An infant*fn1 party in a negligence trial is entitled to an instruction that a jury must consider his age and intelligence, as well as his experience and capacity to understand and to avoid the danger to which he was exposed in the actual situation. Goss v. Allen, 70 N.J. 442, 447-448 (1976). Thus, a child's conduct is to be measured by what can be expected of the average child of the same age, having the same judgmental capacity. See Bush v. N.J. & N.Y. Transit Co., 30 N.J. 345 (1959). An exception to this general rule, however, is that an infant is to be held an adult standard of care where he engages in "an activity which may be dangerous to others and normally is undertaken only by adults." Goss v. Allen, 70 N.J. 442, 446, supra. The adult standard is objective; the infant standard is more subjective. The precise issue before the Court is by what standard a jury should evaluate the conduct of a 12-year old child who operates a dirt bike*fn2 on a public roadway where he is injured in a collision with an automobile?
On September 19, 1979, Kenneth Demeri (Kenneth), the unlicensed infant plaintiff, was riding his unregistered, uninsured motorcycle in Lynn Park which is owned and maintained by the Borough of Lincoln Park. This parkland was regularly used by juveniles and others as a practice course over which to run their dirt bikes. Lynn Park is located directly across Curtis Drive, a municipal road, from Kenneth's home. Curtis Drive in this neighborhood runs north and south.
When Kenneth's father observed the boy riding alone, he sent another Demeri child to order the boy home immediately.
Kenneth had previously been instructed by his parents never to ride his motorcycle in the park without supervision. His father had also instructed Kenneth never to drive the dirt bike on Curtis Drive, but rather to walk it over the public thoroughfare when returning home from the park. Kenneth had received no instruction from his father respecting traffic regulations for public roads.*fn3
To return home, it was necessary for Kenneth to cross Curtis Drive directly from west to east. For whatever reason, he elected to return home without dismounting from the moving dirt bike. Whether he paused at the curb and made observations of the vehicular traffic on Curtis Drive was a factual question. N.J.S.A. 39:4-66.1 requires "(t)he driver of a vehicle . . . about to enter or cross a highway . . . shall yield the right of way to all vehicles approaching on said highway." Nevertheless, Kenneth proceeded to drive across the paved surface of Curtis Drive toward his house and into the path of an oncoming automobile.
At about the same time, an automobile driven by defendant Joseph F. Morris moved away, southbound, from its parking place on the east side of Curtis Drive.*fn4 Apparently, Morris had driven out from behind a legally parked car, which partially obscured his vehicle from view. Unfortunately, the predictable did occur: there was a collision between the car and Kenneth's dirt bike toward the middle of Curtis Drive. The impact
produced severe and permanent injuries to Kenneth. A close jury question as to liability was presented.*fn5
The Supreme Court in Goss recognized "that certain activities [like snow skiing] engaged in by minors are so potentially dangerous as to require that the minor be held to an objective standard of care." 70 N.J. at 447. Plaintiff concedes that the focus for the jury should be the activity engaged in, not the party status of the infant. When an infant engages in an activity normally undertaken only by adults and for which adult qualifications are required, legal fault must be evaluated in the context of the danger implicit in the activity, not the infant's perception of the danger or lack thereof. Restatement of Torts (second), § 283A (1965). Hence, whether the party is a plaintiff or a defendant is immaterial to the law of torts.
Plaintiff contends that riding a dirt bike is a child's activity. No direct evidence was produced to establish this proposition. Testimony did tend to establish that juveniles regularly used Lynn Park as a practice course for their motorcycles. The Borough either permitted, or at least tolerated, this use of public land. In support of this proposition, plaintiff points out that operation of a motor vehicle on park land does not require a license unless the interior roadways are used. See N.J.S.A. 39:5A-4. Obviously, ...