Whether walking or biking to school, or riding as a passenger in a car, any accident or serious injury involving a child is a traumatic event to both the victim and her family.  A child’s injuries can be very complex and can affect his life now and into the future, sometimes for the rest of his life.  If the child’s injury arises from the negligence of someone else, it is important to know that the law treats children differently than adults.  Let’s look at some of those differences and how they might affect your case.

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Children are held to a different standard

As I discussed in a previous blog, “Contributory Negligence – Do I Need a Personal Injury Attorney”, Virginia is a contributory negligence state.  Contributory negligence is a rule of law that holds that if two people are involved in a collision and both were negligent in causing the collision, then neither can recover compensation from the other for his personal injuries or damages.  Some attorneys call this the “1%” rule, meaning that if one person was 99% responsible for the collision and the other person was only 1% at fault for causing it, that law still holds that neither has a winnable claim.

Negligence, generally, means the failure to act as a reasonable person would be expected to act in a given situation.  Proving negligence involves, first, defining what a reasonable person’s duty is in a particular situation.  Because of youth and inexperience, though, a child is not in the same position as an adult to recognize dangers and assess risks.  Conduct that might seem unreasonable to an adult may seem not only reasonable, but inviting, to a child.  For this reason, Virginia law recognizes that when assessing whether a child’s conduct was negligent, a child cannot be held to the same standard as an adult.

For example, Virginia law holds that a child under the age of seven has not yet learned enough or experienced enough to assess the risks and foresee the possible consequences of his behavior.  So, under Virginia law, a child under seven cannot be found negligent.

Similarly, children between the ages of seven and fourteen are presumed to be incapable of negligence, but this presumption is rebuttable, meaning that evidence may be offered to demonstrate that this particular child did, in fact, possess the knowledge, experience and faculties to fairly assess the risk and discern the reasonable course of conduct under the circumstances.  A jury, then, can find a child who is between the ages of 7 and 14 contributorily negligent if they find that the child was capable of understanding the risks of his/her actions, and that the child’s conduct did not conform to that of a child of the same age, intelligence, maturity and experience.  A knowledgeable personal injury lawyer with experience handling child injury lawsuits can review your case, interview your child, and assess the facts and evidence to determine if the contributory negligence doctrine would apply.

What is the Statute of Limitations for a Child’s Lawsuit?

In Virginia, an adult must file a personal injury lawsuit within two years of the date of the event giving rise to the injury, and the clock usually begins ticking on the date of the injury.  A minor (anyone under the age of 18), though, does not have the legal capacity in Virginia to bring a lawsuit, so for a child, the statute of limitations is put on hold (tolled) until the child reaches his/her eighteenth birthday.  The child then has two years from the date of his/her eighteenth birthday (meaning until his/her 20th birthday) to file a lawsuit on his/her own.

Can a lawsuit be filed for a child before she turns 18?

Yes.  While Virginia law does not allow a minor to file a lawsuit on his own before he turns 18, Virginia law does allow a suit to be filed on behalf of a minor through the child’s “next friend.” A “next friend” can be any adult the Court deems proper but is usually the child’s parent or legal guardian.

For What Can a Child Be Compensated?

An experienced personal injury lawyer can also explain and investigate both the economic and non-economic damages that may apply to your child’s injury claim.

  • Economic damages include losses that can be calculated, including medical expenses, like ER, hospital, doctors’ , and therapy bills. If your child’s injury will affect her for an extended period of time, an experienced lawyer can also help to develop the evidence necessary to demonstrate that impact, including any loss of your child’s future earning potential.
  • Non-economic damages, though more difficult to calculate, are still very real and must be fully demonstrated and considered to ensure that your child receives full and fair compensation for his injuries. These damages include your child’s pain and suffering, mental anguish (the adverse emotions arising from the incident and the injuries), and her loss of quality and enjoyment of life, including how your child’s injuries affect her activities of daily living.

Who Gets the Compensation for the Child’s Personal Injuries?

In the case of an adult’s personal injury lawsuit, the injured person’s portion of the recovery is usually paid directly to that person in a lump sum after the settlement or verdict is reached.  In a child’s case, though, the money can’t be paid directly to the child until she turns eighteen years of age.  So where does the money go if a verdict or settlement is reached before the child turns 18?

Though a minor’s lawsuit is filed through an adult, the “next friend,” it is important to note that the claim is made on and for the benefit of the child and any compensation obtained must be used solely for the benefit of the child.

After a verdict, unless other arrangements are agreed-upon by the parties, the Clerk of the Court will hold the funds in an interest-bearing account until the child turns 18, on which date the Clerk will issue the lump sum balance to the child.

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When a minor’s personal injury case is settled, Virginia law requires that the court approve the terms of the settlement agreement to ensure that the agreement is in the best interests of the child.  Typically, the Court will appoint a guardian ad litem, usually another attorney, who will review the injuries and the terms of the settlement and make recommendations to the Court on whether or not to approve the settlement.  After the settlement is approved the funds are typically distributed in the following ways:

  • The defendant or its insurance company pays the settlement money to the Clerk of the Court and the Clerk holds the funds in an interest-bearing account until the child turns eighteen.
  • With the Court’s approval, the settlement may be paid to a fiduciary who holds the funds in trust and can pay them out over time solely for the use and benefit of the child.
  • If the compensation is large, the court may approve a structured settlement which can offer higher interest rates and more flexibility in the terms of payout.
  • If the settlement is $25,000 or less, the court may give the money to the child immediately, even if the child is under eighteen years of age, as long as the court believes that he/she is competent to manage the funds.

The Virginia state legislature passed laws in 2013 that allow the court, under certain circumstances, to give the money from a settlement or verdict to the parents to be used for the health, welfare, and benefit of the child even before they turn eighteen.  This is to make sure that the child receives the benefit of the funds, if needed, for things like specialized equipment, rehab, and other therapies.  In this case, the court may require a surety bond and annual accountings to prevent fraud.

A personal injury attorney with experience handling cases involving injuries to children can help to make sure that the compensation received is invested and paid out in a manner that ensures the best interests of the child.

About the Bergeron Law Firm

Bergeron Law is a personal injury practice serving the Northern Virginia area.  Our mission is to provide all our clients with the highest quality of legal representation and unsurpassed dedication and customer service.

Steve Bergeron understands that a successful attorney-client relationship depends on his ability to understand each client’s needs and objectives.  Bergeron Law will be there for you with the information, advice, and advocacy you need to help you get back to your life.

To schedule a free consultation, contact Bergeron Law at 703.813.6460, or visit our website at:  www.BergeronLawFirm.com