TIMOTHY STAHR GALLOWAY, as Guardian Ad Litem for TIMOTHY CURTIS GALLOWAY, Appellant, v. McDONALDS RESTAURANTS OF NEVADA, INC., a Nevada Corporation, Respondent
Galloway v. McDonalds Restaurants of Nevada, Inc.
Young, J. concurs.
TIMOTHY STAHR GALLOWAY, as Guardian Ad Litem for TIMOTHY CURTIS GALLOWAY, Appellant, v. McDONALDS RESTAURANTS OF NEVADA, INC., a Nevada Corporation, Respondent.
TIMOTHY STAHR GALLOWAY, as Guardian Ad Litem for TIMOTHY CURTIS GALLOWAY, Appellant, v. McDONALDS RESTAURANTS OF NEVADA, INC., a Nevada Corporation, Respondent.
No. 15607
December 5, 1986
728 P.2d 826
Gang and Berkley, Las Vegas, for Appellant.
Barker, Gillock & Perry, Las Vegas, and Michael A. Koning, Las Vegas, for Respondent.
OPINION
By the Court,
Gunderson, J.:
On September 14, 1981, Timothy Stahr Galloway entered Southern Nevada Memorial Hospital in Las Vegas with his three- and-a-half-year-old son, Timothy Curtis, who had somehow received serious burns on his right buttocks, calf and thigh. In attempting to explain how the boy had been so badly burned, Galloway told the admitting physician that, two days previously, he had placed the child "on a hot metal merry-go-round." Subsequent to his son's hospital care, the senior Galloway, as the child's guardian ad litem, sued McDonalds Restaurants of Nevada for damages, alleging that the burns occurred when his son climbed onto a Mayor McCheese Whirl,-a type of merry-go-round in a playground at a McDonalds "fast-food" restaurant.
At trial, Galloway repudiated the explanation he originally had given to the admitting physician at Southern Nevada Memorial Hospital, testifying instead that he was "absolutely positive" he had not placed the child on the "Whirl," because "I wouldn't put my son on a hot merry-go-round at all." Nonetheless, Galloway acknowledged that the boy had sustained no burns on his hands or knees. Thus, nothing indicated that the child had touched the allegedly hot metal with any part of his body while climbing onto the "Whirl." According to Galloway's trial court testimony, after the boy seated himself on the "Whirl," Galloway pushed the "Whirl" two to three revolutions. Then, he claimed, his son screamed "real loud" and he picked up the child. "I grabbed the handle real fast," he said, "and I was irritated 'cause I thought he was scared of the ride. . I stopped the ride real fast. I said, 'Timmy, what's wrong with you,' 'cause I was irritated 'cause I thought he was scared."
According to Galloway, after the boy was burned, he first sought treatment for him at the Desert Springs Hospital, and then returned to McDonalds to report the accident, which he claimed had occurred on their playground equipment earlier that same day. After considering Galloway's current story and other evidence, including his original report to Southern Nevada Memorial Hospital, the jury returned a verdict in favor of McDonalds, and a judgment was entered accordingly.
In this appeal, Galloway contends the trial court erred (1) by admitting testimony of the absence of prior accidents at the McDonalds playground, and (2) by refusing to give the jury an instruction on contributory negligence designed by his counsel. As hereinafter discussed, we perceive no error either in admitting the challenged evidence or in refusing to give the submitted jury instruction. We therefore affirm the judgment.
THE ABSENCE OF PRIOR ACCIDENTS
At trial, McDonalds introduced testimony regarding the absence of prior accidents of the kind alleged by Galloway. Appellant objected to the admission of such evidence but the trial court overruled the objection. The operations manager then testified that, to her knowledge, based on five years of employment with McDonalds, no other burns had been reported to have occurred on the "Whirl." "I've never had any cases like that before, in my entire career with McDonalds," she stated. She explained no signs had been posted warning of any potential problem with the heated metal in the Las Vegas sun, as she did not believe an accidental burn could have happened as the father now claimed — i. e., by climbing upon the merry-go-round without assistance from the father.
Appellant argues the court erred in admitting evidence that no reports of similar accidents had been received, because of its tendency to confuse and prejudice the jury. McDonalds contends the testimony of its operations manager was relevant to show that it had no notice or knowledge that the metal "Whirl" would be a dangerous condition. We agree with McDonalds.
"The general rule is that evidence of the lack of previous accidents under similar circumstances is admissible to prove that no dangerous conditions existed and that the injury was not reasonably forseeable." Baker v. Lane Cty., 586 P.2d 114, 118 (Or.App. 1978). Professor McCormick's treatise on evidence states: "A large number of cases recognize that lack of other accidents may be admissible to show . . . want of knowledge (or of grounds to realize) the danger." C. McCormick, McCormick on Evidence, 591-92 (E. Cleary 3rd ed. 1984). Indeed, McCormick concludes that
if proof of similar accidents is admissible in the judge's discretion to show . . . the defendant knew or should have known of the danger, then evidence of the absence of accidents during a period of similar exposure and experience likewise would be receivable to show that these facts do not exist in the case at bar.
