“Bye, sweetie! Have fun!”
We all want to send our little ones off to play with friends, and we tend to assume that they will be safe, have a good time, and return home in time for dinner.
But that’s not always what happens.
Accidents happen—sometimes on your watch, and sometimes somewhere else. If your child is injured at school, there are various remedies based on the situation. Generally, the school acts in loco parentis, which is Latin for “in place of the parent.” You might need to use your own insurance to cover your child’s medical treatment, or there might be instances when the school’s insurance covers it.
But what if your child is injured while playing at a friend’s house?
Most parents are eager to have their children enjoy time with friends and engage in playdates. Particularly after the COVID-19 pandemic, which restricted a lot of social interactions, it’s nice to see children having friends and enjoying each other’s company. For the most part, a playdate injury is likely to be a skinned knee, a minor bruise, or something like that.
But there could be a situation when your child is seriously injured while visiting a friend’s home. What if the other parent calls and says your child could have a concussion, a broken bone, or some other serious injury—one that isn’t fixed with a Band-Aid or an ice pack?
What to do if your child is injured at someone else’s home
First, seek medical attention for your child. If the injury is life-threatening or extremely urgent, the adult in charge should call 911 for your child if you cannot get there quickly. If you can get to your child and transport them for medical care, visit a hospital emergency department, urgent care facility, or your child’s primary care provider.
If you need to file a personal injury claim against the other parent or homeowner, this medical report will be crucial. You’ll need it to prove that the child’s injuries were caused by negligent behavior or hazardous conditions that were under the control of the supervising adult (i.e. usually the friend’s parent or guardian) or homeowner.
Your own health insurance might cover the expenses related to your child’s medical treatment. You can file a claim with your insurance company and move on. If your health insurance plan doesn’t cover the medical expenses, you might need to explore other options.
Next steps if insurance doesn’t cover your child’s injuries
If your child was seriously injured in a way that could lead to expensive medical bills or ongoing treatment costs, you might need to consider filing a personal injury lawsuit.
Who do you sue?
That depends on how the injury happened.
There will be two avenues for filing a lawsuit:
- “General” personal injury lawsuit, which would be based on the defendant’s negligence that caused the injury (could include negligent supervision); or
- Premises liability lawsuit, which is when the injury happened because of a property condition or hazard.
Most situations that would result in a child’s injury while on a playdate will fall under the category of premises liability (which is part of personal injury). This type of lawsuit holds the homeowner liable for the child’s injuries.
Types of premises liability hazards to visiting children include (but aren’t limited to):
- Swimming pool
- Hot stove or fire pit
- Small toys (if it’s a young child who might put pieces in their mouth)
- Dog that has bitten people in the past
- Guns or other weapons
- Medications, cleaning products, or other household items that could be hazardous
- Pesticides, tools, household chemicals
- Slippery floors (indoors or outdoors), falling branches, uneven terrain, etc.
Most homeowners’ insurance policies will cover these types of accidents. It’s natural that you might be worried that a lawsuit could damage your relationship with the defendant, particularly if they are a friend or neighbor, or that it might affect the children’s friendship. But you can file a lawsuit against their insurance policy—rather than the friend, directly—and it should have little bearing on their financial situation.
How to pursue a legal claim for a premises liability lawsuit
For a personal injury lawsuit to result in a decision favorable to the plaintiff (injured person), they need to prove these elements of negligence:
- Duty. If a person agrees to have a child visitor at their home, they accept the responsibility of keeping them safe. That would apply even outside their home; for example, if another parent takes your child to a playground or activity, they have a duty to keep them safe as long as the child is in their care.
- Breach. A breach of duty is an action (or inaction) that would cause or fail to prevent reasonably foreseeable harm. For example, consider if your child is at a friend’s home and the parent allows them to make cupcakes. If the children have never used an oven and are too young to understand how to use it properly and your child is burned, you could argue that the parent breached their duty to keep your child safe by failing to supervise the children’s use of the oven.
