How is a child personal injury claim different from an adult case?
Witnessing your child suffering – especially when someone else caused your child’s pain – is exceptionally hard for any parent to bear. You want your child’s hurt to go away, and you want justice and reparation. Georgia has several legal avenues in place that you can use to seek financial recovery from any at-fault parties involved in your child’s injuries.
There are certain differences between injury claims for children and those for adults that you should be aware of. We will briefly discuss several of these differences below: statutes of limitations, contributory negligence, and types of compensable damages.
Who files the claim – the child or the parents?
When a child suffers a serious injury, Georgia law provides that the parents and the child can file two claims separately. Each type of claim has its own set of rules and time lines, and each case is different.
- Parents’ claim – Either parent can make a claim to recover damages such as medical and other injury-related expenses the child has and will accrue until the child turns 18. They can also claim the loss of the child's services in the family household.
- Child’s claim – Parents can also work with an attorney to file a separate claim for the child, which can account for the child's damages such as physical and emotional pain and suffering, any lost capacity of the child to work, and future medical expenses after the child’s eighteenth birthday.
When filing a child injury claim in Georgia, claimants must bring any legal action through what laws refer to as a "next friend" or a guardian ad litem. As the parent, you may serve as your child's guardian ad litem or next friend. For more info about filing a claim, you should seek help from a local injury lawyer.
How do statutes of limitation differ between a child and adult injury claims?
Statutes of limitations are the time limits in which the law allows victims to take legal action and file claims for an injury. Most injury claims for adults have a two-year statute of limitations. In other words, adults have two years from the day they were injured or from the day they discovered their injury to file an injury claim or suit.
For most types of injury cases that involve children, however, the statute of limitations is “tolled,” or delayed until their eighteenth birthday. If your child suffered injuries in a car accident when she was 12 for instance, then the two-year time clock will not start ticking until her eighteenth birthday. So, she will have until her twentieth birthday to take legal action.
An exception to the tolling rule for child victims applies when the case involves medical malpractice. Under these circumstances, if the child is younger than seven years old, the statute of limitations does not begin until his seventh birthday. Children who are age five or over have a two-year time limit just like adults. There is also a one-year statute of limitations that applies to all medical malpractice cases, regardless of age, when it involves a foreign object left inside a patient.
How do contributory negligence rules differ for a child?
Another difference between an adult case and a child case is how the courts handle contributory negligence. When an injured adult (plaintiff) files an injury claim against someone (defendant), he has to prove that the defendant acted in a way that was unreasonable, i.e., failed to use ordinary care. If the plaintiff was partly responsible for the injury, this means he was “contributorily negligent,” and is therefore entitled to fewer damages.
With children though, contributory negligence is handled differently. Georgia courts have generally considered children ages four and younger incapable of being negligent, so contributory negligence will not apply. For older children, the courts will determine any degree of contributory negligence based on the child’s subjective, individual capacity. It is really at the discretion of the jury whether or not a child can be considered partly at fault for the accident.
What is attractive nuisance and what role does it play in a child injury case?
Attractive nuisance is a doctrine that specifically applies to premises liability cases involving children. When an injury case involves a child getting injured on someone's property, the child may have been trespassing. Trespassing generally bars injury victims from their rights to compensation for injuries. But under attractive nuisance, children may still be entitled to seek compensation.
The theory of attractive nuisance provides that if the hazardous or dangerous condition would cause (or likely cause) a child to want to enter the property, then the child cannot really be held responsible for entering the premises and is thereby still entitled to recovery. Common examples where this doctrine comes into play include those were there was a swimming pool to which a child has access because the owner did not put up a gate or cover the pool, discarded appliances, and abandoned cars.
How do damage awards differ in child and adult cases?
Generally, the types of damages that are compensable in a child injury case and an adult injury case are similar. The most common types of expenses and losses that are recovered in injury settlement include the following.
- Emergency services
- Treatments, diagnostics, and surgery
- Follow-up doctor visits
- Physical therapy
- Pain and suffering
- Psychological damages, including anxiety, depression, and post-traumatic stress disorder
One area that may differ in terms of damage awards for children and adults is for lost income. Predicting lost income potential for a child is much for difficult than it is for an adult because the child has yet to have an opportunity to begin earning a living. His potential is unknown. If your child has suffered a long-term or permanent disability, your attorney can work with other experts to calculate a fair amount for lost income.
When parents file a claim for their child’s injuries, they can personally recover all the child’s injury-related expenses that she will accrue until the child turn 18, as well as for any lost wages for the parents if they have to take time off because of the child’s injuries.
In the claim filed on the child’s behalf, if he is awarded a settlement (for pain and suffering and future damages), he will not have access to the funds until his eighteenth birthday. The courts will hold the funds in the interim to carefully preserve them.
Do I need an attorney for my child’s injury case?
There are layers upon layers of elements to address in a child personal injury claim, which can easily overwhelm a parent who is trying to tackle it on her own. In the wake of your child’s injury, it is advisable to seek counsel from an attorney to avoid mental overload and excess burden.
And fortunately, many injury firms – the Law Office of Jason Schultz included – work on a contingency basis, meaning the firm will not charge you until you receive a fair financial settlement. For a free consult with a personal injury attorney in Georgia, contact The Law Office of Jason Schultz today at 404-474-0804.