Catastrophic injuries or death to a child can devastate a family. Many injuries to children are the result of negligence. In general, children and teenagers are at high risk of serious injuries in connection with car accidents, bus accidents, fireworks or other explosives, defective toys, poisonings from household products, playground incidents, swimming accidents, and animal attacks.
If a child is seriously hurt, there may be significant medical bills, follow-up care, and in some instances, a need for lifelong care. When disabled, a child may not be able to earn a living upon reaching adulthood. Less common, but also actionable, are injuries resulting from intentional physical or sexual abuse by a caregiver.
Each state has different statutes of limitations for different types of claims. In most states, however, a statute of limitations does not start running until a child turns 18. This means that if there is a one-year statute of limitations for personal injury lawsuits in your state, and the statute of limitations only starts running at age 18, a child has until he or she is 19 to bring the suit. Different rules may apply in cases involving sexual abuse or when a child has been legally emancipated.
Separate Rights of Action
There may be two separate rights of action in a child injury case. The child has a right to pursue compensation for their injury, and the child’s parent or guardian has a separate right to pursue compensation for medical bills or other losses that they personally incurred.
In some cases, since they are responsible for the child’s medical bills and care, parents can obtain compensation to deal with the financial losses. The court may appoint the parent or another adult as a guardian for a child to bring a lawsuit in the child’s best interests, and medical expenses claims may be awarded to the parent or guardian. The child cannot receive the damages directly until he or she turns 18. In some cases, with the help of an attorney the guardian can negotiate a structured settlement in which a large damages award is paid out over a period of years.
The type of lawsuit that must be filed to recover damages depends on the type of accident. For example, if a child is bitten by a dog or suffers a drowning injury on somebody else’s property, the case may turn on premises liability laws. A teenage driver’s injuries will turn on basic laws of negligence. In all states, an adult injury victim’s failure to behave reasonably under the circumstances that contribute to injuries will reduce his or her damages. In a few states, a victim’s own negligence can be a complete bar to recovery.
When Children or Parents Are Partially Responsible for Child Injuries or Death
Child injuries raise complicated questions about what is “reasonable.” A child’s ability to act reasonably in a particular situation depends upon his or her age and maturity level. The type of analysis applied to a child’s negligence differs from state to state. In most states, courts adopt a “reasonable child” standard, such that a child is expected to act like a reasonable child of the same age, intelligence, and maturity. In other states, there may be more detailed rules strictly applied to children of certain ages.
7 or Younger
Most states do not hold children seven years old or younger liable for any accidental injuries that they cause.
In Alabama, for example, the court considers whether a child is capable of being negligent based on the child’s age. A child under seven years of age does not have the mental capacity to be negligent in Alabama and most jurisdictions. A presumption that a child does not have the ability to be negligent is applied to a child between seven and 14 years old, but this presumption can be rebutted by evidence of a child’s intelligence and discretion. Children over 14 years of age are presumed capable of contributory negligence, but this presumption can be rebutted if there is evidence the child could not appreciate a particular danger.
What if a parent’s own negligence contributed to the child’s injury? In most states, for public policy reasons, a parent’s negligence that contributes in some form to a child’s injury is not imputed to the child. In certain jurisdictions, however, a parent is precluded from recovering for the wrongful death of a child if a parent’s negligence contributed to the death.
In some cases, a lack of adult supervision at daycare, school, or a playmate’s house leads to child injuries. When a child is entrusted to another parent’s care or to a school or daycare, the adults in charge may be liable for injuries that arise under a theory of negligent supervision. In most states, if an adult knowingly accepts responsibility for a child, he or she has a duty of care to make sure the child is safe in his or her care. If the adult breaches that duty, causing injuries to the child, the child will be entitled to compensation for both economic and noneconomic damages, including medical costs, out-of-pocket costs, and pain and suffering.
If a child is seriously injured or killed in an accident caused by someone else’s negligence, his or her parents may be able to recover as a bystander for the emotional distress and pain and suffering as a result of perceiving the injury to their child. In general, a parent can only recover under the bystander theory if he or she was watching contemporaneously as the child was injured. This theory does not apply if the adult arrived on the scene as the child was going to get medical care.