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Oregon Judicial Department Appellate Court Opinions

FILED: March 17, 2004 IN THE COURT OF APPEALS OF THE STATE OF OREGON TERRI L. HUDSON-CONNOR, formerly guardian ad litem for Sara Hudson, aka Sara Connor, Plaintiff, and SARA HUDSON, aka Sara Connor, Appellant, v. CAROLINE PUTNEY, guardian ad litem for Reilly Burdick, a minor, Respondent. 01-CV-0158-AB; A119317 Appeal from Circuit Court, Deschutes County. Alta J. Brady, Judge. Argued and submitted January 14, 2004. Marianne Dugan argued the cause for appellant. With her on the briefs was Facaros & Dugan. William E. Flinn argued the cause for respondent. With him on the opening brief were Gary R. Johnson and Hurley, Lynch & Re, P.C. Before Landau, Presiding Judge, and Armstrong and Brewer, Judges. BREWER, J. Affirmed. BREWER, J. Plaintiff appeals a judgment on a jury verdict for defendant in this action for negligent entrustment of a golf cart. Plaintiff, a 16-year-old girl, was injured when she was struck by a golf cart driven on private property by an 11-year-old boy. Defendant, who was 14 years old at the time, owned the golf cart and had allowed the boy to operate it. (1) The trial court instructed the jury that defendant was subject to the duty of care toward other persons that generally applies to minors. On appeal, plaintiff argues, among other things, that the court erred in giving that instruction because defendant was subject to the more stringent adult standard of care. Plaintiff contends that both the entrustment and operation of a golf cart require adult

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Oregon Judicial Department Appellate Court Opinions

qualifications and, accordingly, minors who engage in those activities must be held to the adult standard of care. We review for errors of law, Bennett v. Farmers Ins. Co., 150 Or App 63, 72-73, 945 P2d 595 (1997), rev'd in part on other grounds, 332 Or 138, 26 P3d 785 (2001), and affirm. Defendant lived in central Oregon with her grandparents. In 1998, when she was 12 years old, defendant's grandfather purchased a motorized golf cart and gave it to her. The golf cart's maximum speed was approximately 12 miles per hour. Before making the purchase, defendant's grandfather spent several days teaching her how to drive a golf cart. Defendant was permitted to drive the golf cart around her grandparents' property. Other than to specify the boundaries within which the cart could be used on their property, defendant's grandparents did not restrict its use. Defendant was permitted to allow other children from the neighborhood to drive the cart on the property. However, defendant established her own rules about who could drive the cart and under what conditions. One of her rules was that no person under the age of 12 could drive the cart unaccompanied. Plaintiff and defendant were neighbors and friends. On June 15, 2000, they had been driving the golf cart around the property. They were standing near the cart when they were approached by Billy and Bobby, two brothers who also lived in the neighborhood. Bobby, who was 11 years old at the time, asked defendant if he could drive the golf cart. Defendant previously had allowed Bobby to drive the cart, but she had always accompanied him. This time, though, defendant did not want to ride on the cart with Bobby, so she refused his request. Bobby began to beg, and defendant eventually relented. Bobby drove the cart up the driveway, turned around, and drove back toward the other children. As he was approaching them, he attempted to stop the golf cart but stepped on the accelerator pedal instead of the brake. He drove directly into defendant and plaintiff. Plaintiff's left femur was fractured and required surgery to repair. In an amended complaint, plaintiff alleged that defendant negligently entrusted the golf cart to Bobby. At trial, plaintiff called several witnesses, including her mother. Plaintiff's counsel asked plaintiff's mother as to whether she had asked defendant about the incident. Defendant objected on the ground of relevance, and the trial court sustained the objection. On appeal, plaintiff assigns error to that ruling. However, plaintiff failed to make an offer of proof concerning the witness's anticipated testimony. Without knowing what the substance of her testimony would have been, we are unable to determine whether the trial court's ruling was erroneous or, if erroneous, whether it prejudiced defendant. See OEC 103(1) (stating that evidentiary error is not presumed to be prejudicial). We therefore reject that assignment of error without further discussion. After the parties rested, defendant moved for a directed verdict. She argued that Bobby's age, by itself, was insufficient to permit the jury to find that defendant negligently had entrusted the golf cart to him. The trial court denied the motion. Before submitting the case to the jury, the trial court discussed the parties' proposed jury instructions with counsel. Defendant requested UCJI 22.04, which provides: "In considering charges of negligence against a minor, you are instructed that it is the duty of a minor to use the same care that a reasonably prudent person of the same age, intelligence, and experience would use under the same or similar circumstances." Plaintiff objected to that instruction, arguing that, by permitting other people to operate the golf cart, defendant had engaged in an adult activity and must be held to an adult standard of care. The court gave UCJI 22.04 to the jury despite plaintiff's objection. The jury found that defendant was not negligent and, based on the jury's verdict, the trial court entered judgment in defendant's favor. On appeal, plaintiff argues that the trial court erred in giving UCJI 22.04. Specifically, she contends that all motorized vehicles, including golf carts, are inherently dangerous instrumentalities and that their operation is an adult activity for which it is appropriate to hold minors to an adult standard of care. She also asserts that the adult standard of care should apply when a minor entrusts another person with the operation of a motorized vehicle. In response, defendant contends that minors can be held to an adult standard of care
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Oregon Judicial Department Appellate Court Opinions

only in the operation of automobiles on roads or premises that are open to the public. Defendant crossassigns error to the trial court's denial of her motion for a directed verdict. A party is "entitled to have his [or her] theory of the case presented to the jury if there was evidence to support it and the proposed instruction was a correct statement of the law." State v. Thaxton, 190 Or App 351, 356, 79 P3d 897 (2003). Thus, here, we consider whether, on this record, the trial court's jury instruction correctly stated the standard of care applicable to defendant's conduct. (2) Generally, in a negligence action, an adult is held to the standard of care that a reasonable adult of ordinary prudence would exercise in the same circumstances. Woolston v. Wells, 297 Or 548, 557, 687 P2d 144 (1984). (3) Minors, by contrast, generally are held to the lower standard of care enunciated in UCJI 22.04. Nielsen v. Brown, 232 Or 426, 445, 374 P2d 896 (1962). However, the adult standard may apply when a minor engages in an adult activity. See id. At 446-51(discussing operation of automobiles on public highways; citing Restatement (Second) of Torts

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