(dissenting). The standard of care now made generally applicable to minors does not square with reality, nor does its purported application justify the charge given.
I
The factual context of this case is set forth both in the Appellate Division and majority opinions. Conspicuous by their absence, however, are the trial court’s numerous charges on the defendant’s standard of care. In chronological order and intermittently, the trial court instructed the jury:
1. “The law says that as far as one under 18 is concerned — 18 or younger — we don’t exact from him or her the same degree of care that we exact from an adult. We expect that we call an infant, which is anyone under 18 — we exact that degree of care which a reasonably prudent person of that age would have exercised under the same or similar circumstances. So, as I said to you, Steven Allen on this date was 17 years old, and the law exacts from him the standard of care that a 17 year old would exercise under the circumstances.”
2. [Allen claimed he] “exercised that degree of care which a reasonably prudent person would or should have exercised.”
3. [Defendant claims he] “exercised reasonable care as a 17-year-old beginner skier.”
4. “Like any 17 year old or like any beginner skier or both — any beginning 17-year-old skier.”
5. [The applicable standard is] “that degree of care that might reasonably be expected of a 17-year-old beginner skier.”
*4516. “Perhaps I didn’t charge as clearly as I thought that I had charged with reference to the duty of a 17 year old. I know that I used the term 17-year-old beginner, and that may lead' to some confusion. Get me try to straighten it out. The law imposes on a 17 year old that standard of care that a 17 year old with the experience and background that this 17 year old had. It does not impose any Hgher or any lower degree of care than can reasonably be expected of a 17 year old with respect to the experience and background that Mr. Allen had in this case.” [Emphasis supplied].
The majority accepts and approves the last, number 6y which was the trial court’s supplemental charge. That simply stated that Allen had to exercise the same care as-someone of the same age, experience and background. This; charge does not equate with the standard adopted today by the majority, namely that Allen must act in accordance with the conduct of a reasonable person of the same age, intelligence and experience under the same circumstances.
The significance of the omission of intelligence in the charge becomes apparent when one recognizes the importance of that factor in fixing the required standard of care. Intelligence in this context relates to mental and judgmental capacity but not the exercise of that capacity. The distinction between exercise of mental or judgmental capacity and the capacity itself points to the objective-subjective elements in the test. Restatement, Torts 2d, § 283A, Comment batl5 (1965). The defendant’s conduct is to be measured against the conduct of the average or usual 17-year-old having the same judgmental capacity.
The crucial element in determining the standard of care to be established for infants centers about the judgmental capacity factor to comprehend, understand and perceive risk and danger. Age, experience, education, social background and intellectual capability have their respective places in the formation of judgmental capability. Whether the infant should or should not have acted or reacted in a certain manner depends on whether the theoretical average infant having the same capacity would have acted or reacted in the same fashion.
*452Case law has stressed the judgmental capacity factor. In Hellstern v. Smelowitz, 17 N. J. Super. 366, 378 (App. Div. 1952), Judge Jayne pointed out that consideration must be given to the child’s “capacity to understand and avoid dangers to which it is exposed in the actual circumstances and situation under investigation.” When this Court last considered the infant standard of care problem, Bush v. N. J. v. N. Y. Transit Co., Inc., 30 N. J. 345 (1959), its analysis focused upon the “problem of the capacity of children of tender years to act negligently.” Id. at 352.
The Restatement, Torts 2d, § 283A, advocates that a child’s acts or omissions be compared to that of a reasonable person of the same age, experience, and intelligence.1 The majority has apparently adopted this rule. Although the Restatement does not on its face view age, experience, and intelligence as simply some elements to determine judgmental capacity, in its discussion under Comment b, it recognizes that the fact finder must analyze those factors to determine judgmental capacity. The Restatement asks whether that hypothetical person with the same judgmental capacity would have acted or reacted in the same manner. The trial court’s supplemental charge omitted any reference to the defendant’s intellectual capacity and failed to clearly instruct the jury, to measure the defendant’s judgment against that of the average 17-year-old with the same intellectual capacity. The jury could not possibly have understood the subjective-objective test which the Court is adopting this day. So even assuming the correctness of the principle adopted by the majority, in view of the several conflicting instructions given to the jury, a new trial is warranted.
*453 II
Presumably the majority is adhering to the principles enunciated in Bush v. N. J. & N. Y. Transit Co., Inc., supra. We held there that a child under age seven was rebuttably presumed to be incapable of negligence and the issue was not to be submitted to the jury in the absence of evidence “from which the jury could infer that the child was capable of understanding and avoiding the danger of injury involved in the circumstances of the case.” 30 N. J. at 358. The party asserting the infant’s negligence or contributory negligence bore the burden of proof.
Under the norm adopted this day where the negligence or contributory negligence of an infant between ages 7 and 18 is in issue, his activity or inactivity is to be measured by a reasonable person of the same age, intelligence and experience under similar circumstances unless the activities “are so potentially hazardous as to require that the minor be held to an adult standard of care.” Ante at 447. There are several inherent difficulties in and inequitable consequences of this rule.
