Instruction No. 9.4
CHILD'S CAPACITY FOR NEGLIGENCE

In deciding whether [Name of Child] was negligent, you must first determine whether a child of [his/her] age was capable of being negligent. To do so, you should take into account that:

[Select the appropriate instruction from the following:]

If you decide that [Name of Child] was capable of being negligent, you must then determine whether [he/she] was negligent in this case.

Instruction No. 9.4 and 9.4A are both concerned with the negligence of children and should normally be given together along with the definition of negligence in Instruction No. 9.2. Instruction No. 9.4 deals with the issue whether a particular child is capable of negligent conduct. If the jury determines that the child has the capacity for negligence, then it must decide whether the child was negligent on a specific occasion using the standard in Instruction Nos. 9.2 and 9.4A. Although a child may be charged with negligence as a defendant, more frequently a child will come to court as a plaintiff and be charged with contributory negligence by the defense.

The trial court should select the appropriate instruction for the child's age. Lack of capacity for negligence is subject to a rebuttable presumption for children between 7 and 14 years, and to no presumption for children 14 years and older.

Since children under 7 years old are conclusively presumed to lack capacity for negligence, the issue of a child's negligence should not be presented to the jury if the child is less than 7 years old. Consequently, there is no option given in the Instruction to cover children under 7. If there are multiple children involved in a case and some of them are under 7 and some are over 7, it may be helpful for the court to inform the jury that it may not find the children who are under 7 to be negligent.

The Oklahoma Supreme Court appears to recognize the traditional distinctions with respect to negligence for children of differing ages that are borrowed from the criminal law. See 21 O.S. 1991 § 152 (children under 7 are incapable of committing crimes; children between 7 and 14 are presumed incapable of committing crimes in the absence of proof otherwise). But see Prosser & Keeton, Law of Torts 180 (5th ed. 1984) (criticizing traditional distinctions).

A child less than 7 years old is conclusively presumed incapable of negligence as a matter of law. Thomas v. Gilliam , 1989 OK, 3,  774 P.2d 462, 466 ("A child under the age of seven years or, in the absence of evidence establishing capacity, one between the ages of seven and fourteen years, is presumed incapable of negligence.) (Simms, J., dissenting) (emphasis in original); McClelland v. Post No. 1201, VFW , 1989 OK 33,  770 P.2d 569, 572 n.8 (dictum); Strong v. Allen , 1989 OK 17, 4,  768 P.2d 369, 372 ("At common law, as it stands in Oklahoma today, a child under seven years of age is conclusively presumed to be incapable of any negligence.") (Opala, J., dissenting) (emphasis in original); Hampton By and Through Hampton v. Hammons , 1987 OK 77, 30, 743 P.2d 1053, 1061 ("A child of tender years is generally considered incapable of negligence."); Connor v. Houtman , 1960 OK 52, 9, 350 P.2d 311, 313 ("[T]he majority of courts hold that an infant under 5 years of age is incapable of negligence."). Children between 7 and 14 years old are presumed incapable of negligence. Thomas v. Gilliam, supra; McClelland v. Post No. 1201, VFW, supra; Strong v. Allen, supra , 768 P.2d at 372 n.1 ("At common law, as well as in Oklahoma, ..., in the absence of evidence establishing capacity, [a child] between the ages of seven and fourteen years, is presumed incapable of negligence"). See also Knowles v. Tripledee Drilling Co., Inc ., 1989 OK 40, 4,  771 P.2d 208 , 210, where the Oklahoma Supreme Court described the distinctions based on the ages of children in the context of the attractive nuisance doctrine, as follows: "[C]hildren under the age of 7 years and, in the absence of evidence of capacity, those children between 7 and 14 years of age have been presumed to be incapable of contributory negligence . . . ."