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Children's Legal Rights

CHILDREN'S

In general, a personal injury claim under Georgia law must establish that the responsible party, or defendant, failed to exercise the standard of care for the injured child's safety that a reasonable and prudent person would have exercised in a similar situation.

This is why it is important for parents of injured children to understand their child's legal rights, including the right to take legal action against the party or parties responsible for causing a child's injury.

Establishing Negligence

In general, a personal injury claim under Georgia law must establish that the responsible party, or defendant, failed to exercise the standard of care for the injured child's safety that a reasonable and prudent person would have exercised in a similar situation.

The standard of care depends on the defendant's relationship to the child. For example, a surgeon in a medical malpractice suit would be held to the standards expected of a surgeon under like conditions and similar circumstances. If other professionals who may have liability are responsible for an injury, they would likewise be judges by the standards of their profession.

The Right to Seek Damages

Both the injured child and the child's parents have the right to seek damages from the responsible party in an injury claim. These damages include all "reasonable and necessary" medical expenses that have been incurred and all future medical expenses that can be proven with "reasonable certainty." Medical records and experts play critical roles in establishing this category of damages.

The right to recover medical costs and related expenses incurred while the child is a minor belongs solely to the child's parents. The parents may also seek a recovery for the loss of a child's services.

The right to recover medical costs and related expenses that will be incurred after the child turns age 18, or the age of majority, belongs to the child. A child may also seek to recover for:

  • Loss of future earnings, or diminished earning capacity, which the child will experience after reaching age 18
  • Temporary and/or permanent injury
  • Temporary and/or permanent impairment of any bodily function
  • Past and future pain and suffering (including physical pain and mental anguish)

Depending on the facts of an injury case, punitive damages may also be available. These damages are intended to punish a defendant and deter future similar conduct, but require a higher burden of proof.

A child’s legal claim must be filed by either a parent – acting as a "next friend" of the child – or by a representative that has been appointed by a court to serve as a conservatorof the child's property rights.

The child's legal claim and the parents' legal claim may be pursued in the same legal action or in separate claims.

Statute of Limitations

There are different time limits for different types of claims. An injured child's legal claim generally must be filed within two years of the child's 18th birthday. The two-year timeframe is due to Georgia's statute of limitations, which bars legal action after a designated amount of time. Because the child is below the age of majority, and cannot file a lawsuit in his or her own name, the statute of limitations is “tolled,” such that it will not start to run in cases of childhood injury until the child reaches the age of majority.

Shorter time limits may still apply when the child injury involves medical malpractice, or when it arises from other specific causes. For this reason, it is critical that an attorney be consulted promptly after an injury occurs, so a determination can be made as to the time limits applicable under the unique facts of that case. It is not appropriate to just assume that the child’s claim can be brought when the child reaches age 18. It should also be noted that the 2 year statute of limitations applicable to the parents’ claim for medical expenses is not tolled, but starts to run immediately from the date of the tortious conduct which caused the injury.

Children and Comparative Negligence

Under Georgia law, contributory negligence by a plaintiff can serve to limit or even prevent a recovery. If an injured party is found to be 50% or more at fault in causing their injury, then no recovery can be had. If the injured party is found to be only 49% at fault in causing their injury, that party’s recovery is supposed to be reduced to 51% of the full value of the injury. This is intended to reflect a reduction in the award to account for the plaintiff’s share of the fault.

When the injured person is a child, different rules apply in evaluating contributory or comparative negligence. Under Georgia's "tender years" doctrine, a child up to age 4 is deemed to be incapable of negligence or of assuming risk. Beyond the age of 4, the child's contributory or comparative negligence is assessed based on the individual child's maturity and ability to exercise care for themselves. This means a jury will have to decide whether children over the age of 4 were comparatively negligent in causing the injuries they suffered and if so, what proportion of the responsibility they should bear.

Attractive Nuisance Doctrine

The "attractive nuisance" doctrine may be an issue in a child injury case – specifically those that involve premises liability. Generally speaking, a property owner owes no duty to protect trespasser from suffering harm on his or her property. The property owner only has a duty to refrain from willfully or wantonly harming the trespasser.

However, if the property has an “attractive nuisance” such as a swimming pool or trampoline, Georgia law does impose a duty on the property owner to take reasonable steps to ensure the hazard is not accessible to children. A property owner may be liable if a child – even a trespasser – suffers an injury due to the owner's failure to live up to this duty.

Settling a Child Injury Claim

In many cases, personal injury claims are settled out of court. Sometimes settlements are reached before any action has been filed, but pretrial settlements are more commonly reached after a lawsuit has been initiated. This may happen when it becomes clear that liability or fault rests on the defendant, or when the injury is severe. Sometimes clear liability and potential damages exposure make it important for insurers to explore settlement options to protect their insureds.

In Georgia, a court must approve any minor’s personal injury settlement in excess of $15,000. If the proposed "gross settlement amount" is more than $15,000 after attorney fees and litigation expenses are deducted, then the child's parents or a "natural guardian" must petition the Probate Court to be appointed as legal conservator and must obtain approval of the settlement from the appropriate court.

For a proposed gross settlement that amounts to $15,000 or less once litigation costs and attorney fees are deducted, the child's natural guardian does not have to be appointed the child's legal conservator, but still must obtain approval of the settlement from the appropriate court. A gross settlement amount of $15,000 or less from the start does not require court approval. Due to the complexity of the rules regarding settlement of minors' claims, parents should seek the guidance of an experienced attorney before any settlement is accepted to ensure proper compliance.

