Do you know what your Illinois legal options are if your child is injured because of negligence?
Children get hurt; it’s part of growing up and having life experiences. But if they were hurt because of someone’s negligence, then the Illinois courts have remedies so you can be compensated for your (and their) financial losses.
Who is the love of your life?
Maybe (hopefully) your partner if you have one. Maybe you haven’t found your soulmate yet. Or maybe, like lots of parents, the true loves of your life are your children.
The worst thing you can imagine is one of them being injured. And while anyone who loves a child hates to think about it, accidents happen in Illinois (and everywhere). Children get hurt. And sometimes a parent or guardian must rely on the legal system to make things right for them. A personal injury claim for an adult victim hinges on the traditional elements of negligence: duty, breach, causation, and damages.
However, filing a lawsuit on behalf of a child can have additional rules and wrinkles because minors can’t represent themselves in a legal action. There are additional questions regarding contributory negligence and whether (or how much) a child can be partially liable for their own injury.
How do you know if you should file a lawsuit for your child’s injury in Illinois?
There are a few first questions to ask yourself:
- Was my child actually injured? In other words, you might be upset or shaken that something happened, but if it didn’t result in actual injury, there would be no grounds for a lawsuit.
- Was the child’s injury the result of negligence? Sometimes, an accident is just an accident. Young children’s coordination and balance isn’t always as steady as an adult’s, and children don’t have the same judgment or understand caution the way adults do. They might not think to use the handrail when going down stairs, or they might just trip over their own feet—it happens.
If the answer to both of these questions is yes, you can begin considering a lawsuit.
The purpose of an Illinois personal injury lawsuit is to restore the plaintiff (injured person) to the financial condition they would be in if the accident hadn’t happened. In legal circles, this is called making the plaintiff “whole.”
For an adult, “whole” usually means damages that cover the costs of their medical treatment and related expenses, along with replacing any lost wages if they couldn’t continue to work during their recovery. It can also cover long-term wage replacement if the accident leaves them disabled to the extent that they can no longer work at all or work in the same capacity as they did previous to the accident.
For a child, “whole” could be different. Damages are intended to cover the costs of medical treatment, and they can also include expenses like special schooling if that’s required after an injury, or even losses from a total disability and being unable to ever work. It might also cover long-term special care if that becomes necessary.
Types of Illinois children’s injury lawsuits
Any accident could happen any time. But there are some injuries that tend to be more common in children.
Some examples of the types of Illinois children’s injuries that commonly lead to lawsuits include:
Falls
Falls are the leading cause of injury for children, especially those under five years old. Very young children are top-heavy, which can cause them to lose their balance. They also don’t always have depth perception and might not yet have developed a sense of when they need to use caution. Some falls result in nothing more than a skinned knee, but falls from heights—jungle gyms, climbing on furniture, etc.—can result in more serious injuries like head injuries, broken bones, and others.
Struck or trapped by an object
This might be a child trapped beneath a piece of furniture, struck by a car when the child is a pedestrian or bicyclist, struck by an object while playing (or spectating) sports, or any other number of instances.
Motor vehicle accidents
No one—child or adult—is immune from the dangers inherent in riding in cars. Accidents happen, but a child is much less likely to be injured if they are properly secured in a child safety seat that’s appropriate for their age and size.
Drowning
Sadly, drowning is a serious risk for children. This might be children gaining access to a swimming pool, lake, pond or other body of water unsupervised; it could be inattentive caregivers while swimming or playing in the bathtub; it could even be clothing or jewelry that gets caught in a pool’s drain or filter.
Dog bites
You’ve heard the saying about a dog being “man’s best friend,” but many dogs are skittish around young children, particularly if they’ve not been around them much. Even a trusted companion who has been around your child since puppyhood could snap if provoked—animals respond to their primal instincts. If a toddler or child pulls their tail, pokes at their eyes, gets too close to their food, or does something else that a dog perceives as a threat, even a dog who’s their “best buddy” can bite. Never assume that your dog is incapable of hurting your child. Your dog is an animal.
Dog bites can happen at home with the family pet or with unknown dogs outside. Teaching your child never to approach an unknown dog without their owner’s permission is important.
Medical malpractice
A medical malpractice claim can arise if the provider (doctor, hospital, etc.) negligently breaches the standard of care and treatment. The doctor might be liable if the child receives a diagnosis or treatment that causes injury or worse illness.
This includes errors in diagnosis, medication errors, surgical mistakes, premature discharge from treatment, and other injuries.
Any injury related to a property hazard would be a premises liability claim. This includes dog bites, swimming/drowning injuries, and any other fall or type of accident that involves property.
Illinois legal considerations for lawsuits involving child plaintiffs
A child (anyone under 18 years old) may not sign a contract or enter into a legal agreement. That means they can’t file a legal claim on their own. A parent, guardian, or court-appointed guardian ad-litem can file a lawsuit on the child’s behalf. If the adult is going to file for the child, they are subject to the statute of limitations, which means they have two years from the date of the injury in which to file the lawsuit.
The exception to this rule is medical malpractice. A victim has eight years to file a medical malpractice claim (including for a birth injury). This time is valid until the person is 22 years old.
However, if the parent or guardian fails to file a timely claim on a child’s behalf, the child has two years from their 18th birthday in which to do so.
If a parent or guardian wishes to obtain a settlement or verdict on a minor’s behalf, they need to petition the court for guardianship of the “estate.” Yes, a living child is considered by the court to have an estate under this circumstance. In this case, “estate” is simply a legal mechanism for holding assets for the minor. When a judge approves a settlement, the money is deposited into a bank account approved by the court. The money cannot be withdrawn without a court order until the child turns 18. At that time, they have control over their money.
If the child needs the money before they turn 18 to cover costs related to medical treatment or other expenses from the injury, the money may be withdrawn upon court approval. The person withdrawing the money must petition the court with a specific breakdown of how much is necessary and for what purpose. If the judge believes it’s in the best interest of the child, they will grant the motion. Most judges will not allow a withdrawal for “normal” expenses of childhood. It would only be permitted if the child has specific needs related to the injury in most cases. The parent or guardian would then need to show receipts to prove the money was used for the intended purpose.
Children and the Illinois Wrongful Death Act
If a child dies in Illinois, a family member may be appointed to represent the child’s estate and seek damages. If the death was caused by negligence, the deceased child’s family may receive compensation for the loss of love and support the child would have given their family through their lifetime. Family members may also claim damages for emotional suffering for the loss.
Who can be liable for a child’s injury in Illinois?
If your child was injured because of a person’s or entity’s negligence, that party could be held liable. Defendants could include a caregiver, school, summer camp, physician, property owner, driver, or any other party who has a duty to keep a child free from harm.
If the worst has happened, hopefully you can reach financial assistance to help so that you can concentrate your efforts on your child’s recovery without worrying about how you’re going to pay for it. If that’s the case, contact an Illinois personal injury lawyer today to explore your legal options for compensation.
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