University of Vermont AAHS

Dealing with Injuries to Children

by
Robert O. Dawson
Professor of Law
University of Texas School of Law

If you're in the horse business, you're probably also in the kid business. A child (minor) is a person under the age of 18. Children occupy a special place in the eyes of the law.

Dealing with the Child. A child cannot enter into a legally binding contract for the purchase of goods or services unless the goods or services are regarded as "necessaries."

For this reason, a release signed by a minor child is not binding on the child. It is voidable and the child can disavow it simply by bringing a lawsuit after being injured. In other words, its not worth the paper it is written on as a release. Smoky v. McCray, 396 S.E.2d 794 (Ga.App.1990)(release signed by fourteen year old not valid as a release).

Just because the release is not valid as a release does not mean that you shouldn't use one when dealing with a child. The warnings about the nature of the horse and the risks of horseback riding that ordinarily accompany the release can become important even when the student is a child. A child who is at least seven years of age is capable of being negligent. Therefore, if he is injured in an accident that was partially his fault (considering his age and experience with horses), he may not be able to sue successfully or, at least, the award may be reduced by the extent of his negligence compared to that of the stables. Willenbring v. Borkenhagen, 139 N.W.2d 53 (Wis.1966)(seventeen year-old was 40 percent negligent in trail ride accident).

Therefore, it is important that an employee explain to the child in language the child can understand the nature of horses and the risks of handling and riding them. r signature on the release may not operate to excuse the stables, but it would still be evidence that the child read and had the warnings explained to him. That would, in turn, be important in assessing the child's negligence or assumption of risk by conduct.

Dealing with Parents. Every injury to a minor child creates at least three possible claims: (1) by the child for the injuries (2) by the child's mother for loss of the child's services and for reimbursement of medical expenditures made by the mother on behalf of the child, and(3) by the child's father for loss of services and medical expense reimbursement.

A release signed by a mother or father may prevent only the person who signed the release from suing for injuries to the child, and may not prevent the child or other parent from suing for those injuries. Rogers v. Donelson-Hermitage Chamber of Commerce, 807 S.W.2d 242 (Tenn.App. 1990)(release signed by mother did not prevent father from suing for death of minor child).

A release signed by the minor child, her mother, and her father will at most prevent a successful lawsuit by the mother and father, but probably will not prevent the child's suit for his or her own injuries. Nothing can prevent that because the child cannot sign a binding agreement not to sue and parents in most states cannot sign away the child's rights.

Nevertheless, the warnings that accompany the release are important even when the riding student is a minor child and it is important that those warnings be given to a parent as well as the child. While it is unlikely that a release under those circumstances will prevent a lawsuit, the warnings will become very important in assessing fault for the accident should a lawsuit be filed. Bulkin v. Camp Nockamixon, 79 A.2d 234 (Penn. 1951)(permitting 10 year old camper to ride over mother's expressed disapproval was negligent).

Getting Medical Treatment for Injuries. If a minor child is injured in a horse accident while at your stable, you will want to obtain effective emergency medical attention. Whether you present the child to an emergency room or call an ambulance to transport the child, the hospital will have two concerns: (1) consent to treatment and (2) financial responsibility.

Without consent of a parent or guardian, many medical procedures that might be employed in the emergency treatment of a minor child for a horse-related accident would be" batteries," which could give rise to a lawsuit. The child is incapable legally of giving effective consent to the medical procedures. In the eyes of the law the procedures are conducted without consent and are, therefore, batteries.

Also, while a child might be able to enter into a binding contract for medical attention that is a necessary, most hospitals would be reluctant to enter into such a contract with a minor without evidence of her ability to pay. In short, the hospital wants evidence of health insurance before it treats the child.

Both parental consent to treatment and evidence of insurance can be put into the same form. Once the form is signed and notarized, it should be placed in a three-hole binder with other medical consent forms. If a child is injured, in the emergency of the moment one has only to grab the entire binder and does not have to look through individual files for the particular consent form for the injured child.

The following form would be legally sufficient in most states:

CONSENT TO EMERGENCY MEDICAL, DENTAL, OR

SURGICAL TREATMENT FOR MINOR CHILD

My name is _____________________. I am the
(mother)(father)(guardian) of ___________________, a minor
child and a riding student at ________________________________________________________.

I hereby consent to any medical, dental or surgical
treatment or procedure of an emergency nature that is
reasonably necessary to save the life of the minor child
named above or to restore the child to health.

Name of Insurance Company____________________

Policy Number________________________________

I understand that should medical emergency treatment be
required, the current insurance information listed here will
be provided to the attending clinic or hospital to cover
future payment of incurred bills.

Emergency Phone Numbers:

Phone Number / Person to Contact

___________ ____________________________

___________ ____________________________

___________ ____________________________

___________ ____________________________

___________ ____________________________

___________ ____________________________

(signed) ____________________ (date)____________

SWORN TO AND SUBSCRIBED before me this ___ day of____________, 19___.

________________________________

Notary Public in and for the State of ___________.

My Commission Expires:_________________.

The form should be signed in the presence of an employee who is a notary public and who witnesses the signature by signing the form and affixing the notary seal to it. Inmost states, becoming a notary is easy and inexpensive so there is no reason why each stable shouldn't have at least one on the premises.

In addition to the important purpose of identifyinginsurance information and persons to notify, having the parent fill out that information is powerful evidence that the form was read before it was signed.


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