For the most part, in Texas, a child who is beneath the age of five is incapable of negligence as a matter of law. Yarborough v. Berner, 467 S.W.2d 188, 190 (Tex. 1971). Where the negligence of a child above the age of five is at issue, the child=s negligence is to be judged by a standard of conduct applicable to a child of the same age and not by that standard that is applicable to an adult. Yarborough, supra; Rudes v. Geottschalk, 324 S.W.2d 201, 204 (1959); Dallas Railway and Terminal Company v. Rogers, 218 S.W.2d 456 (1949); Texas and Pacific and Railway Co. v. Krump, 115 S.W. 26 (1909); Texas and Pacific Railway Co. v. Phillips, 42 S.W. 852 (1897); and Missouri Kansas and Texas Railway Co. v. Rogers, 36 S.W. 243 (1896). The pattern jury charge section 2.3, Child’s Degree of Care, defines the standard as follows:
Negligence, when used with respect to the conduct of a child, means failing to do that which an ordinary prudent child of the same age, experience, intelligence, and capacity would have done under the same or similar circumstances or doing that which such a child would not have done under the same or similar circumstances.
Ordinary care, when used with respect to the conduct of a child, means the degree of care that an ordinary prudent child of the same age, experience, intelligence, and capacity would have used under the same or similar circumstances.
The lower end of the age bracket is clearly five in the State of Texas, but there seems to be less clarity as to what the high end of the bracket will be. In Austin v. Hoffman, 379 S.W.2d 103 (Tex. App. – Austin 1964, n.w.h.), the Court stated “it would appear that if a child is under the common law bracket of fourteen, the Texas Courts apply the standard of care applicable to children, on the other hand, if a child is above the age of fourteen, the adult standard of care is applied, unless it be shown that the child is wanting discretion or laboring under the handicap of some mental disability.” Austin v. Huffman, 379 S.W.2d 107.
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