Children get into scrapes; here’s how a lawsuit could help
Most parents would stop at nothing to protect their children from injury. Although each parent has a different worldview and set of values when it comes to what’s “safe” and what isn’t, most can agree that a few bumps and bruises—and maybe even a broken bone or two—is par for the course in childhood.
Children are always exploring the world around them, and they notoriously have less than stellar judgment when it comes to keeping themselves safe. It takes age and maturity to make good decisions for how to handle a situation appropriately, and the courts recognize that children need to be held to a different set of standards than adults.
Sometimes injuries to children happen because of their own mistakes, or they are pure accidents, and they are no one’s fault. But kids can be victims of negligence, just like adults. If a child is injured because someone was negligent, the parent or legal representative may file a personal injury lawsuit on the child’s behalf.
We’ll take a look at what to do if your child is injured by someone’s negligence, and also how to handle a situation if your child causes injury to someone else.
How (and when) to file a lawsuit on behalf of a child
Colorado law classifies minors as “persons under disability,” which means they do not have standing to file a lawsuit on their own behalf. Only a parent or guardian can file a lawsuit for a child.
It’s also for this reason that the statute of limitations on a lawsuit on a child’s behalf does not begin to run until the person turns 18.
The statute of limitations is the amount of time a person has in which to file a lawsuit. In most instances, an injured adult in Colorado has two years from the date of an injury or accident in which to file a lawsuit. The time period begins either on the date of the accident or on the date of discovery, which is the date the plaintiff (injured person) became aware or should have become aware of the injury. If you miss the statute of limitations, the court will likely refuse to hear the case.
One exception to this rule is for a Colorado car accident. An injured person has three years following the date of a car accident in which to file a lawsuit.
Another exception is with regard to children. If a child is injured in Colorado, the statute of limitations time begins to run on the child’s 18th birthday, regardless of the date the accident occurred.
However, if your child has suffered a Colorado birth injury (i.e. an injury that happened during the process of labor and delivery), the parent or guardian has two years from the date of the injury in which to file a lawsuit. If the child has died from a birth injury, the statute of limitations is within two years from the date of their death.
What happens to the settlement or judgment in a case involving a child?
Any money recovered in a lawsuit on behalf of a child is the child’s property under Colorado law. However, the child is not permitted to personally control any compensation.
The parent or guardian is expected to act in the best interest of the child for these legal proceedings and when handling a settlement or judgment.
The parent or guardian must file a petition with the court to approve the settlement, which is called Compromise of a Minor’s Claim. The judge will conduct a hearing to determine whether the proposed settlement is in the child’s best interest. If the settlement is approved, there will be limits on how funds can be used and accessed prior to the child’s 18th birthday. Often, the funds are held in a restricted account, trust, or annuity and the court could appoint a third party to manage the money on the child’s behalf.
Colorado law allows these people to make settlement decisions on a child’s behalf:
- Either parent, if both parents live with the child
- The custodial parent if parents are apart
- The parent who lives with the child
- The child’s legal guardian or guardian of their estate
Types of damages for injury to a child
The basis for personal injury law is to make the plaintiff whole. In other words, the injured person is entitled to be restored to the financial condition they would be in if the accident hadn’t happened.
Devastatingly, you can’t always restore a child who’s been severely injured to their previous physical condition. Financial restoration is the best any court system can do.
When an adult is injured, the court will look at how the loss financially impacts the family. Aside from the cost of medical treatment, related therapies, assistive devices, etc., lawyers evaluate the person’s loss of income, both present and future. They would determine how much the case is worth based in part on the person’s loss of earning capacity and other factors. The courts would also conduct actuarial computations to determine the person’s likely life expectancy and the expenses expected during that time.
But it’s harder to calculate what a child’s earning capacity would be because they have no employment history to base it on. Depending on the extent of the injuries, it could also be tricky to calculate future medical needs. The child could also require special education or other therapies or programs, depending on the level of disability caused by the accident.
