A Child's Contributory Negligence Bars a Parent's Recovery For Medical Expenses in Texas

Abstract

On May 17, 1972, Richard Dartez was swimming in the Southside Place Park Association pool. An acquaintance of Richard's, Glen Gadbois, was throwing berries toward Richard. Richard in turn would retrieve the berries and throw them back at Glen. During this activity, as Richard swam toward one of the berries, Glen threw another that struck Richard in one eye. Because of the injuries received to that eye, blindness ensued, and surgery was required to remove the injured eye. As a result of this injury, Mr. Dartez sued, as next friend, Southside Place Park Association (defendant) for negligently causing his son's injuries. Mr. Dartez also sued in his own behalf to recover medical expenses incurred in treating Richard's injury. The defendant answered with allegations that Richard was contributorily negligent. In addition, the defendant impleaded Glen alleging that Glen's negligence was the proximate cause of Richard's injury. At the conclusion of the trial, the court submitted an issue to the jury asking them to determine whose negligence was the proximate cause of Richard's injury. The jury responded that Richard, Glen and the defendant were all guilty of negligence contributing to Richard's injury. Based on this finding of Richard's contributory negligence, the trial court thereafter ordered a take nothing judgment against Richard's father, both on his suit for Richard's injuries and his own action for medical expenses. On appeal, the take nothing judgment was affirmed by the Texas Court of Civil Appeals.