## Facts

- In May 1987, David R. Strait was sixteen years old and rode in a pickup truck driven by twenty-one-year-old Terry Crary with other teenagers.
- Crary bought beer and other intoxicants for the teenagers; the teenagers became intoxicated while Crary remained sober and continued driving on country roads.
- While Crary drove within the speed limit, Strait, seated in the front passenger seat, attempted to climb out the passenger window to join others in the truck bed.
- Strait fell from the vehicle, and the truck ran over his leg, breaking it.
- Crary did not summon police or an ambulance; he instead placed Strait back in the truck and drove him to the hospital, allegedly causing additional pain and discomfort.
- Strait and his parents sued Crary and insurers for negligence.
- At trial, Strait requested jury instructions applying the “special” child standard of care for purposes of assessing Strait’s comparative negligence.
- The trial court refused, effectively treating Strait’s conduct as subject to an adult standard under an “adult activity” theory.
- The jury apportioned negligence 61% to Strait and 39% to Crary, resulting in dismissal of Strait’s personal-injury claims under comparative negligence.

## Issues

1. Whether the trial court erred by refusing to instruct the jury on the special standard of care applicable to children when assessing a sixteen-year-old plaintiff’s comparative negligence.
2. Whether the adult-activity exception justified holding the minor to an adult standard of care based on his conduct as a passenger attempting to move from the cab to the truck bed.

## Decision

- The court of appeals reversed the judgment dismissing Strait’s personal-injury claims.
- The trial court committed reversible error by refusing to give the requested child-standard-of-care instructions.
- The adult-activity exception did not apply to Strait’s conduct in attempting to climb from the cab to the truck bed.
- The case was remanded for a new trial limited to liability issues.

## Legal Principles

- A minor’s conduct in negligence and comparative negligence is generally measured by the care a reasonable child of like age, intelligence, and experience would use under similar circumstances.
- The adult-activity exception is narrowly confined to activities typically reserved to adults, such as operating a motor vehicle, and should not be expanded to ordinary risky behavior by minors.
- An instructional error on the applicable standard of care is prejudicial when it likely misleads the jury on comparative negligence apportionment and affects the verdict.

## Conclusion

Because the jury was not instructed to evaluate the sixteen-year-old plaintiff’s conduct under the child standard of care, and because his conduct did not fall within the narrow adult-activity exception, the liability verdict was unreliable; the dismissal judgment was reversed and the matter returned for a new trial on liability.


Strait v. Crary, 173 Wis. 2d 377, 496 N.W.2d 634 (Wis. Ct. App. 1992)