Protect an Injured Child’s Rights in Georgia

The lifelong expenses, pain and suffering caused by a serious childhood injury or death can be devastating to the injured child and his or her family as a whole. While nothing can be done to turn back time and erase the pain, or undo and permanent injury or disability, Georgia law recognizes the need to make both child and family whole financially. It is important for parents to understand their child's rights in case the unthinkable happens so they will know how to take appropriate action.

PARENTS'

If your child has been seriously injured because of another's negligence, you have the right under Georgia law to seek compensation for some types of damages.

To be eligible for compensation, you would need to establish that the defendant failed to exercise the standard of care for your child's safety that a reasonable and prudent person would have exercised in a similar situation. You would also need to show that the defendant's negligence directly caused the child’s injury.


Who Can Be Liable for a Child’s Injury?

Georgia has a statute of limitations that requires most personal injury claims to be filed within two years from the date of injury (or within two years of the death). This general time limit applies to most legal claims you would bring as a parent based on an injury your child has suffered. (The child, on the other hand, would have until his or her 20th birthday to bring claim. However, in most cases, it is advisable to file the child's claim at the same time as the parents' claim.) There are, however much shorter time frames which apply to some claims, such as medical negligence cases. There are also other specific types of claims with deadlines before a child reaches majority. To be certain of the correct deadline, parents of injured children should consult with an attorney promptly after an injury has occurred to ensure that valuable rights belonging to both the parents and the child are not lost because of a delay in pursuing the claim.

A parent’s lawsuit based on injuries suffered by a child may seek to recover two types of damages:

  • Medical expenses
    The parent may seek to recover both past and future medical expenses. The expenses must be shown to be reasonable and necessary and directly caused by the child's injury. The parent "owns" the right to pursue these damages through the child's 18th birthday. Any future medical expenses expected to be incurred after the child's 18th birthday would be part of the child's claim relating to the same injury, and cannot be claimed by a parent.
  • Loss of the child’s services
    This amount is based on the services a child would typically provide in a normal parent-child relationship.

It is important to note that in addition to any future medical expenses that will be incurred after the child's 18th birthday, the child would also "own" the right to recover for permanent injuries, lost earning capacity and pain and suffering. All of these types of damages must be pursued in a separate legal claim brought in the child's name or on his or her behalf.


Damages Parents Can Seek in a
Personal Injury Claim

If a child has died as the result of the negligence of another, there are three types of claims:

  • Expenses
    In this claim, parents may seek to recover all reasonable and necessary medical, burial and other expenses they have incurred as the result of the injury leading to the child's death.
  • Estate Claim
    The child's estate has a right to recover for all damages the child could have asserted if he or she had survived, including a claim for pain and suffering.
  • Wrongful death
    The parents have a statutorily established claim to recover for the "full value of the life of the child," including the loss of the child's services and loss of earnings. Factors that may be considered are the child's age, gender, health, normal life expectancy and likely educational achievement. The child's intangible loss of the enjoyment of life due to the premature death may also be sought. Under Georgia law, parents generally may not seek to recover for loss of consortium or the mental anguish or emotional distress they have experienced, although there are some very narrow and limited circumstances when such a claim may be allowed, depending on the particular events which led to the death. Additionally, punitive damages are not available in a wrongful death claim.

As noted earlier, many personal injury and wrongful death claims are settled out of court when it becomes clear that liability or fault probably rests with the Defendant, or when it has become clear that the Plaintiff’s damages may exceed the limits of available insurance coverage. Sometimes the developed facts may make it appropriate for Plaintiffs to consider the value that a compromise may hold for a child or family facing severe injury. At an appropriate and advantageous time, an attorney can recommend exploration of settlement options. Negotiations may then take place – often with the assistance of a mediator. If these negotiations fail to result in a full and fair settlement offer, cases proceed to trial. However, even cases that go to trial may eventually end in a settlement. Each case is difference and has unique factors affecting liability and damages. An experienced attorney familiar with these issues will determine whether the case is likely settle, or to go all the way to trial.

Special Legal Considerations in a
Child Injury Case

In Georgia, the "comparative negligence" of the plaintiff may affect a damages award. If a plaintiff is deemed to be 50 percent or more at fault in causing his or her injury, no damages can be recovered. Where the plaintiff is deemed to be less than 50% at fault for causing his or her injury, the damages awarded by the jury are reduced in proportion to the plaintiff's degree of fault. A parent's negligence can factor into a recovery. Assessment of this issue in each case requires review by an experienced attorney.

However, comparative negligence is different when applied to an injured child. Under Georgia's "tender years" doctrine, a child younger than age 4 is deemed to be incapable of negligence. If the child is age 4 or older, the jury would be instructed to recognize that children mature at different rates. The jury would need to weigh the child's individual, subjective capability and whether he or she should truly be considered comparatively "negligent."

Another consideration in accidents involving children is the "attractive nuisance" doctrine. This holds that potentially dangerous fixtures such as swimming pools will naturally attract curious children. Even when a child is injured while trespassing, the owner of an attractive nuisance may still be held liable for the child's injury. Again, determining whether this doctrine may apply will require assessment of the unique facts of each case.

As a Parent, You Have Rights When Your Child Is Injured

While nothing can be done to turn back time and erase the pain after a child has been seriously injured in an accident, Georgia personal injury law recognizes the need to make the child's parents whole financially. The expenses and other impacts that a child's injury or death will cause can be devastating. This is why it is important for parents to understand their rights when the unthinkable happens.