Guide to Laws for Personal Injury & Children

Recovering damages in a personal injury lawsuit
for a child

Personal injury law is based on the premise of making the plaintiff whole. In other words, if someone is injured because of another person’s negligence, the plaintiff (injured person) is entitled to be restored to the financial condition they would be in if the accident had never happened.

So, what is negligence?

Often, an accident happens because someone was careless. To rise to the level of negligence, that carelessness needs to be established through these elements:

1. Duty. Everyone has a duty to someone else at some time, which can change instantly. For example, a driver has a duty to every other road user to take reasonable care to drive safely and avoid injury. For a child, duty could be on the part of a babysitter, school, or any adult providing supervision.
2. Breach. If duty is breached, it means the negligent person did not take reasonable care to avoid harm or injury to the plaintiff.
3. Causation. The plaintiff must prove that the defendant’s action or lack of action was the reason why their injury occurred.
4. Injury. In order to file a lawsuit, there needs to be an actual injury. If your child fell off the monkey bars at the playground, you might be angry at the babysitter who was supposed to be watching them, but if the child didn’t suffer an actual injury, you don’t have a legal basis for a claim.
5. Damages. It’s devastating that your child got hurt, but the courts can only “restore” a condition with money. “Damages” are the money a plaintiff can recover through a settlement or judgment. The injury has to have cost you money in order to file a claim.

Contributory negligence

This might seem straightforward, but sometimes it isn’t. Liability can exist on a scale—in some cases, it’s not all or nothing and it’s not always tipping completely toward the defendant.

The theory of contributory or comparative negligence (also known as “shared fault rules”) determines whether the plaintiff bears any liability for their own injury.

When an injury lawsuit is filed, each party’s lawyers review evidence to determine exactly how the accident happened. This includes looking at each party’s specific role in the injury; sometimes, even if the defendant definitely caused the accident, there are things a plaintiff could have done differently in order to prevent their own injury.

For example, in a car accident case, you might have a defendant who was speeding and failed to stop at a stop sign, causing a collision. But perhaps the other driver did not break any road rules but was distracted by adjusting the climate settings in their car at the time of the crash. The court might find that the defendant is 85% liable and the plaintiff is 15% percent liable. If the plaintiff had been paying closer attention to the road (as they should have), then the accident wouldn’t have happened and they wouldn’t have been injured.

If that’s the case, any award or settlement would be reduced according to the plaintiff’s percentage of fault. The specifics vary by state (i.e. in some states, you can’t recover any damages if you have any degree of fault).

This applies to children, too—though the standard is a little different.

In general, the courts follow a reasonable person standard. The “reasonable person” standard is an objective test in personal injury cases that jurors use to determine if a defendant acted like other people would have in the same situation.

A child’s standard is compared to an average child of the same age and experience. For instance, a six-year-old’s behavior would be evaluated based on the typical and reasonable behavior of an average six-year-old.

Example: 4-year-old Alex is hit by a car. She was playing on the lawn in front of her home just before dusk when her ball rolled into the street. Alex darted into the road after it, forgetting her parents’ usual reminders to look both ways before crossing. Meanwhile, Blake is driving exactly 30 miles per hour (the speed limit in a residential neighborhood) and doesn’t see Alex because the setting sun is shining in his eyes.

The driver is at fault for the accident but Blake’s attorney argues that Alex is contributorily negligent because she ran into the street in front of the car. Alex’s family’s attorney argues that a reasonable, average 4-year-old would not remember to look both ways before running into the street and Alex therefore does not share liability.

In a similar scenario, say it was 12-year-old Carson chasing a frisbee into the road. The court would find that a 12-year-old would certainly be expected to know to look for cars before entering the roadway.

However, if kids are engaging in adult activities – for instance, high-impact sports or something similarly dangerous – courts might be inclined to treat them as adults.

This is important, particularly in a case that involves an attractive nuisance.

The attractive nuisance doctrine

An attractive nuisance is a condition that might appeal to a child who doesn’t really grasp why it might be dangerous.

Some classic examples of an attractive nuisance include:

This is related to shared fault rules because a defendant will naturally try to minimize their liability for a claim. They might say, for instance, that when the child was injured falling off a ladder on the defendant’s property, the child should not have been climbing on it in the first place.

And that might be true.

But a ladder could be considered an attractive nuisance. So, while the child was trespassing and technically caused their own injury by climbing a ladder that they were too small to climb, the court could find that it was an attractive nuisance. In other words, the property owner should have realized that an unattended ladder might be tempting to a young child if left in an area that’s easily accessible.

This would reduce the child’s contributory negligence and put the liability on the defendant, increasing the amount of the settlement or judgment the child can recover.

Types of damages for injury to a child

The basis for personal injury law is to make the plaintiff whole. In other words, the injured person is entitled to be restored to the financial condition they would be in if the accident hadn’t happened.

Devastatingly, you can’t always restore a child who’s been severely injured to their previous physical condition. Financial restoration is the best any court system can do.

When an adult is injured, the court will look at how the loss financially impacts the family. Aside from the cost of medical treatment, related therapies, assistive devices, etc., lawyers evaluate the person’s loss of income, both present and future. They would determine how much the case is worth based in part on the person’s loss of earning capacity and other factors. The courts would also conduct actuarial computations to determine the person’s likely life expectancy and the expenses expected during that time.

But it’s harder to calculate what a child’s earning capacity would be because they have no employment history to base it on. Depending on the extent of the injuries, it could also be tricky to calculate future medical needs. The child could also require special education or other therapies or programs, depending on the level of disability caused by the accident.

In general, an injury to a child could yield damages for:

• Medical treatment, including surgery, doctor and hospital visits, prescription medications, etc.
• Assistive devices like orthotics, wheelchair, home modifications and other items
• Ongoing therapies like physical, occupational, speech, etc.
• Pain and suffering
• Emotional distress or post-traumatic stress disorder
• Other costs related to education, assistance with activities of daily life, and other types of caretaking as necessary

If the accident results in injury or disabilities that would cause the child to be unable to live on their own or earn a living for themselves, those factors are also taken into consideration so that the courts can ensure that they will have a lifetime of care.

What if the child causes the injury?

Turning the tables for a moment... what if you are the victim of an injury caused by a child? This happens, too. Sometimes it’s an accident because a child used immature judgment, but sometimes kids intentionally injure others.

You can’t sue a child—they’re minors, and they also likely don’t have money or assets.

You can, in some situations, sue their parents. Most states have parental responsibility laws.

Parental responsibility laws hold parents responsible for the liability of their children.

When a child intentionally causes physical harm to a person or property, the parent can typically be held responsible for damages. Though each state’s laws vary, parents are generally liable if their child acts “maliciously or willfully.” Vandalism, shoplifting and acts of aggression are some of the common acts specifically addressed by various state laws. A plaintiff can sue the parents of a child, even if the parent was unaware that their child was going to commit a crime.

The specific act and the age of the child will be considered in determining liability, but children who are 10 years or older are generally considered old enough to consider the consequences of their own actions. When it comes to calculating damages, each state has its own restrictions. Though some states limit how much a parent or legal guardian will be responsible to pay, other states have no maximum amount.

Want to hire a lawyer and need some help?
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• Jurisdiction: Accidents that involve multiple states