Special rules for children in Florida

Two issues often arise when the dog bite victim is a child. One is comparative negligence, namely whether the child’s conduct provoked the dog, thereby making the child a cause of the accident and reducing his recovery of damages. Florida has determined that a child under the age of six is conclusively presumed to be incapable of committing such negligence. Swindell v. Hellkamp, 242 So.2d 708 (Fla. 1970). When the child is six or older, the jury must decide whether he was capable of appreciating and avoiding the danger; if so, he can be regarded as comparatively negligent. Turner v. Seegar, 151 Fla. 643, 10 So.2d 320 (1942).

The other is whether the child’s recovery can be reduced because his parent failed to adequately supervise him, thereby making the parent a cause of the accident and reducing the compensation payable by the dog owner or other liable party. The jury is entitled to apportion fault to the parent even where the parent is not named as a defendant in the lawsuit. Y.H. Investments, Inc., v. Godales, 690 So.2d 1273 (Fla. 1997).

In cases where the parent is comparatively liable because he failed to supervise his child, but the parent is not insured, there are two important rules. If the parent is without liability insurance, then parental immunity is not waived and the child cannot sue the parent. Ard v. Ard, 414 So. 2d 1066, 1067 (Fla. 1982). Similarly, because of the parent’s lack of insurance, the dog owner or other liable party cannot make a claim against the parent for “contribution” — i.e., a claim that the parent pay some of the compensation that the dog owner had to pay to the child. Joseph v. Quest, 414 So. 2d 1063, 1065 n.5 (Fla. 1982).