Greene v. Watts
| Decision Date | 23 November 1962 |
| Citation | 210 Cal.App.2d 103,26 Cal.Rptr. 334 |
| Parties | Daniel S. GREENE, a minor, by Jerry M. Greene, his Guardian ad Litem, Plaintiff and Appellant, v. Gordon WATTS and Dorothy E. Watts, Defendants and Respondents. Civ. 26038. |
| Court | California Court of Appeals Court of Appeals |
Brock, Fleishman & Rykoff, Hollywood, and Lewis Graham, Beverly Hills, for appellant.
Veatch, Thomas & Carlson and Henry F. Walker, Los Angeles, for respondents.
This is an action to recover damages for a dog bite. The jury returned a verdict for defendants, the court denied plaintiff's motion for a new trial, and plaintiff has appealed from the judgment. The facts in the record most favorable to defendants are as follows:
Plaintiff, who was then three and one-half years of age, and his brother, age 5, were taken by their grandmother to visit defendants' home. Defendants (or one of them) owned a male chow dog and a female German shepherd. When the visiting children petted the dogs, Douglas Watts, the 18-year-old son of the defendants, 'told them to stay away from the rear end of the dogs.' It does not appear that the children were given any other warning or instruction concerning the dogs, or that any attempt was made by anyone to keep the children apart from the dogs.
Later in the day the two visiting boys were in the yard wrestling with Douglas. Douglas was on his knees and the younger boys were on top of him. The dogs were standing a few feet away. The shepherd was excited but the chow was standing quietly. Plaintiff either fell or climbed off Douglas, and then ran over to the chow and jumped on his back. Douglas called to plaintiff to stop but it was too late. The chow turned and bit plaintiff's ear.
The complaint originally contained two causes of action, one on the theory of negligence and the other based on Civil Code, section 3342. At the conclusion of plaintiff's evidence the defendants moved for a judgment of nonsuit on the negligence count. Counsel for plaintiff acquiesced, and the court granted the motion. The case was then submitted to the jury solely upon the theory of statutory liability.
Civil Code, section 3342, so far as applicable, provides:
'The owner of any dog is liable for the damages suffered by any person who is bitten by the dog while in a public place or lawfully in a private place, including the property of the owner of the dog, regardless of the former viciousness of the dog or the owner's knowledge of such viciousness. * * *'
Although the statutory declaration of liability is in its terms absolute, certain defenses have been recognized in the case law. (Gomes v. Byrne, 51 Cal.2d 418, 420, 333 P.2d 754, 755.)
It appears to be settled under California law that a child of the age of plaintiff is, as a matter of law, incapable of contributory negligence. The cases are collected and analyzed in Christian v. Goodwin, 188 Cal.App.2d 650, 10 Cal.Rptr. 507. The rationale of these dedisions is that a child of this age has not the mental capacity to foresee that his conduct will expose him to an unreasonable risk.
The defense of assumption of risk is based upon a different theory, but is also depends upon the actual or assumed mental capacity of the actor. The elements are a person's knowledge and appreciation of the danger involved and his voluntary acceptance of the risk. (Gomes v. Byrne, supra.)
Baugh v. Beatty, 91 Cal.App.2d 786, 205 P.2d 671, was an action by a 4-year-old plaintiff who had been bitten by a circus chimpanzee. Judgment for defendant was reversed because of an error in the jury instructions. The appellate court said at page 793 of 91 Cal.App.2d, at page 675 of 205 P.2d:
The opinion does not discuss the question of whether plaintiff, as a matter of law, lacked mental capacity to foresee the danger or to understand it. An examination of the briefs in that case discloses that plaintiff there made no contention that the defense of assumption of risk could not be applicable to a 4-year-old.
Ellis v. D'Angelo, 116 Cal.App.2d 310, 253 P.2d 675, was an action against a child four years of age who was alleged to have pushed the plaintiff...
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