RICHARD F. SILBER, PLLC
Personal Injury Cases & Minors
When an adult is injured, he or she has the legal right to bring a lawsuit or settle with the at-fault party for compensation. A child, on the other hand, does not have those same rights prior to his or her 18th birthday. When a child is injured, it is the responsibility of the parents, or legal guardian, to advocate for the child and ensure his or her best interests are protected. While the laws vary greatly state to state, there are generally some unique considerations which come into play when a minor is the plaintiff in a personal injury proceeding, these include:
The Statute of Limitations May Differ
All states impose a time limit which requires that the injured party file suit within a given time frame from the date of the accident. In many states, the statute of limitations for an injured child will be different from that of an adult and the time period may not begin until the child turns 18 (allowing him or her to bring suit on their own).
A Guardian Ad Litem May Be Appointed
Since children do not have the capacity to protect their interests in legal proceedings, some states require the appointment of a guardian ad litem. This individual must honestly represent the child’s best interests. In many states, the court will choose the Guardian Ad Litem; it is often a parent or close relative of the child.
The Parents May Also Be Able to Collect
While the compensation for injury will belong solely to the child, the parents of the child are legally responsible for medical bills and they may be able to also bring a claim against the at-fault party for compensation for these associated expenses. When this does occur, the parents’ claim is often tried with the child’s although two separate verdicts are issued.
The Standards of Care May Be Different for a Child
In lawsuits regarding negligence, the court will seek to establish whether all parties acted with a certain standard of care. This is even true of the injured party as the defendant may claim that the negligence of the plaintiff contributed to the injury. In the case of a child, he or she will likely be held to a different standard of care based on what is reasonable for a child of that age, intelligence and maturity. In some states, a child under a certain age is incapable of being negligent so a claim of contributory negligence would not be valid.
Court Approval May Be Required
Most settlements for a child’s personal injury will require court approval. Before approval, the court will generally demand that all documentation of the case along with a detailed accounting of the attorney's fee and case expenses be submitted for the judge’s review. The judge will then approve the settlement, if it is appropriate and in the best interest of the child. If the settlement is approved, the money must be deposited into a designated bank account approved by the court. The money cannot be withdrawn without order of court until the 18th birthday of the injured child. It's important to note that the parents are not entitled to this money.
Since children are seen as vulnerable members of our society, these extra legal safeguards are intended to provide additional protection. If your child has been injured, it’s imperative that you contact a seasoned personal injury attorney who can help you to better understand local laws and how they apply to your child’s case, and make sure that your child’s best interests are protected now and in the future.