If you're the parent or guardian of an injured child, you may be wondering what to expect when filing a personal injury lawsuit. Unless the child is emancipated, the rules for these types of cases are quite different for minors. Your lawyer will fill you in on the details, but here are three things you should know.
1. Children Cannot File Their Own Personal Injury Lawsuits
In the eyes of the court, children are under a disability and cannot file a personal injury lawsuit themselves. Most states do not allow children under the age of 18 to negotiate their own claim, even if they appear competent to do so.
The child's parent or next of kin can file suit on behalf of the child.
2. Trespassing Rules are Different for Children
Children are held to a different standard than adults in personal injury cases. If an adult injures himself while trespassing on property, he would have a hard time winning a claim. But if a child injures herself while trespassing, the property owner may be held liable for injuries.
If a child drowns in a neighbor's swimming pool, the neighbor may be responsible for damages because he forgot to put a fence around the pool.
In cases involving children, the child's negligence is determined by his or her age. Children under the age of 6 typically can't be considered even partially negligent.
Even in cases involving children, there must be proof that the other party was negligent in some way.
Here's what Cogburn Law Offices has to say about personal injury cases:
"In order to pursue a personal injury claim, the injured party must show that the defendant is liable by proving the following: The defendant owed the plaintiff a duty of care; The defendant did not comply with his or her duty of care; The plaintiff suffered injuries as a result of the defendant’s actions or inaction; The defendant’s failure to comply with his or her duty of care was the proximate cause of the plaintiff’s injuries."
3. The Statute of Limitations is Longer for Children
Injured victims have a certain window of opportunity to file a personal injury lawsuit. The statute of limitations for adults is typically two years. For children, the statute is their 20th birthday.
The two-year window doesn't open until a child's 18th birthday, so the child has until the time of the injury through his or her 20th birthday to file suit.
The one exception to this rule is if the child is legally emancipated, which means the child has gone through the court system to become a legal adult. The rules may vary slightly from state-to-state, but they're generally the same.
Take Virginia's law as an example. If the child is emancipated before the injury, he has two years to file suit. If the child is emancipated after the injury, he has two years from the date of emancipation to file suit.
But just like with any other injury, it's typically better to file suit sooner rather than later. The more time that passes, the more difficult it will be to prove the case.