Injuries to children caused by the negligence of others pose unique problems and require a personal injury attorney who understands the complex issues involved in representing these special plaintiffs. Children depend on others to protect them from injury and to pursue any claims that they may have. Indeed, every child under the age of eighteen is classified by New York courts as an “infant,” and deemed to be legally incapable of filing a lawsuit in his or her own name. Therefore, if a child has a personal injury claim, a parent or guardian must be the one to prosecute the claim on behalf of the child. Parents or guardians may also have a separate "derivative" claim in their own right for medical bills and time spent caring for the child's injuries as result of the same event.
Many of the rules that apply to adults who suffer personal injuries and commence lawsuits have been modified for child plaintiffs. For example, while an adult's claim for basic negligence must generally be commenced within three years from the date of the accident, a child will generally have until three years after the child’s eighteenth birthday to commence any lawsuit.
The standards for liability and contributory fault are also different for children. In New York, to succeed in a personal injury action, an injured person must prove that the party that caused the harm was negligent. However, the compensation for damages will be reduced if the injured party was also negligent in somehow contributing to their own injury. To be free from this "contributory negligence", an adult must have acted with ordinary care, as a reasonable person in the same situation would have acted. However, a child can only be held contributorily negligent if the child is capable of understanding the risks of his or her actions and the conduct did not conform to that of a reasonably prudent child of the same age, intelligence, maturity and experience. Furthermore, very young children, such as toddlers are considered incapable of contributory negligence in any circumstance.
Some defendants and their insurance companies may also try to blame a parent for allowing the child to be injured. They may claim that the contributory negligence of the parent should diminish or extinguish the compensation otherwise owed to the child. New York law now prevents this from occurring: any contributory negligence of the child's parent or other custodian may not be imputed to the child.
Any compensation recovered in a personal injury claim for a child becomes a personal asset of the child, and not the parents. All case settlements for children require court approval, following a thorough presentation by legal counsel, and a determination that the recovery is fair and adequate under the particular circumstances of the case. Any funds obtained from a verdict or approved settlement are placed in trust for the benefit of the child, typically until age 18. In situations where a child has adequate provision for his or her needs while growing up, the compensation to the child may take the form of a "structured settlement." In these arrangements, the compensation, typically in a greater amount, is deferred into the future, when it is then paid to the injured child when they become an adult. This deferred "structured settlement" compensation may take the form of a monthly annuity payment, or lump sum payments at specified ages in adulthood.
McConville Considine's litigation attorneys have handled scores of personal injury claims on behalf of children injured in accidents. Please contact Peter Gregory, Kevin Cooman, or Peter Weishaar if you have need for representation.
This publication is intended as an information source for clients, prospective clients, and colleagues and constitutes attorney advertising. The content should not be considered legal advice and readers should not act upon information in this publication without individualized professional counsel.