What criteria are to be employed by the jury to ascertain whether an activity is “potentially hazardous”? If a “potentially hazardous” activity is one which results in serious or permanent injury, then almost any activity might fall within that category. The injured person who has lost the sight of an eye resulting from a carelessly thrown dart, or stone, or firecracker, the death caused by a bicycle, or an individual seriously maimed due to an errant skier — all are indisputable proof of “potentially hazardous” activity. The majority prescribes no guideline except to imply that whenever licensing is required, the “potentially hazardous” test is met.2 But the State does not impose a licens*454ing requirement on all “potentially hazardous” activities and whether one has a license or not is often not relevant in measuring conduct of a reasonably prudent person. Whether the driver of a automobile is licensed, for example, is not relevant in adjudicating if the automoble was being driven in a reasonable prudent manner. In Charbonneau v. MacRury, 84 N. H. 501, 153 A. 457, 464 (1931), the New Hampshire Supreme Court pointed out that by licensing drivers the State “has not undertaken to deal with the rule of care at all. It neither expressly or impliedly authorizes the trier of facts to disregard the legally ascertainable defects of the actor when material to the issue of his reasonable conduct, whether he be an adult or a minor. The authorized license is not a certificate of the physical perfection of the adult or of the mental maturity of the eligible minor.”
To the injured party, his loss is the same irrespective of the wrongdoer’s date of birth and it is inequitable and unjust that a minor should not be expected to exercise the same degree of care as the mythical reasonable and prudent person, at least when engaged in adult activities.3 The majority’s proposition unnecessarily sanctions the imposition of the burden of young people’s hazards on innocent victims. Whenever an infant participates in activities in which adults normally engage, the infant should be held to the adult standard of care. Other courts have not hesitated to do so. Minors participating in these activities are mature enough to possess the “discretion and physical capacity consistent with . . . the presumption of adult responsibility . . . .” Nelson v. Arrowhead Freight Lines, 99 Utah 129, 104 P. 2d 225, 228 (1940). See also, Dellwo v. Pearson, 259 Minn. 452, 107 N. W. 2d 859 (1961) (motor boat operation) ; Neumann v. Shlansky, 58 Misc. 2d 128, 294 *455N. Y. S. 2d 628 (Cty. Ct. 1968), aff’d o. b. 63 Misc. 2d 587, 312 N. Y. S. 2d 951 (App. T. 1970), aff’d mem., 36 A. D. 2d 540, 318 N. Y. 8. 2d 925 (1971) (golfing); Harrelson v. Whitehead, 236 Ark. 325, 365 S. W. 2d 868 (1963) (motorcycle); Jackson v. McCuiston, 247 Ark. 862, 448 S. W. 2d 33 (1969) (tractor-propelled stalk cutter); Adams v. Lopez, 75 N. M. 503, 407 P. 2d 50 (1965) (motor scooter); Betzold v. Erickson, 35 Ill. App. 2d 203, 182 N. E. 2d 342 (App. Ct. 1962) (truck). Some jurisdictions recognize that children after a certain age are presumably capable of adult discretion. Lassiter v. Poss, 85 Ga. App. 785, 70 S. E. 2d 411, 414 (Ct. App. 1952) (14); Nelson v. Arrowhead Freight Lines, supra (14); City of Austin v. Hoffman, 379 S. W. 2d 103, 107 (Tex. Civ. App. 1964) (14).
Inherent in these approaches, either on the basis of activities or on age well below legal adulthood, is recognition of the realism and justness in applying the adult objective standard. In some measure this is probably due to the expansion of experiences and activity of minors, as well as the protection afforded all members of the family by comprehensive liability insurance policies.4 Functionally, skiing is as much a sport for people over 18, as under 18.5 It is no different than golf or cycling. And the hazards to the public whether operating a motor vehicle, power boat, motor scooter, bicycle, tractor or hitting a golf ball, or skiing are self-evident. Third persons may be exposed to serious injury because of the dangers which occur when the activity is not being performed in a reasonably prudent manner by a rea*456sonably prudent person and no sound reason exists for not holding the child defendant to the standard of the reasonably prudent adult. See 2 Harper & James, Law of Torts, § 16.8 at 927 (1956).
Ill
The 18-year-old line drawn today is contrary to policies enunciated by the legislature in regulating some aspects of the conduct of minors in relation to others. A 16-year-old juvenile may be tried as an adult for a homicide, treason, offense against the person in an aggressive, violent and willful manner, or for sale and distribution of narcotics. N. J. S. A. 2A :4-48. At age 16-1/2, a person may obtain a special learner’s permit to drive a car so that a driver’s license may be obtained at age 17. N. J. S. A. 39:3-13.1 and N. J. S. A. 39:3-13.4. At age 13 one may be licensed to operate a boat with an outboard motor. N. J. S. A. 12:7-34.7. Under this Court’s rules a 17-year-old infant may file a verified petition. R. 4:26-2(b). The 18-year-old line is not consonant with the common law rule that at age 14 an infant is presumed to have the capacity to be guilty of criminal intent. Blackstone’s Commentaries, Bk. IV, Sec. 23. The Restatement, Torts 2d, § 283A, Comment a refers to the fact that its rule “has seldom been applied to anyone over the age of sixteen” and “is commonly applied to children of tender years.”
