Who Can Sue for an Injured Child?
In Pennsylvania, when a child is injured, both the child and the parents may have a claim. The law is complex in this field, but there are circumstances under which both child and parents have a right to monetary relief but it depends upon the individual situation and the facts.
There are also claims that may be brought by the injured child independently upon reaching adulthood. These claims, often for pain and suffering, disfigurement, loss of life’s pleasures, emotional distress or loss of earning capacity, must be brought within two (2) years after the child’s 18th birthday. This is called the Minor’s Tolling Act. In medical malpractice cases and certain other types of claims, there is also something called a Statute of Repose.
What is Involved in a Child-Injury Lawsuit?
In Pennsylvania, to win a child-injury lawsuit your attorney has to prove the following:
- The party at fault had a duty to exercise reasonable care in the situation.
- The party breached their duty, by doing something they should not have done or failing to do something they should have done.
- This breach of duty was a factual cause of the child’s injuries.
- The child suffered an injury deserving of compensation.
In addition, the courts may recognize that children and adults are different when considering the fault of the child. There are different standards of duty for a child depending upon the child’s age and his special needs. Sometimes parents can even be responsible for the negligence of their children. This is sometimes called negligent entrustment. This is also a complex area of the law. At certain ages, there is a presumption of non-negligence on the part of children. Minors under the age of 7 are presumed incapable of negligence. Minors between the ages of 7 and 14 are also presumed incapable of negligence, but this presumption is rebuttable and, as the 14th year grows closer, this presumption weakens.
The law recognizes that:
- Children may be presumed incapable of negligence due to their tender years.
- Distribution of settlement proceeds involves special precautions.
- A lien may be placed on a settlement for an adult who owes child support.
- Children injured while trespassing may be treated leniently, again, depending upon the particular circumstances. Pennsylvania has adopted the so called “attractive nuisance” or “child trespasser” doctrine which states that a possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition on the land if:
- The place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and
- The condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and
- The children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and
- The utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and
- The possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.
What About Insurance?
If your child has been injured, do not assume that the insurance company will be looking out for the best interests of your child or your family. Insurers will attempt to minimize the payments they make by offering to settle claims quickly for far less than they are worth.
Liens can be very complicated. Many times, insurance companies and benefits from the government or government programs may be recoverable in subrogation, sometimes referred to as reimbursement. The rules may be different for state as opposed to federal liens. This is a complex area of the law.
How do Settlements Work?
Juries, judges, and arbitration panels frequently are not as sensitive to the needs of children and senior citizens because they do not necessarily have dependents. On the other hand, the time horizon for children is longer, and part of a claim may be lost to future earnings or future earning capacity. With children there may be damages for loss of “horizon.” There are differences in how settlements are handled for minors in order to protect the best interests of the child and prevent parents or guardians from using the money for their own purposes. For this reason:
- Settlements awarded to a minor must be approved by the court. Attorneys must file a petition stating the terms of the settlement and why it is in line with the best interests of the child. The petition will also address issues such as any liens on the settlement, the age of the child, any injuries, and the present condition of the minor.
- Some courts require a hearing to question the attorney, the parents, and the child, while others will approve the petition without a hearing.
- Once the petition is approved, there are ways in which the money must be handled, according to the Pennsylvania Rules of Civil Procedure. The idea is to protect the interests of the child. Some judges will approve annuities, and others are much more reluctant so to do.
- In a death case, there must be approval from the Inheritance Tax Office.
Contact Us For Help and a Free Consultation
If your child has been in a serious accident, help is available from the experienced and compassionate Williamsport child injury attorney at Rieders, Travis, Dohrmann, Mowrey, Humphrey & Waters. We understand the local regulations and legal standards, know how insurance policies work, and can handle all aspects of an insurance claim. If death is involved, we will seek financial restitution for the family members left behind.
Our attorneys have spent decades honing his skills and successfully representing Pennsylvania families who have suffered an injury or loss due to someone else’s negligence. We offer personal attention and loyalty to every client, aggressively fighting for their right to compensation. Our deep sense of loyalty to each client drives us to pursue each claim vigorously. Whether in settlement negotiations or pursuing a favorable trial verdict, we are thoroughly prepared and committed to achieving a just outcome.
If you have been in an accident, time is of the essence, so do not delay. We offer a free consultation, so call (570) 323-8711 or use our online contact form. Based in Williamsport, we serve clients throughout the state of Pennsylvania, offering a free consultation on all injury matters. More than that, we offer you experience, knowledge, compassion, and a long history of results.