Interesting thread – I’m thrilled to death to find non-lawyers pointing out that the McDonalds case has more to it than fist appears; I’m sick of explaining that myself.
BANTMOF – The problem was that McDonalds (1) knew that the coffee it served was WAY too hot (like burn-your-lips-off, nobody- could-possibliy-drink-coffee-this-hot hot); (2) there was a reasonable, foreseeable possibility that people would spill the coffee on themselves (as it is reasonable to expect that people will occasionally spill drinks in a drive-thru); and (3) by implication, that IF someone spilled the coffee, they might be badly hurt BECAUSE it was way too hot. With that imputed knowledge, they did exactly nothing – didn’t stop serving it in the drive-thru, didn’t turn the coffee pot down.
By analogy (and this is TOTALLY MADE UP): Gillette makes a new razor that is super, super-sharp – like sharp enough to cut your throat if you aren’t being extremely careful. They know that the razor is way sharper than necessary, and they know that people will be using it to try to shave their faces, but they do nothing – no warning, no recall. You buy one, take it home, use it the next morning (half-asleep) and accidently cut your throat and nearly bleed to death. Is that your fault or theirs?
Back to the original post: Dogs can be considered attractive nuisances, meaning that some courts will consider them to be attractive to children too young to know better, who will attempt to reach them, pet them, play with them, whatever, with no thought about safety. In such a case (as in the case of a three-year-old, for example), the dog-owners have an obligation to keep the dog penned in such a way that a young child cannot reach it – behind a HIGH fence, in a LOCKED yard, etc. If the child reaches the animal anyway and is injured or killed, it is the DOG-OWNER’S obligation to prove that he or she took reasonable measures to keep the animal away from (and inaccessible to) small children.
If you’re dealing with a child “of the age of reason,” however, the situation is changed. If a child is presumptively old enough to know that dogs are dangerous and that he or she should not be climbing fences to get into other people’s yards (as a ten-year-old assumably would be), then the burden is on the CHILD (or his or her parents) to prove that the dog-owner didn’t reasonably restrain the dog. In any event, certain dogs (including, I believe, Rottweilers) can be considered a dangerous instument that an owner must take additional precautions to keep away from others – just like a gun.
I don’t think we know enough to know the circumstances under which the dogs were destroyed – whether the child’s family demanded it or the owner just did it. If I had a dog of any variety and it killed a child (or an adult, for that matter), I’d insist that it be destroyed that very day, and I’d do it myself if necessary.
