Injuries to Children

Love for our children is among the most instinctive and unconditional of normal human sentiments. Children can be our greatest joy, worry and legacy. The death or serious injury of a child, who has not had an opportunity to experience life and fulfill her potential, therefore seems more poignant than a comparable injury to an adult. And, when a child's carelessness causes injury, our concern is often as much for the child who caused the harm as for the person injured.

• When a child is injured, the child and the child's parents have separate and independent claims.
• The child's claim includes physical and mental pain and suffering, and future medical expenses and income loss that will occur after the child turns 18. Lawsuits by minors must be brought through a "next friend" or a guardian ad litem. This is usually a parent, but may be someone else. In extraordinary cases, an independent fiduciary such as a bank trust department may fill this role.
• The parents' claim includes all medical and other necessary expenses related to the injury of the child up to age 18, and loss of the child's services.
• Either parent may present this claim. There may be a question of fact about which parent has actually incurred the expense, particularly when the parents are divorced or separated.
• A minor may make this claim in her own name if she can qualify as an emancipated minor, or if the parent has assigned the claim to the minor before expiration of the statute of limitation. However, this may not work if the child is too young or too mentally incapacitated to be capable of emancipation.
• Georgia law does not now recognize a claim for injury to society and companionship in the parent-child relationship.

• The two-year statute of limitation for personal injury is suspended or "tolled" until the child's 18th birthday. The effect is that actions for injury to a minor generally may be brought any time up to the minor's twentieth birthday.
• Medical malpractice is the exception to this rule. For malpractice occurring before the child's fifth birthday, the child's suit must be filed by the seventh birthday. For acts of medical malpractice occurring after the fifth birthday, the limitation period is two years from the date of the malpractice.
• For many years Georgia case law held that a parent's claim for medical expenses, etc., must be filed within four years of the date of injury, except medical malpractice claims which must be filed within two years. A muddle appellate court decision confused this with the two-year statute of limitation in medical malpractice. Therefore, it is prudent to file a suits for a parent's claim for a child's medical expenses within two years.

• The right to recover for the wrongful death of a child, who dies without leaving a spouse or child, is a single cause of action vested jointly in the parents of the deceased if they are married or living together.
• If both parents are living, but are divorced, separated, or living apart, then the right to recover is in both parents. Upon motion of either parent, the trial judge may make a discretionary allocation of the wrongful death award between the parents, considering evidence of custody, support, and any other factors the judge finds pertinent. The Court of Appeals has approved awarding as little as 0.5% of wrongful damages to an uninvolved, absentee father.
• If there is no surviving parent, then an administrator of the child's estate can bring a claim on behalf of the next of kin, such as a sibling, grandparent, etc.

• The "tender years" doctrine in Georgia common law has long established a subjective, individual standard of care for children of tender years.
• Children up to about age four are generally presumed incapable of any negligence. Recent cases leave the age cutoff for this rule unclear. However, there are cases holding that a 4-year-old is conclusively presumed incapable of negligence, and that there is no presumption as to a child who is 5 years and 10 months old. Even if a child is too young to be responsible for negligence, a jury may consider the child's conduct or knowledge, not as negligence, but as facts that may be considered concerning whether the defendant breached any duty to the child, and if so whether that was a legal cause of the injury.
• Children aged five through thirteen may be charged with their own contributory or comparative negligence, according to their subjective, individual capacity, under the tender years doctrine. Because there is no presumption as to the child's capacity, whether they are chargeable with negligence is a question for the jury.
• While it is not addressed in Georgia case law, one could argue that even a child who is immune from tort liability for damages he causes to another might be liable under a doctrine of equitable restitution.

• A minor of any age engaged in an adult activity, such as driving a car or flying an airplane, is generally held to an adult standard of care.

• Adolescents fourteen and older are held to an adult standard of ordinary care. However, there are grounds in old Georgia case law to contend that, in an appropriate case, a more flexible "reasonable adolescent" standard should be applied to teens aged 14 to 17.

• In the child's own claim, the fault of the parent or of the custodians selected by the parents is not imputable to the child. For instance, the negligence of a parent while driving is not imputable to the child passenger.
• Similarly, one parent's negligence is ordinarily not imputable to the other parent in a suit for a child's medical expenses, loss of services, or death.
• However, Georgia law allows consideration of a parent's negligence as the "sole proximate cause" of the child's injury or death. In addition, a parent's equal knowledge of a premises hazard may negate an owner's duty and breach of duty where there is no evidence of violation of an ordinance or other definitive standard.

• The attractive nuisance doctrine was developed to protect trespassing children. The attractive nuisance doctrine is another way of saying that under given circumstances the defendant is liable for the consequences of his negligence where he should in the exercise of ordinary care have foreseen that harm would result to the infant trespasser whose presence he should have anticipated.
• The Supreme Court of Georgia has adopted the five-prong Restatement rule on the doctrine traditionally known as "attractive nuisance," as follows: "A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if:
  • The place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and
  • The condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and
  • That children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and
  • The utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and
  • The possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children."
• All five of these requirements must be met.
• The attractive nuisance doctrine applies primarily to child trespassers, and establishes the minimum standard of care that a possessor of land owes to children generally.
• The attractive nuisance rule generally does not apply to dangers of fire, falling from heights, and water. However, there are numerous cases of substantial compensation where young children have been injured or killed when attracted to inadequately guarded swimming pools.

Resources

Birth Injury Guide