Injuries to children present many special legal issues and requirements that differ from cases involving adults.  These include the following:

1.) Time issues (SOL and Trial Preference);

2.) Liability Issues (standards of Care required both by the child and owed to the  child);

3.) Court procedure (Guardian Ad Litem

4.) Settlement Issues (Court approval and structuring settlements).

1.)  Time Issues unique to children

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 18^th birthday to begin an action. (CCP §352)  It is said that “kids are made out of rubber!”  While it is often true that children heal quicker than adults, sometimes they need more time to heal. Such as when the injury causes scarring or is a fracture to a growth plate at a joint.  This longer statute of limitations means one can wait to get a final prognosis after the child is grown to see how scars and bones heal.

However, there are many exceptions to this general rule that shortens 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.

            Interestingly, the courts must give preference in trial setting to litigants who are under the age of 14 under Code of Civil Procedure section 36(b). The court must set the case for trial within 120 days after the motion for preference is granted.

2.)  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.

Also, children under the age of five are incapable of committing negligence as a matter of law.

On the other hand, adults owe children a heightened duty of care because children don't always appreciate dangers as readily as adults can.

3.)  Court Procedure Issues in Children's Injury Claims

In California, a minor child 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 unless the parent also has an injury claim for the same incident.

4.)  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 involve a structured settlement, whereby the funds are placed with an annuity company to pay out after the child turns 18.  This is done 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.

            A child's injury claim involves many unique and sometimes complex issues.  It is always a good idea to consult an attorney who is experienced in handling child injury claims.  The Kohn Law Office is one of the best child injury law firms in San Diego county and provides a free initial consultation on child injury claims, and all such cases are handled on a contingency basis where there is no fee unless there is a recovery.  If you have questions, we would love to help, so please call us at 760-721-8182.