A parent’s worst nightmare is receiving a call from the hospital that their child has been involved in an accident.
Although physical and emotional suffering can never be rectified by money, a lawsuit against the person at fault may be in the child’s best interests. Handled properly, this type of case generally results in fair compensation for the child.
Nevertheless, do not expect this to be simple. For example, in an automobile accident case, the insurance company typically takes the position that the child suddenly ran into the street and that the driver had no chance to react. Insurance companies refer to these cases as pedestrian dart-out cases. By applying this “label,” the insurance company hopes to create the impression that the driver had no ability to avoid the accident. Conversely, personal injury lawyers refer to them as pedestrian knockdown cases. You can clearly see the image plaintiffs’ attorneys hope to create by using that label.
Regardless of the label, the best hope for litigation success when a car hits a child is a prompt and thorough investigation of the accident scene. The vital factors include the type of neighborhood where the accident happened, the length of time the child was visible to the motorist, and the age of the child. It is critical to photograph the scene of the accident shortly after it occurs—sometimes photos will help to prove that children are likely to be present there. Nearby playgrounds, schools, or shops that cater to children should be photographed as this should alert the motorist that caution is required. Similarly, traffic signs warning motorists to watch for children must be photographed. Similar rules apply to other accidents involving children, such as injuries on dangerous property or on a playground. Again, take pictures as soon as possible and, as with other injury cases, obtain eyewitness statements.
Juries, judges, and arbitration panels have special sympathy for children. They are more likely to return large awards for children than for adults. Many feel that greed is the primary motivation when adults sue for personal injuries. When a child is injured, this factor is less applicable.
In pedestrian knockdown cases, the medical bills resulting from the child’s injuries are paid by the parents’ automobile insurer. If the household has no insurance, the driver’s insurance must pay these bills.
Kids are Different
The law recognizes that children and adults are different. When measuring children’s conduct, the courts depart from the reasonable person standard generally used to judge adult behavior. The courts make allowance for juvenile behavior and the special needs of children.
In the personal injury realm, this manifests itself in several ways:
Children may be presumed incapable of negligence due to their tender years.
Distribution of settlement proceeds involves special precautions.
A lien may be placed on a settlement for an adult who owes child support.
Children injured while trespassing may be treated leniently.
Pennsylvania law recognizes that children are not as responsible for their behavior as adults. Your state’s law may be similar. A presumption of non-negligence applies to children. The younger the child is, the stronger the presumption of non-negligence is. Minors under the age of seven are conclusively presumed incapable of negligence. Regardless of the facts of the incident, the presumption cannot be rebutted. Therefore, a six-year-old who is struck by a car will generally triumph in a suit against the driver.
However, some degree of negligence must still be attributed to the driver. Unless the child ran directly into the side of the car, and the driver had no opportunity to react, it should not be difficult to attribute negligence to the driver. If the child was visible to the motorist for even a second or two, the child’s chances for success in this litigation are quite good. The adult motorist is presumed to have the capacity to take steps to protect the safety of the child. The law requires the motorist to promptly take those steps.
Minors in Pennsylvania between the ages of seven and fourteen are also presumed incapable of negligence. This presumption, however, is rebuttable. As the fourteenth year approaches, this presumption grows weaker. Yet, even a fourteen-year-old is not held to the same standard of care as an adult.
Settlement of a Child’s Case
When an injury case involving a minor is settled, the courts often require special protection for the minor. The court is concerned that the settlement proceeds should be used only for the best interests of the child. The lawyer is required to file a petition requesting court approval of the settlement. The petition sets forth the terms of the settlement and why the attorney believes it is in the child’s best interest. The court may require parental consent as well. Other issues the petition will address include any liens on the settlement, the age of the child, any injuries, and the present condition of the minor. See Appendix 15 for a sample petition.
Some courts require a hearing so the court can question the attorney, the parents, and even the child. Other courts will approve the petition without a hearing if it appears clearly proper to do so. Once the petition is approved, the attorney or the parents set up an interest-bearing trust account. This account is virtually untouchable until the minor turns eighteen. If the minor is in dire need of funds, the attorney must petition the court for early withdrawal.
In urban areas, the court is especially concerned about parental neglect and may require that the attorney, and not the parent, be responsible for setting up the account. Since the parent cannot access the money, the court is concerned that the check may never get deposited. The court may require the attorney to file a certification attesting to the fact that the account was set up promptly after the court’s approval of the settlement.
A final protection involves the attorney’s fee. Even in states that do not ordinarily cap the percentage an attorney can charge, kids are different. The courts may severely limit the attorney’s percentage so that the child’s share is maximized. The court may also require the attorney’s fee to be calculated on the net settlement, after repayment of litigation costs, instead of the gross. This favors the child.
Child Support Liens
Your client’s injury case just settled and he is ready to hit the slots in Atlantic City. Not so fast. If he is overdue on his child support payments, that trip to the Jersey Shore may have to wait. On July 7th, 2006, Pennsylvania Governor Ed Rendell signed into law Senate Bill 1205, which involves litigation settlements and back due child support. Your state may have a similar law. To view S.B. 1205, go to: www.schmidtkramer.com/pdf/Scott-Cooper-SENATE-BILL-1205.pdf.
This law affects any settlements, judgments, arbitration awards, workers’ compensation awards, or occupational disease awards with net proceeds to the plaintiff in excess of $5,000. Before a Pennsylvania plaintiff can receive the proceeds from a settlement or verdict, the plaintiff must provide a sworn statement and documentation from the Pennsylvania Child Support Enforcement website either (1) of the amount of arrears or (2) that there are no overdue payments. An attorney that distributes funds after receipt of the sworn statement and documentation is immune from any civil, criminal, or administrative penalties if an erroneous distribution is made. If there is a non-disbursement order in effect, this law may apply even to cases in which the net proceeds to the plaintiff are less than $5,000.00.
To search for child support arrearages on the Pennsylvania Child Support Enforcement website, go to www.humanservices.state.pa.us/csws/index.aspx.
The policy behind this law is obvious. The legislature seeks to prevent adults flush with new cash from dissipating that wealth without first ensuring that their children receive the financial support they are owed.
Children Who Trespass
A trespasser is one who enters the property of another without any right or who goes outside the rights or privileges granted by a license or invitation. As a general rule, the land owner or occupier’s duty to a trespasser is to refrain from willfully or wantonly injuring the trespasser. However, foreseeable trespassers may, under certain circumstances, be entitled to greater protection. Thus, an attractive nuisance, such as an unfenced swimming pool, may subject the owner to liability if a child from the neighborhood wanders in and drowns. It is foreseeable that this might happen. Consequently, the possessor must even protect trespassers from harm in this kind of case.