Can I Bring a Personal Injury Claim on Behalf of a Child?

A personal injury claim arises when a victim is injured by another person. A child cannot file a lawsuit or a claim.

Can you bring a personal injury claim on behalf of an injured child? It all depends on certain factors. If you are a parent, you probably can assert a claim on behalf of your child.

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What to Do After the Accident Involving Your Child

If your child suffers an injury in an accident, take the following steps as soon as you can:

Seek immediate medical attention, even if your child does not seem to be seriously injured. In addition to getting your child treatment, immediate medical attention also supports your personal injury claim. An insurance company will use any delay in medical treatment against you.
Exchange contact details with any witnesses and anyone else involved in the accident.
Collect as much evidence as possible from the scene of the accident. Photograph the accident scene, including skid marks if it was a car accident. If the culprit was a defective product, keep the product, including all packaging and instructions.
Call 911, and report the injury to the manager of any public establishment where your child was injured.
Start a file where you keep all documents related to the injury. Make note of conversations you have with doctors, etc, and keep them in your file.
Don’t talk about your case with anyone but a lawyer. Especially, don’t allow the defendant or the insurance company to interview the child.
Suspend your child’s social media account for the duration of the case.

Perhaps the most important step is to hire an experienced personal injury lawyer as soon as possible. The lawyer will represent the child, not you.

If You are Accused of Injuring Your Child

If you are accused of injuring your own child, either negligently or intentionally, you cannot bring a personal injury claim on behalf of your child. In essence, you would be suing yourself, and there would be a conflict of interest. In such a case, if you are married to or living with the child’s other parent, a judge is likely to consider appointing a third-party guardian to represent your child.

Common Child Injuries

A child’s body is at least as fragile as an adult’s. There are certain injuries that harm children even more often or more severely than adults, including:

Dog bites (because small children are too young to realize when they are provoking a dog).
Motor vehicle accidents (because small children are often not properly restrained in car seats).
Bicycle accidents.
Pedestrian accidents (chasing after a ball, for example).
Birth injuries (a form of medical malpractice).
Premises liability claims such as playground injuries and swimming pool accidents,
Amusement park accidents, etc.
Recreational and sports injuries.

Many other kinds of injuries befall children as well as adults.

Child Injuries and Comparative Fault

If an adult is injured in an accident and seeks to pursue a personal injury claim, you can be sure that the defendant or the insurance company will seek to either blame the victim for the accident or assert that the victim shared fault. New York’s “comparative fault” system adjusts compensation for the accident to reflect the parties’ relative fault when an accident was the fault of more than one party.

It’s different, however, when a child is a victim, and the accident was partly the child’s own fault. Suppose, for example, that the owner of real property builds an Olympic-style swimming pool in their front yard. The child sees the swimming pool, decides to take a dip (unaware that the pool contains deep water), and drowns, triggering a wrongful death claim.

If the victim were an adult, the court would consider whether the victim’s own negligence (and trespassing) should reduce or even eliminate the amount of compensation. Courts are much more lenient when it comes to children. Depending on the age of the child, they might even rule that the child was not at fault. The judge might place the blame on the real property owner for not fencing in the pool area.

What Compensation Can I Recover for My Child?

The primary elements of a personal compensation claim typically include:

Medical care.
Future medical expenses.
Physical pain and suffering;

Emotional and mental trauma ( PTSD after a dog attack, for example);. Disfigurement;

Disability ( such as the inability to walk)..
Loss of future earning capacity.
Emotional distress.

This is not an exhaustive list. A child is entitled to compensation for all economic and non-economic damages after an accident.

Future Damages

“Future damages” could apply to more than one component of damages. A brain injury, for example, could permanently affect a child’s physical and mental development. In typical cases, you would wait until the victim had fully recovered before you filed a lawsuit, or perhaps even before you committed to settlement negotiations in earnest.

Children’s bodies are fragile while they are still developing. If your child’s injuries (including psychological injuries such as PTSD) are permanent, you will need to estimate future medical expenses before calculating the amount of damages to ask for. Direct future damages can include future medical bills, pain and suffering, etc.

If the child’s injuries will affect their ability to work in the future, you should also claim future lost earnings. Because a child has not even begun their career, these losses are large and uncertain. In the cases of both medical bills and lost earnings, you probably need an expert witness to calculate the amount you should claim.

The Statute of Limitations Deadline

The New York Statute of limitations deadline for filing a lawsuit is usually three years from the date of the injury. The deadline for child victims is different, however, because a child cannot file a lawsuit in their own name until they become an adult. In New York, a child generally has until their 21st birthday to file a personal injury lawsuit in their own name.

Nevertheless, certain exceptions exist. Deadlines are shorter, for example, if you sue the government. This could give you much less time to prepare your claim. It is very important to consult with your lawyer to make sure that you understand the deadline for filing your child’s particular claim.

Where Does the Money Go?

What happens to the money when a child wins a large personal injury claim? In New York, The court will order the money to be held in a special account until the child reaches legal adulthood. The bank will release the money to the child when they turn 18. Meanwhile, the court reserves the right to supervise the use of the money to make sure that the child’s best interests are protected.

Generally (although not always), it is the child’s parents or guardians who manage the money on behalf of a child. If they are financially irresponsible, the court might select someone else for the job. Of course, deliberately misusing or embezzling money can result in criminal sanctions.

Contact a New York Personal Injury Lawyer for Help

Even if a judge does appoint you to file a lawsuit on behalf of your child, that does not make you your child’s lawyer. Your child must have independent representation. Ultimately, that means that in the event of a dispute between you and your child, the lawyer will be professionally obligated to represent your child, not you. You can suggest a lawyer, but ultimately it is the court who will decide who represents your child. If you need legal assistance, contact or call the Law Offices of Jay S. Knispel Personal Injury Lawyers at (212) 564-2800 today and get a free consultation.