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Yount v. Johnson3/26/1996
BOSSON, Judge.
{1} While engaging in horseplay during high school, Defendant Larry Johnson, then age 17, injured Matthew Monett, age 15. Monett seeks to recover against Johnson for some or all of his damages under a theory of comparative negligence. The district court issued summary judgment against Monett, concluding that Johnson could be sued only for recklessness or intentional and wilful misconduct, but not for negligence. We are asked to decide whether, as a matter of policy, minors who engage in horseplay or similar activities have no duty of reasonable care to one another. On appeal, we hold that ordinary principles of comparative negligence do apply to the activities in question here and therefore, we reverse and remand.
FACTS
{2} Monett and Johnson, both juniors in high school, were classmates in horticulture. On November 9, 1991, Monett, Johnson, and a third student went to the greenhouse to water the plants. On the way to the greenhouse, the three students began some gentle horseplay, tagging each other on the arm. The incident that injured Monett occurred during the next break between classes. Most of the horticulture students were standing around outside the classroom, some engaging in horseplay. While Johnson was talking to another student, Monett came up behind Johnson, put both his hands on Johnson's shoulders, shook him a little, and said "hey" or the like. Monett then turned around and started walking toward class. Not willing to leave it at that, Johnson grabbed Monett from behind and picked him up by putting Monett's legs under Johnson's right arm and Monett's head under Johnson's left arm. Johnson then spun Monett around once or twice, walked to a chain link fence and pushed Monett into the fence. When Monett complained that his back hurt, Johnson put him down. The incident seriously injured Monett's back. Although Monett's back was asymptomatic at the time of the incident, Monett suffered from a preexisting back condition, and had even worn a back brace to school the year before. Johnson testified he was unaware Monett had a back problem.
{3} There is no evidence in the record that Johnson had ever before picked Monett up in this fashion and spun him around or pushed him into a fence. Although on previous occasions Monett and Johnson had engaged in nudging and shaking each other, Monett said that he would not have hit Johnson, because Johnson was bigger and "that's suicide." At the time, Monett, the younger of the two, weighed only 120 pounds. Monett conceded that he had participated before in horseplay with others, including pushing and punching on the arm in a playful manner.
Discussion
{4} In recent decades, our courts have moved forcefully towards a public policy that defines duty under a universal standard of ordinary care, a standard which holds all citizens accountable for the reasonableness of their actions. The movement has been away from judicially declared immunity or protectionism, whether of a special class, group or activity. The theme, constantly reiterated, is that "'every person has a duty to exercise ordinary care for the safety others.'" (quoting )); see also . Our courts have rejected efforts to substitute a lesser duty, for example, by limiting accountability to acts of gross negligence, as opposed to reasonable and ordinary care. See ; ; see also Jennifer A. Noya, Note, The Application of the Rescue Doctrine Under Comparative Negligence Principles: Govich v. North American Systems, Inc., 23 N.M. L. Rev. 349 (1993).
{5} As a corollary, we are also reminded of the "ameliorative principles of comparative negligence," , which strongly favor letting a jury determine the relative accou
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