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Francis v. Dahl1/13/2005
financial inability of the plaintiff. See Burt v. Beautiful Savior Lutheran Church, supra; Berger v. Sec. Pac. Info. Sys., Inc., 795 P.2d 1380, 1385 (Colo. App. 1990); C. McCormick, Law of Damages ยง 38 (1935).
Colorado has long refused to sustain the doctrine that the contributory or comparative negligence of the parents of a child of tender years shall be imputed to the child. Denver City Tramway Co. v. Brown, 57 Colo. 484, 493, 143 P.2d 364, 368 (1914); cf. Cintron v. City of Colo. Springs, 886 P.2d 291, 295 (Colo. App. 1994)(even though a parent may voluntarily undertake to aid the assertion of the child's claim by acting as a next friend, the minor will not, generally, be charged with the parents' negligence); Kennedy v. Pelster, 813 P.2d 845, 847 (Colo. App. 1991)(the discovery sins of a parent should not be visited upon the head of the child).
Further, courts in other states have expanded the principle precluding imputation of a parent's negligence to the concept of mitigation of damages. For example, in Cardona v. County of Albany, 188 Misc.2d 440, 447-48, 728 N.Y.S.2d 355, 362 (N.Y. Sup. Ct. 2001), the court stated as follows:
The Court is of the view that the infant plaintiffs, being non sui juris, were, as a matter of law, unable to mitigate their damages. To the extent that the affirmative defense relies upon their mother's failure to mitigate, the Court finds that the defense is, in reality, an attempt to impute [mother's] contributory negligence (in the form of her failure to take adequate protective measures to shield her children from lead paint exposure) to the infant plaintiffs.
On that basis, the Cardona court dismissed the defendant's affirmative defense of mitigation of damages.
These principles have also been persuasively applied where, as here, defendants have claimed that a minor plaintiff did not mitigate his or her damages because of a failure to seek medical treatment. In Favier v. Winick, 151 Misc.2d 910, 583 N.Y.S.2d 907 (N.Y. Sup. Ct. 1992), the court held that a parent's decision not to submit an eleven year-old child to remedial medical treatment or surgery and concomitant failure to mitigate damages cannot be attributed to the child and, therefore, cannot be presented to the jury. In so holding, the court concluded that a child of the age of eleven is necessarily dependent upon his parents as regards the steps to be taken to bring about a recovery from an injury, that a neglect of proper surgical treatment by the parent cannot be imputed to the child and that no part of the infant plaintiff's damages may be reduced upon the conduct of the parents.
Favier v. Winick, supra, 151 Misc.2d at 912, 583 N.Y.S.2d at 909; see also Lange v. Hoyt, 159 A. 575, 577-78 (Conn. 1932) (recognizing that an eight year-old child is dependent upon her parents regarding steps to be taken to bring about recovery from an injury and concluding that, even if the mother had neglected to obtain proper surgical treatment for the child, her negligence would not be imputable to the child); Galvin v. Cosico, 90 A.D.2d 656, 456 N.Y.S.2d 259 (1982)(alleged negligence of mother in not immediately transporting her injured child to the hospital could not be ascribed to the child). We find the reasoning in these cases persuasive and applicable to the circumstances here.
The mitigation instruction here was specifically directed to whether plaintiff, a ten year-old child, failed to "seek medical or chiropractic treatment" for injuries sustained in the accident with defendant. However, we conclude that a ten year-old child cannot, as a matter of law, reasonably be expected to handle the challenges and intricacies of choosing, arranging,
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