Can a 4 year old or a 3 year old assume the risk of being bitten by a dog?

December 16, 2015 6:29 pm Published by

Greene v. Watts, 210 Cal. App. 2d 103, 210 Cal.App.2d 103 (1962)

Can a 4 year old cause his own injuries?

No

Can a 4 year old or 3 year old be held partially at fault for their own injuries?

No

Can a 4 year old or 3 year old be held responsible for causing an injury?

No

Can a 4 year old or a 3 year old assume the risk of being bitten by a dog?

No

Can a 4 year old or a 3 year old assume the risk of being injured?

No

FACTS

Plaintiff, was about 3 1/2 years of age, and his brother, was about 5 years old. Their grandmother too them to visit defendants’ home. Defendants owned a male chow dog and a female German shepherd. When children petted the dogs, Douglas Watts, the son of the defendants, told them to stay away from the rear end of the dogs. Later the same day the two visiting boys were playing with Douglas. The dogs were standing a few feet away and Plaintiff ran over to the chow and jumped on his back. Douglas called to plaintiff to stop but the chow dog bit plaintiff’s ear. The court went to trial and the jury returned a defense verdict, plaintiff appealed the decision and sought a new trial.

COURT’S OPINION

Civil Code, section 3342, imposes strict liability, but certain defenses have been recognized in the case law, and the Legislature did not intend to render inapplicable such defenses as assumption of risk or wilfully invited injury. These defenses are available in all dog bite injury claims. Under California law that a child of the age of plaintiff is, as a matter of law, incapable of contributory negligence. The reason is that a child of this age does not have the mental capacity to foresee that his conduct will expose him to an unreasonable risk. Assumption of risk is based on a different theory, but it also depends on the mental capacity of the actor. Assumption of the risk depends on the person’s knowledge and appreciation of the danger involved and his voluntary acceptance of the risk. Relying on Ellis v. D’Angelo, 116 Cal.App.2d 310,253 P.2d 675 (1953), where the court deemed a 4 year incapable of negligence. The court concluded that it knows no reason why the minimum age at which a child is deemed to have assumed the risk should be less than that established by the decisions on contributory negligence.,It therefore granted a new trial.

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