Dennis Clark, a Minor by William H. Clark, His Father and Next Friend v. Circus--Circus, Inc., a Nevada Corporation

The Clarks on behalf of themselves and their minor child, Dennis, appeal from a judgment in favor of Circus-Circus, Inc. (“Circus”), entered after a jury verdict in their action for damages for personal injuries suffered by Dennis. Jurisdiction was based on diversity.

At the time of the accident Dennis was 4 years, 5 months, and 26 days old. He struck a chain suspended about 4 feet from the ground as he was running towards his mother in Circus’s parking lot in Nevada. He struck his mouth, thereby sustaining the injuries upon which the complaint is founded.

The principal claim of error is the district court’s instruction to the jury permitting it to find that Dennis was contributorily negligent. 1 The instruction was a slightly modified version .of an instruction approved in Quillian v. Mathews (1970) 86 Nev. 200 , 467 P.2d 111 .

We agree that Nevada law controls, and the only Nevada case which we have been able to discover that deals with contributory negligence of children is Quillian . However, we believe that the district court misread Quillian . That case involved personal injuries sustained by a six-year old child when she darted in front of a car as she was…

(concurring):

I concur in the result but with misgivings.

This being a diversity case, the Nevada law of torts controls. The majority holds that “the district court should have taken judicial notice that a 4V2 year old child running to his mother could not be held responsible for his acts when he ran into the chain . . . The district court erred in concluding that the child was capable of contributory negligence and thereafter in submitting the question of contributory negligence to the jury.”

I read the above language as announcing as the law of Nevada that a child of 4V2 years, as a matter of law, cannot be guilty of contributory negligence and in no case involving a child of this age may an issue of contributory negligence be submitted to the jury.

I am not at all sure that the rule of law which the majority apply is in accord with Nevada law as enunciated by the Nevada Supreme Court. About all that can safely be said is that the rule of law enunciated by the majority is not foreclosed by any reported Nevada decision.

As the majority observes, the only Nevada decision on the subject of negligence by minors is Quillian v. Mathews, supra, which involved a 6 year old child. I…

525 F.2d 1328 Dennis CLARK, a minor by William H. Clark, his father and next friend, et al., Plaintiffs-Appellants, v. CIRCUS--CIRCUS, INC., a Nevada Corporation, Defendant-Appellee. No. 74--1321. United States Court of Appeals, Ninth Circuit. Nov. 17, 1975. Raymond E. Sutton, Las Vegas, Nev., for plaintiffs-appellants. Beckley, Delanoy & Jemison, Las Vegas, Nev., for defendant-appellee. OPINION Before HUFSTEDLER and TRASK, Circuit Judges, and HILL, * District Judge. HUFSTEDLER, Circuit Judge: 1 The Clarks on behalf of themselves and their minor child, Dennis, appeal from a judgment in favor of Circus-Circus, Inc. ('Circus'), entered after a jury verdict in their action for damages for personal injuries suffered by Dennis. Jurisdiction was based on diversity. 2 At the time of the accident Dennis was 4 years, 5 months, and 26 days old. He struck a chain suspended about 4 feet from the ground as he was running towards his mother in Circus's parking lot in Nevada. He struck his mouth, thereby sustaining the injuries upon which the complaint is founded. 3 The principal claim of error is the district court's instruction to the jury permitting it to find that Dennis was…