
and was thus well-situated to analyze Child’s “capacity, if any,
to perceive and avoid the risk” of harm occasioned by crossing
the street into oncoming traffic. See Peterson, 316 N.W.2d at 873.
Although “the circumstances under which [Child] has lived, and
his experience in encountering particular hazards” could have
left him ill-prepared to navigate the busy streets of Salt Lake
City, Child instead testified that notwithstanding his limited
experience in the United States at the time of the accident, he
was both aware of the danger posed by moving automobiles and
able to guard against that danger by watching for cars before
entering the street. See Restatement (Second) of Torts § 283A cmt.
b. (Am. Law Inst. 1965). Thus, Child had sufficient experience
“to understand the risks of [the] given situation,” and given that
experience, it was not unfair that the jury was allowed to
consider his role and responsibility in the accident as well as
whether 	“he 	[was] 	required 	to 	exercise 	such 	prudence 	in
protecting himself.” See id.
¶12 	Moreover, during the course of the trial, Bol affirmed that
she had discussed with Child the dangers of moving vehicles as
well as the importance of safely crossing the road, including the
need to use crosswalks while doing so. She also indicated that
she believed that Child fully understood their discussion and
that he was aware of the danger posed by moving vehicles.
Child also admitted that he knew it was important to look both
ways before crossing. He explained that he did not do so on this
occasion because he had seen his sister look both ways before
crossing and he figured it was safe to follow her lead. In sum,
Bol’s evidence was sufficient to show that Child, even given his
subjective 	capacity—his 	“age, 	intelligence, 	knowledge, 	and
experience”—fully 	realized 	that 	oncoming 	traffic 	was
dangerous, warranting safety precautions known to Child, such
as looking both ways before entering the street, even though he
was not up to speed on the bicycle safety requirements of section
41-6a-1114 of the Utah Code with which his bicycle was not in

Bol v. Campbell
20141133-CA 	8 	2016 UT App 58
compliance. And there was ample evidence from which the jury
could conclude that it was objectively unreasonable for Child not
to check for traffic before entering the roadway.5 This evidence
was more than sufficient for the jury to conclude that Child’s
unreasonable behavior made him primarily responsible for his
own injuries.6
¶13 	Although Bol concedes that “[t]he trial court correctly
instructed the jury on the . . . standard of care applicable to
[Child],” she claims that the jury instructions conflicted with one
another and thus confused the jury such that it was left to devise
its own standard of care to apply to Child. “[A]lthough we
5. Bol also seems to argue that the “knowledge” element of the
duty-of-care 	standard 	applicable 	to 	children 	requires 	actual
knowledge of the statute that the child purportedly violated. But
regardless of a person’s knowledge of the existence of a safety
statute, “[i]t is a general rule of Utah law that violation of a
safety standard set by statute or ordinance constitutes prima
facie evidence of negligence.” Ryan v. Gold Cross Servs., Inc., 903
P.2d 423, 426 (Utah 1995). See also David G. Owen, Proving
Negligence in Products Liability Litigation, 36 Ariz. St. L.J. 1003,
1010 	(2004) 	(“[L]iability 	flows 	merely 	from 	the 	defendant’s
breach of statute rather than from demonstrative proof of how
the defendant was at fault. That is, a plaintiff may establish a
breach of the duty of care without specific evidence showing
how the defendant’s actions were unreasonable, in how they
foreseeably exposed the plaintiff to an undue risk of harm.”).
6. Bol’s own expert acknowledged that “[i]f [Child] never looked
before crossing he’s got a lot of contribution to this accident” and
conceded further that Child’s “failure to look could be a cause of
the accident.” And even Bol’s counsel admitted at trial that Child
was somewhat negligent, stating, “I think it would be fair and
reasonable for you to find that [Child] has some responsibility
for causing this accident.”

Bol v. Campbell
20141133-CA 	9 	2016 UT App 58
review 	a 	court’s ruling 	on 	a 	proposed 	jury 	instruction 	for
correctness, we look at the jury instructions ‘in their entirety and
will affirm when the instructions taken as a whole fairly instruct
the jury on the law applicable to the case.’” State v. Maestas, 2012
UT 46, ¶ 148, 299 P.3d 892 (quoting State v. Robertson, 932 P.2d
1219, 1231 (Utah 1997)) (internal citation omitted).
¶14 	In light of Bol’s concession that the key jury instruction
correctly 	stated 	the 	applicable 	law, 	and 	our 	previous
determination that the trial court properly instructed the jury as
to 	both 	comparative 	negligence 	and 	Child’s 	violations 	of
applicable traffic laws, see supra ¶¶ 9–12, we conclude that the
trial court both properly denied Bol’s motion for a directed
verdict and properly sent the comparative negligence question
to the jury.
¶15 	Finally, 	Bol 	suggests 	that 	Campbell 	may 	have 	been
required to introduce expert testimony as to how a reasonable
child 	raised 	in 	Child’s 	actual 	circumstances—in 	an 	African
refugee camp with little or no automobile traffic—would act
crossing an American street at night. But this suggestion is not
developed much beyond the mere making of it. Bol observes that
there 	are 	various 	standards 	of 	care 	applicable 	to 	doctors,
engineers, and other professionals. She then points out that
“[t]hese particular standards of care . . . typically also require
expert testimony.” We are apparently left to infer that a similar
rule should apply to a child’s standard of care. This argument is
inadequately briefed, and we decline to address it further. Smith
v. Smith, 1999 UT App 370, ¶ 8, 995 P.2d 14 (“An issue is
inadequately briefed when ‘the overall analysis of the issue is so
lacking as to shift the burden of research and argument to the
reviewing court.’”) (quoting State v. Thomas, 961 P.2d 299, 305
(Utah 1998)).
¶16 	Affirmed.