The 18-year demarcation line ignores the earlier mental development of young people. A few comments from experts in the field of child behavior demonstrate the point.
* * * [T]he middle-years [6 to 12 plus] child’s growing mastery of symbols and his ever-broadening - fund of general knowledge permit him to think in ways that come to approximate those of adults. Indeed, in some areas, the child may know a great deal more than his less educated parents and so be able to think more rationally than they * * *. [L. Stone and J. Church, Childhood and Adolescence at 412-413 (2d ed. 1968)].
s|e sH % sh i}t ❖ *
* * * Hodman [in “Children Under the Law,” 43 Harv. Ed. Rev. 487, 489 (1973)] notes that the law’s placement of the dividing *457line between legal minority and adult status at the age of eighteen or twenty-one years is “artificial and simplistic” because it obscures the dramatic differences among children of different ages and the striking similarities between older children and adults. That observation seems so sound and obvious that it raises the question of how such differences — and also the resemblance between older children and adults — have come to be obscured? [Skolnick, “The Limits of Childhood: Conceptions of Child Development and Social Context,” in Children and the Law (Symposium), 39 Law & Contemp. Prob. 38, 43 (1975)].
Selection of the 16th year is a more reasonable age at which to draw the line for the individual to be held to an adult standard of care irrespective of the activity.
IV
I would adopt a rule that an infant 16 years or over would be held to an adult standard of care and that an infant between ages 7 and 16 would be rebuttably presumed to have the duty to act, while engaged in an adult activity, that is, one in which adults normally or usually engage, as a reasonably prudent person, but that, upon a showing that adult judgmental capacity for that type of activity is not warranted, the subjective-objective criteria of the Restatement and adopted by the majority be applied.6 Application of this rule recognizes the difference between negligence and contributory negligence since the required judgmental capacity in foreseeing and avoiding the hazards created by others may be substantially greater than that to be comprehended by *458one’s own acts.7 See Zuckerbrod v. Burch, 88 N. J. Super. 1, 8 (App. Div. 1965); Note, supra fn. 4, 1962 Dulce L. J. at 142-143; 2 Harper & James, supra, Law of Torts, § 16.8 at 40 (Supp. 1968); Roberts v. Ring, 143 Minn. 151, 173 N. W. 437 (1919). If the infant between ages 7 and 16 is found not to have been occupied in an adult activity, the Restatement rule adopted by the majority would be applicable. As to those 16 or over I would apply the adult standard.
I would affirm the judgment of the Appellate Division.
For reversal and reinstatement — Chief Justice Hughes, Justices Sullivan and Pashman and Judges Coneokd, Kolovsky and Carton — 6.
For affirmance — Justice Schreiber — 1.
The standard of conduct to which an infant is to be held when his own liability is in question may properly be quite different from that to which he is to be held when he seeks to recover from an admittedly negligent defendant. It is apparent that different considerations may be involved in these several types of cases. There is á strong policy in favor of protecting children from losses attributable to their immaturity. It would be quite plausible, therefore, for a court to be more lenient toward children whose injuries are attributable, not only to their immaturity, but also to conceded tortious conduct on the part of the defendant, than toward children who are the sole responsible causes of injury to others. [37 Yale L. J. at 619].
The Restatement reads as follows:
§ 283 A. Children.
If the actor is a child, the standard of conduct to which he must conform to avoid being negligent is that of a reasonable person of like age, intelligence, and experience under like circumstances.
No license is required for a motorized bike, but a ten-speed bike can be pedaled at 25 miles per hour on a flat road. The U. S. Consumer Product Safety Commission reports that there are 500 to 1000 fatalities and about 500,000 permanently crippled each year from bicycle mishaps.
Dean Shulman acknowledged that “in some situations a minor is fully as competent as a person over twenty-one and should be held to the same standard of conduct.” Shulman, “The Standard of Care Required of Children,” 37 Yale L. J. 618 (1928).
Payments for child responsibilities are made by adults or insurance companies under policies paid for by adults. James, “Accident Liability Reconsidered: The Impact of Liability Insurance,” 57 Yale L. J. 549, 554-556 (1948). In Note, “Torts: Application of Adult Standard of Care to Minor Motor Vehicle Operators,” 1962 Duke L. J. 138, 141 it is stated that “Minors are seldom sued in the absence of insurance, because they usually lack sufficient financial resources to make suit worthwhile.”
Sullivan, The Complete Book of Family Skiing (1966).
Professor Bohlen suggests that where harm has been intended the infant should be held “to exactly the same extent as for his failure to conform to those standards of conduct which are obligatory upon normal persons.” “Liability in Torts of Infants and Insane Persons,” 23 Mich. L. Rev. 9, 32 (1924). See Note, “A Proposal for a Modified Standard of Care for the Infant Engaged in an Adult Activity,” 42 Ind. L. J. 405 (1967).
Shulman, supra fn. 3 commented: