INJURIES TO CHILDREN
Question: How do I know if my injured child may have a right to be compensated for her injuries?
A good way to consider this is to ask whether the child's injuries were somebody else's "fault". Did another person or company do something they shouldn't have done or fail to do something they should have? Obviously, there are times when kids get hurt and it is really no one else's fault at all. In those situations, there will be no compensation for the injuries. On the other hand, if someone else caused the injury, there is often insurance coverage to pay for damages and injuries.
Question: My ten-year-old daughter was injured while she was a passenger in my car. The accident was entirely my fault. Can my daughter still be compensated for her injuries?
Yes, your daughter can make a claim against your own automobile insurance company. While it may seem strange that a child would bring a claim against her own mother's insurance company, this is exactly why you have been paying car insurance premiums all these years.
Question: My son was seriously injured when he became entangled in a neighbor's farm machinery. I like my neighbor and would never "go after" him. Is there anything we can do?
Yes. If the injury was your neighbor's "fault" he may have insurance covering any injuries someone might suffer as a result of his actions. Perhaps he removed a guard or carelessly placed your son in a position of danger. In Wisconsin you can sue the insurance company and not sue your neighbor. Additionally, you should investigate to see whether the accident was the result of dangerous and defective machinery. If this is the case, there may be a product liability claim to be made against the manufacturer. (Be sure to read our article discussing product liability claims.)
Question: I know that the conduct of an injured adult is examined to see if his own negligence contributed to his injuries. Can a child be negligent?
"Negligence" is the failure to exercise ordinary care. In Wisconsin, a child who has not reached the age of 7 cannot be negligent under the law. A child between 7 and 18 can be negligent for his or her own safety. Such a child is required to use the degree of care that would normally be used by a child of the same age, intelligence, and experience under the same circumstance. To have a successful claim, someone else must be as much or more at fault than the child in causing the injury.
Question: What type of compensation might an injured child be entitled to?
Typically, the most significant category of damages for a child is for pain, suffering, disfigurement, and disability. Remember that a child would be entitled to compensation for pain and suffering both in the past and in the future. If there is permanent injury, this may mean compensation for 70 years into the future. If a child has lost wages in the past or suffered a future loss of earning capacity, he or she would be entitled to compensation for this as well. Medical expenses incurred for treating a minor who has been injured are also recoverable, but normally this claim is owned by the child's parents who are responsible for the bills.
Question: How long does my son have to settled his claim?
Generally, if a person is under the age of 18 at the time of injury, he has two years from his 18th birthday to file a lawsuit or get the case settled. There are some exceptions to this, however. For example, a minor who is injured due to medical negligence has three years from the date of injury, or one year from the date the injury was discovered or should have been discovered, except that no action may be commenced more than five years from the date of injury, or by the time she reaches the age of 10 years, whichever is later. Sound confusing? One should always seek the advice of an attorney about the applicable statute of limitations in any given case.
Question: I have heard that an injured minor may have a guardian ad litem appointed. What is that and how does it work?
A minor will normally have an attorney to represent him in a personal injury claim just like an adult. In addition, his lawyer may ask another attorney to act as guardian ad litem for the minor. The duties of the guardian ad litem include oversight of the action and evaluating settlement proposals in an effort to be certain that the best interests of the minor are being protected. Any settlement proposal must be approved by the guardian ad litem. Additionally, a settlement proposal that has been agreed to by the parties and approved by the guardian ad litem must still be approved by a judge.
Question: Who gets the money if there is a settlement of a child's personal injury claim?
Out-of-pocket expenses such as medical expenses and property damage will be paid to those responsible for the related bills. This typically involves repayment to parents or health insurance companies who have paid for accident-related damages. However, any settlement funds designed to compensate a child for lost income or personal injuries (pain, suffering, disfigurement, disability) is the property of the minor. Typically, if the amount of the settlement exceeds $5,000, the funds are deposited in an interest-bearing account under court supervision. No one may have access to the money without a court order until the child reaches the age of 18. There are many variations in where the money may be deposited and the period of time funds should be paid to the minor after he or she reaches the age of 18. Each case may be different. Still, the overriding concern is that the money be set aside and made unavailable to the minor, the parents, or anyone else until the minor reaches the age of majority. Many times settlement terms are structured in a way so as to anticipate college education expenses.
Question: When should I contact an attorney if my child is injured?
Certainly the safest thing to do whenever a child is injured is to immediately contact an attorney to discuss the situation. Evidence may be lost or destroyed if there is a delay. The responsibility to take this step typically falls upon the shoulders of the parents for obvious reasons. We all want the best for our children and this is no time to close our eyes and hope it all turns out okay.
