Appeals judges overturn trial judge's decision excluding opinions of child witness
David J. Little, age 10, was struck by Robert Lang's pickup in the City of Muskegon. Little's family sued Lang, arguing that he was driving too fast for conditions and that he failed to adjust his speed after seeing Little near the road. Lang presented an affidavit of another motorist in support of his claim that there was "nothing Lang could do" to avoid the collision and asked the Court to summarily dismiss Little's claim. The Little family presented the affidavit of another neighborhood child who witnessed the incident, claiming that Lang was driving too fast.The Trial Court issued a series of rulings, concluding that the 9 year-old witness was too young and did not have the "life experiences" necessary to offer "expert" opinion testimony about Lang's speed, that the ten-year old Little was more than fifty percent the cause of the collision, and that Little's claim for non-economic damages should be dismissed. The Court of Appeals unanimously found error in each of these conclusions and reversed the lower court.
The reviewing judges pointed out that many prior appellate decisions, including Supreme Court decisions, have held that children can offer opinion testimony. (The witness's age is simply one factor for the jury to weigh in assessing the testimony.) The judges emphasized the impropriety and illogic of ruling that the young plaintiff was more than fifty percent negligent in entering the roadway in an unsafe manner, while simultaneously concluding that his peer could not offer an opinion about the danger presented by an approaching motorist: "It was incongruous for the trial court to have concluded, as matters of law, that [the witness] was too young to testify, but that Little was old enough to be bound by principles of comparative fault."