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Injuries To Children In California

Posted by Russell S. Kohn, Esq. | Apr 27, 2015 | 0 Comments

Injuries to children (aka minors) present many special legal issues and requirements that differ from cases involving adults. This article addresses some of the unique issues involved in claims for injury to minors. Generally, due to their active daily routine, children are more susceptible to injuries than the average adult. It is very important to have an attorney involved in cases pertaining to children because these cases usually cannot be settled without petitioning the court for approval of the settlement.

Liability Issues in Children's Injury Claims Children are not held to the same legal standards of behavior as adults for determining negligence. Whereas, an adult is held to the standard of an ordinary reasonable person, a child is only required to use the amount of care that a reasonably careful child of the same age, intelligence, knowledge, and experience would use in that same situation. See CACI 402. Also see Daun v. Truax (1961) 56 Cal. 2d 647, 654, 16 Cal. Rptr. 351, 365 P.2d 407, and Cummings v. County of Los Angeles (1961) 56 Cal.2d 258, 263, 14 Cal. Rptr. 668, 363 P.2d 900.

It should be noted that children under the age of five are incapable of committing negligence as a matter of law. Christian v. Goodwin (1961) 188 Cal. App.2d 650, 655, 10 Cal.Rptr. 507.

Court Proceeding Issues in Children's Injury Claims In California, minors can only enforce their legal rights in a civil case through a guardian ad litem. A guardian ad litem is an adult who the court appoints to pursue a civil case on behalf of a child. The guardian ad litem is a ‘guardian” of the child's rights. Most often, the court appoints the child's parent as the guardian ad litem.

California has unique laws relating to time limits to file civil actions for minors. In most cases, the statute of limitations clock starts when the child reaches 18. This means, for example that a child injured in a traffic collision could wait until two years after his or her 18th birthday to begin an action. (CCP §352) There are many exceptions to this general rule that shorten the time limit to file a lawsuit, such as in cases for medical malpractice and cases against government entities. Therefore, it is wise to promptly consult with an attorney knowledgeable about claims for injuries to children. Such consultations with the Kohn Law Office are free of charge.

There are numerous special time limits on children's claims currently in effect. For example, when a child is injured before or at the time of birth, the lawsuit (other than medical malpractice suits) must be filed within 6 years of birth. (CCP §340.4) A minor's medical malpractice lawsuit must be initiated within three years of the act of malpractice, or within one year after the parents discovered, or should have discovered, the injury unless the child is under 6 years old. If the child is under 6, the lawsuit must be initiated within three years or prior to the child's eighth birthday, whichever period is longer (CCP §340.5) Lawsuits alleging child sexual abuse generally can be brought until the person is 26 years old or until three years have passed since the person discovered, or could have reasonably discovered, that his or her injuries were related to sexual abuse, whichever period is longer. (CCP § 340.1)

Interestingly, the courts must give preference in trial setting to litigants who are under the age of 14. As stated in Code of Civil Procedure section 36(b) “A civil action to recover damages for wrongful death or personal injury shall be entitled to preference upon the motion of any party to the action who is under the age of 14 years unless the court finds that the party does not have a substantial interest in the case as a whole.” This statute makes it mandatory to give trial preference. See Peters v. Superior Court (1989) 212 Cal.App.3d 218, 223-224, 260 Cal.Rptr. 426. The court must set the case for trial within 120 days after the motion for preference is granted. The policy reasoning behind mandatory trial setting preference for minors is to ensure timely access to courts by children under 14 who have suffered personal injury or parent death. See Peters v. Superior Court, supra, 212 Cal.App.3d at p.226.

Settlement issues in Children's Injury Claims In California, a judge must usually approve the settlement of any child's claim. If the child does not have assets over $5,000, including the settlement payment, then the law allows payment of the settlement funds to the child's parents or legal guardian. Most insurance companies will insist on court approval if the gross settlement amount exceeds $5,000, even if the child's net recovery is less than $5,000 after reductions for attorney fees, costs, and medical expenses.

To obtain court approval of a settlement of a child's claim a lengthy, detailed petition must be filed with the court. Then a hearing is usually held before a Superior Court Judge at which the child and the child's parent or guardian must appear. The Judge must determine that the settlement, as well as the distribution of the proceeds, is in the best interests of the child. The Judge will usually require that the settlement proceeds be held in trust for the child until after the child reaches 18 years old. This is usually accomplished by placing the funds into a blocked bank account. Some larger settlements are placed with an annuity company to pay out after the child turns 18, in order to achieve a higher rate of return on the funds, and to provide for a specific payout stream. If the preservation of government benefits such as Medicaid is important, the consideration should be given to placing the settlement funds into a special needs trust.

About the Author

Russell S. Kohn, Esq.

What Makes Attorney Russell S. Kohn Uniquely Qualified To Represent You? As the founder of the Kohn Law Office, Attorney Kohn has limited his practice to representing injured victims in car accidents, wrongful death, and premises liability matters since 1987. Mr. Kohn is a lawyer for people, and...


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