Personal Injury Claims and Lawsuits Involving Minors

At Silverman, McDonald & Friedman, we understand the unique concerns involved when representing injured children. Our personal injury lawyers have offices in Newark, Wilmington, and Seaford. We’re skilled child advocacy lawyers. We’re ready to fight for you and your child today.

Children are generally less able to explain how their accident happened than adults. They’re less able to explain their pain. They don’t understand what it means to file an insurance claim or a lawsuit. The younger the child, the more protection from parents and guardians a child needs. All of these concerns can affect a personal injury claim or lawsuit involving a minor child. We want to address some of those concerns today.

Parents and guardians file the claims on behalf of their children

As we have previously discussed, “the parent or guardian acts as the voice of the child, ensuring that they get justice and the compensation they deserve for any harm inflicted upon them.” In most cases, one or both parents file a legal claim on behalf of their child. If there are no parents or the parents are not able to file the claim (due to death, substance abuse, lack of care, or other reasons), a guardian ad litem may need to be appointed to file the claim on behalf the child. Note that in some cases, a guardian ad litem may be appointed even if the parents are the ones bringing the lawsuit. By law, children cannot file a claim in their own name until they become an adult. Tolling the statute of limitations for minor victims

Just because parents or guardians choose not to file a lawsuit on behalf of their minor child, doesn’t mean there is no case. Once that child reaches the age of 18, he or she can file a lawsuit on his or her own behalf. That is because the statute of limitations is tolled, or paused, so that the child has three years from his or her 18^th birthday to file a claim. Note: this only applies in personal injury cases, not medical malpractice cases.

Diagnosis and treatment is different for minors

The doctors who treat your child for broken bones, brain or spinal cord damage, burns, or any other type of injuries need to address a few issues that generally don’t apply to adults.

• Children, especially younger children, have difficulty communicating their pain. Doctors who work with children should be skilled at helping children explain where they hurt and what type of pain they’re experiencing.
• Young children are smaller which means when injuries occur, their injuries are likely to be more severe. Their small size can make operating on a child more difficult.
• Children are still growing. This means that the physicians who are caring for your child need to take into account that the fractured bones that they set, the internal damage they treat, the burns that require skin grafts – and all other injuries – must take into account that the child’s bones and other body parts will grow and expand as your child ages.

The standard of liability is different when the victim is a child

In some Delaware personal injury cases, insurance companies and defense lawyers try to argue that the victim is partially responsible for an accident. When children are involved, they may argue that your child did something wrong, like he wasn’t paying attention or she darted into the street.

In Delaware, children under seven are generally presumed to be incapable of negligence. The presumption is rebuttable. Children seven and older are judged by the standard of care that children of the same age and maturity would be judged. In short, this means that if your child is less than seven years old, his/her negligence is not likely to be a factor because toddlers aren’t expected to think about their safety. If your child is a pre-teen, their comparative negligence is also likely not to be a factor unless any child their age would have acted more reasonably.

Parental liability

A flip side of personal injury actions involves children who cause accidents. A common example is when a teenager drives his/her parent’s car and gets into an accident. Generally, as long as a parent gives their child permission to use their car, that parent will be liable for any accidents that their child causes.

Going to court when the plaintiff is a minor

When two adults disagree in court, they each have an opportunity to tell their story. Their testimony can be challenged during a cross examination by opposing counsel. But young children are not reliable witnesses, even to their own trauma, and some judges refuse to allow children under a certain age to be put on the stand. Even those old enough to take the stand may find the experience traumatic. For this reason, it may be worth it to negotiate a settlement that’s fair, and spare the child extra pain.

Settlements of personal injury cases involving children

Delaware requires that all legal claims on behalf of children must be approved by a judge. Even if the liability is clear and the insurance company is willing to pay the policy limits, the court must approve the settlement. If the child is still a minor by the time the settlement is awarded, then the money will likely go into trust. Once the child turns 18, he or she can access those funds. Our Delaware personal injury lawyers understand how to negotiate claims on behalf of children and how to obtain court approval for any settlements.

Call the Delaware personal injury lawyers at Silverman, McDonald & Friedman to discuss how we can protect your child if your child suffers any type of injury. We have the experience and resources (including relationships with child physicians) to represent children. Most personal injury cases involving children do settle. Schedule a free consultation by calling us or completing our contact form. We meet clients at our offices in Wilmington, Newark, and Seaford, Delaware.