- Causation. The plaintiff needs to prove that the defendant’s breach of their duty was the direct cause of the injury. In the cupcake example, if the child suffers a burn to their hand or arm because they reached into a hot oven to remove a tray of cupcakes, it’s easy to determine that the hot oven caused the burn. But it’s not always that straightforward. If the child falls on the stairs in the defendant’s home and awakens the following morning with ankle pain, it might be hard to prove that the sprained ankle is the result of falling down the stairs and couldn’t have happened any other way.
- Injury. A lawsuit requires an actual injury. If your child suffers a minor burn that’s treated with an ice pack and an over-the-counter remedy, but doesn’t require medical treatment, there’s no cause of action for a lawsuit.
- Damages. An injury is an injury, and you might be angry that it happened (particularly to your child) but personal injury law is based on the theory that the plaintiff deserves to be made financially whole, or restored to the financial condition they would be in if the injury hadn’t happened. In other words, it has to have cost you money.
Who is at fault for your child’s injury?
When you entrust another adult with supervising your child, they are responsible for your child’s safety. However, if it is a premises liability claim, that responsibility is on the homeowner.
This is why how the accident happened is important for your claim. You’ll want to ask your child exactly what happened, who was there, and what was going on at the time they were injured. Were they being supervised by the other child’s grandparent or babysitter at the time? Or was there no adult there at all?
Consider these scenarios:
- Your child went to a friend’s house to sled on a snowy hill in their backyard. As your child stepped out the door of the friend’s house, he slipped on a patch of ice on the patio and suffered a head injury when he fell. The friend’s parent, as the homeowner, had a responsibility to maintain the premises to be hazard-free. Yes, it’s foreseeable that there are icy patches on a winter day, but the person had a responsibility to use salt to melt the ice or warn the children to be careful. This would be a premises liability issue based on a hazardous property condition.
- Your child was invited to a friend’s house to swim in the family’s outdoor pool. You told the parent that your child isn’t an experienced swimmer, and the parent assured you that she would closely supervise the children while they were in the water. But, while your child was playing in the pool, the parent received a phone call and went inside the house to take it. During the time the parent left the children alone in the pool, your child suffered an injury.
Although a pool injury is a premises liability claim, you might also argue that the parent was negligent in not properly supervising the children—particularly if you specifically said that your child isn’t a strong swimmer.
Each state follows one of four contributory negligence rules. This means a plaintiff (the injured person) could receive a reduced damage award if they were at all liable for their own injury.
Sometimes this means they didn’t cause the accident, but could have taken action to prevent it and didn’t.
Children are held to a different standard than adults. In general, there’s not a set age for when a child can become contributorily negligent, but the finding is based on what would reasonably be expected of a child of the same age, intelligence and experience.
For instance, if a five-year-old is injured because they jumped from the top of a jungle gym, the argument could be made that the child did not understand that they would be likely to get hurt jumping from that height to the ground. If a 10-year-old does the same, the court could find that they are partially responsible for their own injuries because they’re old enough to understand the hazard involved in that activity.
Should you call a personal injury lawyer if your child is injured at a friend’s house?
If your child has a serious injury that will cost money for medical treatment, ongoing rehabilitation or surgery, they are experiencing extreme pain and suffering or mental anguish, or the accident resulted in permanent scarring or disfigurement, you could be entitled to compensation.
If the homeowner or responsible party’s insurance covers costs related to the injury in full and there will be no future expenses, you can likely negotiate a settlement quickly.
But if there could be ongoing or future treatment, it’s wise to contact a personal injury lawyer. Once you accept a settlement offer from the insurance company, there’s no negotiation left. You can’t go back for more if you find that it doesn’t cover all of your costs, or if there are future costs you didn’t anticipate.
Remember this: A lawyer isn’t just for filing lawsuits. You might be hesitant to contact a lawyer because you don’t intend to sue your friend or neighbor for your child’s injuries—and you don’t have to. Your lawyer isn’t there to sue your friend, or even intimidate them. Your lawyer can help you work with the insurance company (leaving your friend out of it!) to get the compensation you need to cover your child’s medical treatment and related costs.