Id. at 590.
We have previously determined that evidence of prior accidents is admissible to show notice of a dangerous condition. Southern Pacific Co. v. Watkins, 83 Nev. 471, 435 P.2d498 (1967). Thus, we agree with Professor McCormick and McDonalds that, because prior similar accidents may be admitted to show notice, evidence showing the absence of similar accidents should be deemed admissible to negate such notice.
We are unpersuaded by appellants' argument that such evidence will confuse the jury. The testimony of McDonalds' manager merely showed that, no matter how hot the days have been in Las Vegas, and no matter how many children have played on the merry-go-round, there have never been any other reported cases of burns on the "Whirl." Our review of the record indicates that this evidence was presented in a straight-forward manner and could not have confused or prejudiced the jury. Further, we believe that, "problems of prejudice and distraction over 'collateral issues' seem much more acute when it comes to proof of other accidents than when evidence of an accident-free history is proffered." McCormick on Evidence, at 591.
Accordingly, the district court did not abuse its discretion in admitting evidence showing the absence of prior similar accidents.
JURY INSTRUCTION
Appellants contend the district court erred by giving Jury Instruction 9-C. There is no dispute that Jury Instruction 9-C embodies the law in Nevada as to the duty of landowners. That instruction states:
An owner or occupant of land must exercise ordinary care and prudence to render the premises reasonably safe for the visit of a person invited on his premises for business purposes. An owner or occupant of land who knows, or in the exercise of reasonable care should know, of their dangerous and unsafe condition, and who invites others to enter upon the property, owes to such invitees a duty to warn them of the danger, where the peril is hidden, latent, or concealed, or the invitees are without knowledge thereof.
On the other hand, if the dangerous and unsafe condition is obvious, ordinary care does not require warning from an owner or occupant of land.
Because the instruction states the duty of a landowner in this type of action, we perceive no error by the trial court in giving this instruction. We have previously determined that "an erroneous instruction as to the duty or standard of care owing by one party to the other is substantial error requiring another trial." Otterbeck v. Lamb, 85 Nev. 456, 463, 456 P.2d 855, 860 (1969) (citation omitted). Thus, if the trial court had refused to instruct the jury as to the standard of care owed by McDonalds to this litigant, we would have been constrained to hold that refusal to be error.
Appellant next argues that the trial court erred by not giving his proposed Jury Instruction A, which stated:
You are instructed that since Timothy Curtis Galloway was a minor under the age of five years at the time of the incident, he was incapable of contributory negligence as a matter of law.
In Quillian v. Mathews, 86 Nev. 200, 467 P.2d 111 (1979), however, we specifically refused to adopt a rigid rule of 'this nature. In Quillian, we determined that the issue of a child's contributory negligence is one of fact "for the jury upon proper instructions unless reasonable minds could come to but one conclusion from the evidence." 86 Nev. at 203, 467 P.2d at 113. In so doing, we stated:
In our opinion it is not advisable to establish a fixed and arbitrary rule, and we reject the view espoused by the Ohio court in Holborck v. Hamilton Distributing, Inc., supra. We prefer to treat the issue of contributory negligence of a child as a fact issue for the jury upon proper instructions unless reasonable minds could come to but one conclusion from the evidence. This allows for a degree of flexibility in the handling of each case as it comes before the trial court. That court may decide initially whether reasonable minds could believe that the particlular child has the capacity to exercise that degree of care expected of children of the same age, experience and intelligence in similar circumstances. Should the court determine that the child has such capacity, the jury then is to decide whether such care was exercised in the particular case. Should the court rule otherwise, then, of course, the issue of contributory fault would not be submitted for jury resolution. . . .
Id.
In sum, we have expressly repudiated any Procrustean rule that, merely because a child has not reached some specified age, he or she is incapable of contributory negligence no matter what the situation, and no matter what the experience or capabilities of the child. Hence, the trial court could not give an instruction announcing to the jury that such is the state of the law in Nevada. "[T]he requested instruction must be consistent with existing law." Beattie v. Thomas, 99 Nev. 579, 583, 668 P.2d 268, 271 (1983) (citation omitted). Thus, the court properly refused to give the instruction.
The judgment of the district court is affirmed.
Young, J. concurs.
Although there were no signs warning parents of the potential effects of the hot Las Vegas sun on a metal seat, photos were admitted showing a sign warning that "children must be accompanied by an adult" while playing in the McDonalds park.
Plaintiff's counsel evidently did not employ any other means to raise the claim that, as to this specific child on these specific facts, the issue of contributory negligence should be foreclosed as a matter of law.