An Infant Child Cannot be Found To Have Assumed the Risk of Injury

by Peter M.

An infant child cannot be found to have assumed the risk of personal injury, nor can the negligence of a parent who placed him or her in that position of risk be transferred to the child. One of the most aggravating cases that I ever handled involved what we in my office considered an Assumed Risk case. It also involved, unfortunately, an innocent minor; a baby, really. It was very sad.

Our policy holder had a black rotweiler dog that had bitten someone before when it was a puppy (several years before this incident occurred). He knew that the dog could be considered a danger, but he was a responsible owner and handled the dog accordingly. The dog was always on a leash or fenced in at home. He had “beware of dog” signs up around his house. The neighbors were told of the incident.

Our policy holder’s next-door-neighbor was pretty much an idiot (just my opinion). The neighbor had a small son who could sit up and crawl, but could not walk yet. One summer afternoon, our policy holder had some friends over for a small backyard barbeque. All of the friends present were familiar with the dog. Our policy holder put the rotweiler on a short leash and tied the end around a tree so that the dog had only a couple of feet to move around. By all accounts, the dog was happy to be with people and just went to sleep in the sun.

The neighbor was not specifically invited, but he came dropped by anyway. He brought his little son with him. The neighbor went and sat his little son down right beside the dog, within inches of it. Our policy holder said “You don’t want to do that. You know he could bite.” The neighbor said, and he admitted this; “Oh, I don’t want him to grow up being afraid of dogs.” He moved over to stand beside our policy holder at the grill. Most of the people present watched as the baby turned and leaned over to hug the dog. They also watched as the dog turned and bit down on the boy's shoulder, ear and the side of his face.

I’ll spare you the specifics of the medical treatment and plastic surgeries. In short, this little baby boy was left with shoulder and facial scars. He did not lose the ear, which surprised even his doctor. I’m pretty sure that he is growing up with a fear of dogs, in spite of his dad’s misguided attempt to teach him otherwise.

This is how the Assumption of Risk rule applied to this case: the misguided dad (I am being kind) was obviously negligent in sitting “junior” down right beside the sleeping dog despite knowing that it had bitten before, and despite being warned that it was a bad idea. He was told that it was a risky act. The policy holder was negligent in not being more adamant in his warning, or just removing the dog from the situation. Fortunately for the child, his father’s negligence could not be imputed (transferred) to him; his dad put him in a situation that he might not have chosen for himself. The dad assumed risk, but the child was not in the position to do so himself.

We ended up paying our insured’s liability policy limits to settle this child’s personal injury claim. In order to keep the negligent father’s hands off the money, we had the entire settlement except for what was absolutely necessary to pay unpaid medical expenses put into a Structured Settlement; an annuity that will give the child a first payment on his twenty-first birthday. The settlement had to be approved by the Court that had jurisdiction over the County our policy holder and his neighbor lived in. Even the judge shook his head at this story.

This article is approved for informational purposes and is not intended to take the place of competent local legal counsel.

This case can be used as an example for the following reason: court approved settlements for minors are public record. No names were used in this article.

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