An injured child is a parent’s worst nightmare. In addition to medical bills there’s an emotional trauma that money can’t ever set right. Children under the age of eighteen can’t file lawsuits on their own – it is up to their parents to ensure that justice is served and that the guilty party pays for what he or she did. A personal injury lawsuit may seek damages that cover things like physical therapy, psychological therapy, and counseling necessary for the child to fully recover from the injury. It may, in some circumstances, also seek damages for mental health treatment that the parents of the injured child require to cope with the aftermath of the tragedy.
Recall that one of the issues in a personal injury claim is Florida’s law aboutcomparative negligence. When an adult sues forpersonal injury, the other side is very likely to argue that the injured person failed to take adequate precautions or in some other way contributed to their own injury. From a tactical point of view, this argument may convince a jury to rule against the plaintiff, or at least reduce the dollar amount of the damage award. Remember that the defense will probably do everything in their power to portray the injured person as someone who is attempting to “Cash in” on their injury by suing someone who isn’t really at fault.
Children under the age of eighteen get special protection under law. In essence, the law views them as less responsible for their own actions, and thus, less able to be negligent. The exact degree of this protection is a fact-sensitive question that very much depends on the age of the child and other factors such as disability or medical conditions. Interestingly, juries also tend to be more sympathetic towards injured children, there seems to be less of the “They’re just trying to cash in” sentiment. As a result, juries are more likely to return large awards for children than they are for injured adults.
With all this in mind, winning a personal injury claim on behalf of a child still presents quite a few challenges. The main challenge is, as you can probably guess, insurance companies! Insurance companies know full well that children generally get bigger jury awards than adults. They also know that every cent they pay out means a smaller bonus for their executives. Thus they are even more aggressive, if that’s even possible, at litigating these cases.
Experienced attorneys know that a trial is often kind of like a bizarre play or theater. There is a certain universe of facts, but each side struggles mightily to place their own interpretation onto these facts. In fact, if something is unclear or unknown, it gives a great deal of leeway for one side to just “Make things up” (subject to all applicable laws, of course.)
For instance, one of the most common child injury cases is a child being struck by an automobile. The auto insurance company defending the motorist will always use the “Dart-out” defense. “Yes, honored members of the jury, the child just darted out into the street. My client had absolutely no chance to avoid the accident.” This phrase very strongly suggests that the child was to blame, and is intended to influence the jury. A plaintiff’s lawyer would say that the driver struck or knocked down the child.
Thus the most important thing to do when your child is injured is to take photographs that may be used at trial to counter the “dart-out” defense. Photos of the accident scene, the neighborhood it occurred in, any skid marks or debris, and especially anything that indicated that the motorist should have been on notice that children were present. A nearby school, playground equipment, road signs warning of children at play, “Deaf child” signs, ice cream trucks, shops and any other indicator of the presence of children should be immediately documented. Even the fact that the accident occurred in a residential neighborhood could be significant. Any of these items would serve to elevate the duty of care of the driver. It is just common sense: people know to drive more carefully when children are around.
Any suggestion or proof that the child was or should have been visible to the driver for more than a second or two will dramatically help your case. Eyewitnesses MUST be documented for the exact same reason. In some circumstances, accident reconstruction experts or eyewitnesses may be able to demonstrate that the driver was speeding or did not obey a traffic signal, further building the case for at least negligent infliction of injury.
Another common scenario is the “Attractive danger.” This is a situation where a child is injured by something in or near an area where children are likely to go. A playground with a broken monkey bar that cuts a child is an attractive danger. So is dynamite left at a construction site near a field where children are known to play! The owners or caretakers of the property owe a duty to take adequate security measures, knowing full well that children often get into places where they shouldn’t be. Warning signs typically are not enough, adequate security measures are generally locks and chains.
Informing yourself about what to do in the tragic circumstance that your child becomes injured is important, because it gives you a solid foundation of knowledge before you are called upon to act in a very stressful and upsetting time.