Texas Dog Bite Lawyer Addresses Settlement of a Child’s Dog Attack Claim and a Related Dallas Court of Appeals Opinion
Wednesday, July 20th, 2011
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There are several issues that come into play when settling a child’s personal injury claim resulting from a dog attack. A July 19, 2011 Dallas Court of Appeals opinion regarding settlement of a Dallas-area minor’s dog bite claims illustrates some of these issues.
In Texas, a minor bringing a lawsuit generally must be represented by what is called a “next friend.” A “next friend” is a competent adult who can adequately represent the interest of the injured minor. In most cases, the next friend is the minor’s custodial parent. However, as was the case in the case leading to the above-described Dallas Court of Appeals’ opinion, other relatives and/or competent adults may serve as next friend for a minor in a dog bite lawsuit.
In the Dallas case, a child was seriously injured in a dog attack while visiting the home of two people who allegedly owned, harbored, or kept the attacking dog. The injured child’s mother and aunt filed suit against the defendants. The injured child’s aunt was also the child’s conservator.
The injured child sued for medical care, physical impairment, disfigurement, pain and suffering, and mental anguish suffered as a result of the dog attack. The child’s mother and aunt sued for past and future medical expenses, and the child’s mother also sued for “special and consequential damages.” Both the trial court and the Dallas Court of Appeals found that consequential damages were not recoverable under the evidence in the case. The child’s aunt and conservator sued for what is termed under Texas law a “bystander claim,” and she sought damages for mental anguish, pain, and suffering occurring as a result of her witnessing the dog attack. In certain circumstances, a family member of a person injured as a result of a dog attack can sue for mental anguish experienced as a result of witnessing and/or being contemporaneously aware of events causing an injury.
The parties resolved all claims by signing a settlement agreement. The injured child recovered a certain dollar amount pursuant to the settlement agreement, the child’s mother recovered nothing, and the child’s aunt recovered money damages for her bystander claim. Moreover, the settlement agreement provided that Medicaid would be reimbursed for amounts it apparently paid for medical care required as a result of the dog attack.
Texas law provides that, when a conflict of interest exists between a “next friend” and a child related to a settlement, a court may appoint a guardian ad litem to represent the interests of the settling child. The guardian ad litem advises the court as to the guardian ad litem’s opinion regarding any proposed settlement. In the Dallas dog bite case, the court appointed a guardian ad litem to represent the injured minor. After considering the guardian ad litem’s opinion, and other evidence offered at one or more hearings, the court modified the proposed settlement in a manner the court believed to be fair and appropriate. The child’s aunt, individually, and the child’s mother, as next friend of the child, appealed the trial court’s settlement determination. The Dallas Court of Appeals determined that the trial court’s decision regarding settlement of the child’s dog bite claims was appropriate.
It is important that a dog bite lawyer handling an injured child’s claims work with any court-appointed guardian ad litem to assure that any proposed settlement is fair and to inform the court of any necessary information.