Lawsuits Involving Minors
Nothing is more devastating to a parent than their child being injured due to the negligence or recklessness of someone else. If this does happen, parents need to be aware of the legal options they have available to them. Burkhart and Burkhart is a Walla Walla law firm experienced in handling personal injury cases involving minors.
Personal injury cases for minors and children are handled differently from adult cases. This page explains some of the differences.
The time limit for a child to start a suit can be extended. The statute of limitations is different for a child than for an adult case. In an adult personal injury case in the state of Washington, the statute of limitations is typically three years. In most minor cases this three year time limit may not start until the minor turns eighteen. Note: The specific application of the statute of limitations varies based on the facts and circumstances of each particular case.
A child cannot file their own personal injury lawsuit. Since a child under the age of eighteen is defined as an “infant” in many states, and an “infant” is considered to be incapacitated, a child is not able to file a lawsuit in their own name. So if a child has any type of personal injury case, he or she must file a suit via an adult person, usually a parent or legal guardian.
The claim for medical bills for treatment of the child belongs to the parent. Since a child is unable to pay his or her own medical bills, these bills cannot be included as part of the damages in the child’s claim. The parents or guardians are responsible for filing a claim to receive compensation for their child’s medical bills. They can file this lawsuit with the child in the same action or they can file a separate lawsuit. If the child’s and parent’s cases are tried together, the fact finder may issue two separate verdicts, one for the child’s claim and one for the parents’ claim.
Children are not held to the same standards as adults. In most personal injury cases the key theory of liability is negligence. If the defendant is found to be negligent, he or she can try to prove that the injured party was also being negligent. If the injured party is found to be negligent as well, it is called contributory negligence. The standard of contributory negligence for children is different than it is for adults. Depending on the age of the child and state guidelines, a child may be found or presumed to be incapable of negligence. However, a child may also be found negligent if he or she is capable of understanding the risk of his or her actions and did not conform to that of a reasonably prudent child of his age and maturity.
A settlement of a suit or claim may require court approval. Because children are considered to be under a disability, court approval is required for most settlements compensating or resolving the claims of minors. When court approval is needed, the approval process requires a hearing by the court to determine if the settlement is in the best interest of the child.
Upon court approval, the child will not be able to access the funds until he or she turns eighteen. If the settlement is approved by the court, the funds may be paid to the clerk of the court and be held until the child is eighteen. The court can also allow the money to be paid to a parent and held in a trust for the child. Another option for receiving settlement funds is to set up a structured settlement for the child under which payments to the child are made over time. Structured settlements can provide flexibility since the possible ways to structure a settlement are endless and are based on the needs of the child.
A guardian ad litem may be required for certain courts. Not all courts will assign a guardian ad litem to a personal injury case involving minors, but a court has the discretion to do so if the child would benefit from it. A guardian ad litem would be assigned to review the settlement to make sure it is in the best interest of the child.