Dellwo v. Pearson

107 N.W.2d 859 (1961)

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Nature of the Case

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Facts

Ps were fishing on a lake by trolling at a low speed with about 40 to 50 feet of line trailing behind the boat. D, a 12-year-old boy, operating a boat with an outboard motor, crossed behind Ps' boat. P felt a jerk on her line which suddenly was pulled out very rapidly. When the line had run out her fishing rod was pulled downward, the reel hit the side of the boat, the reel came apart, and part of it flew through the lens of P's glasses and injured her eye. An inspection of D's motor disclosed 2 to 3 feet of fishing line wound about the propeller. Ps sued D for negligence. The court ruled that the duty to which D is held is modified because he is a child by which D is held to that degree of care which ordinarily is exercised by children of like age, mental capacity, and experience under the same or similar circumstances. The court instructed the jury as to the child standard of care. It further instructed that 'A person guilty of negligence is liable for all consequences which might reasonably have been foreseen as likely to result from one's negligent act or omissions under the circumstances; * * *. A wrongdoer is not responsible for a consequence which is merely possible according to occasional experience, but only for a consequence which is probable according to ordinary and usual experience.' D got the verdict and Ps appealed. Ps contend that the trial court erred in its instruction that a defendant is not responsible for unforeseen consequences of negligence. Ps contend that the instruction limiting liability for negligence to foreseeable consequences was a part of the instruction on proximate cause and, in effect, made foreseeability a test of proximate cause.