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Unique Issues Posed By Injuries To Children

Posted by Russell S. Kohn, Esq. | Jan 03, 2022 | 0 Comments

Injuries to children (aka "minors" under the age of 18) present many special legal issues and requirements that differ from cases involving adults. Some of the unique issues posed by injuries to children include time, liability, and settlement issues. 

Time Issues

California has unique laws relating to time limits to file civil actions for minors. In most cases, the statute of limitation starts when the child turns 18. The laws are this way because it is important to give the child time to fully heal and see how the injury affects them as they enter their adult years. As children get older, their bones continue to grow, and exactly how much damage there is long-term might not be clear until the child enters adulthood. The longer statute gives the family of the child the opportunity to wait to get a final prognosis after the child is grown to see how the scars and bones have fully healed.

However, there are many exceptions to this general rule that can shorten the time to file a lawsuit, such as cases for medical malpractice and cases against government entities. If this does end up being the situation and the child's case ends up having to go to court, the court 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.  

Liability Issues

Children are not held to the same legal standards of behavior as adults for determining negligence. A child is only required to use the amount of care that a reasonable careful child of the same age, intelligence, knowledge, and experience would use in that situation. Moreover, children under the age of five are incapable of committing negligence as a matter of law. Therefore when assigning liability in cases involving children, it is important to acknowledge the parent's role as adults owe children a heightened duty of care as children don't always perceive dangers as quickly as adults can.

Settlement Issues

In California, a judge usually must approve the settlement of any child's claim. Judges will usually allow payments of the settlement funds to the child's parent or legal guardian if the child does not have assets over $5,000. 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.

In addition, a judge will normally require that the settlement proceeds be held in trust for the child until after the child reaches 18 years old. 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 for the child when they become an adult. 

A child's injury claim involves many unique and sometimes complex issues which is why it is always a good idea to consult an attorney. Kohn Law Office provides 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 any questions please give us a call at 760-721-8182.

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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