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Durham v. Mason

Minor plaintiff assumed the risk of injury when he voluntarily approached and pet a leashed dog with knowledge that the dog may have bitten another boy.

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Michael Durham, through his father and next friend James Durham, sued Conney and Linda Mason for injuries he suffered when the Masons’ dog bit him. The trial court granted summary judgment to the Masons on a number of grounds, including their lack of superior knowledge about the dangerous propensities of their dog and Michael Durham’s assumption of the risk of interacting with the dog. We affirm on these two grounds.

The undisputed facts show that after school on March 5, 1998, twelve-year-old Michael Durham and his friend Steven Mason went to the Mason residence to retrieve Steven’s in-line skates so the two could go skating. Steven’s parents defendants Linda and Conney Mason were not home and the house was locked, so Steven entered through a rear window. Michael, who was already wearing his skates, entered the house as well.1 The Masons’ dog, Taz, a black Labrador mixed breed, was in the kitchen on a leash tied to the pantry door.

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