In general, an injury to a child could yield damages for:
- Medical treatment, including surgery, doctor and hospital visits, prescription medications, etc.
- Assistive devices like orthotics, wheelchair, home modifications and other items
- Ongoing therapies like physical, occupational, speech, etc.
- Pain and suffering
- Emotional distress or post-traumatic stress disorder
- Other costs related to education, assistance with activities of daily life, and other types of caretaking as necessary
If the accident results in injury or disabilities that would cause the child to be unable to live on their own or earn a living for themselves, those factors are also taken into consideration so that the courts can ensure that they will have a lifetime of care.
Colorado parents may waive a minor’s right
to sue for negligence
Colorado Senate Bill 253 (signed into law in 2003)
In most states, the court will not enforce a waiver signed by a parent to release their child’s rights to sue. For instance, if you register your child for a sports program, camp, or other activity, you typically need to sign a waiver that attempts to release the program from liability in the event that the child is injured. You might even need to do this for one-time visits to places like trampoline gyms, swimming pools, gymnastics parties, or other types of kid-friendly events.
Colorado was the first state to allow for a parent to release the minor’s right to sue for a recreation venue’s negligence.
The effect of this is that the parent must accept greater responsibility for allowing their children to take certain types of risk. The parent may sign a liability release for the child to participate in an activity that requires one.
The law says that “It is the intent of the general assembly to encourage the affordability and availability of youth activities in this state by permitting a parent of a child to release a prospective negligence claim of the child against certain persons and entities involved in providing the opportunity to participate in the activities.”
The purpose of the law is to allow children to have the maximum opportunity to participate in sporting, recreational, educational and other activities that include certain risks. It makes it feasible for recreational providers to do this without the risk of financial jeopardy.
What if you are injured by a minor in Colorado?
Colorado has a parental responsibility law. A parent is responsible for injuries their child causes to another person or property, even if it’s an accident (i.e. not intentional).
This covers bodily injury, property damage, and shoplifting. The parent could be considered negligent if they fail to take reasonable steps to prevent the child from causing foreseeable harm. If the parent is aware that the child is careless or reckless, the parent is expected to take steps to reduce risks or curb the behavior. For example, if the parent of a minor driver is aware that the teen tends to speed, but they allow the child to drive anyway, the parent could be responsible for damages if the child causes an accident while speeding.
Property damage or loss by a child
Colorado law says that, “if the minor maliciously, or willfully, damages, or destroys, property (real or personal) belonging to another,” the minor’s parents are responsible up to a maximum of $3,500 of the actual damage amount.
If you’re involved in a car accident with a minor who is at fault, you could file a claim against the minor’s parents.
The Colorado Parental Responsibility Laws also allow you to make a claim against a minor’s parents if you suffer a loss because of the minor’s shoplifting (Colorado Rev. Stat. § 13-21-107.5). The parent would be responsible for paying the value of the property and a penalty between $100 and $250. There is no limit on the amount of damages for stolen property.
What should you do if your child is injured?
If your child was injured in a way that you believe was caused by someone’s negligence, there’s help available.
However, as nuanced as the law is for adults, it’s even more so when it comes to claims involving children—regardless of which side they’re on.
Even when a child is injured because of their own actions, you might be able to find a property owner liable under the attractive nuisance doctrine.
The attractive nuisance doctrine is an acknowledgement by the law that children don’t completely understand when a condition or action could be dangerous. A property owner—even one who doesn’t have children or expect them on the property—has a responsibility to protect children from harm.
An attractive nuisance could be an unfenced swimming pool, trampoline, a refrigerator or freezer left by the curb, machines like scooters or all-terrain vehicles, ladders, fountains, or other condition that could be appealing to a child to explore without understanding the risk of injury.
If your child was injured in an accident, or if you were injured by a minor, you can contact a personal injury lawyer for advice. These conditions can be complex but if you’re entitled to financial relief, a qualified Colorado attorney can help.
Want to hire a lawyer and need some help?
Check out some of our best articles:
Need a lawyer?
See our guide Choosing a personal injury attorney.