Children don’t have the same judgment as adults, and sometimes they hurt themselves (or others)
Kids get hurt. They also can do things that hurt other people. Florida law has some conditions and nuances for lawsuits involving children and personal injury.
Sometimes, it seems as though there are only two types of parents—the ones who go above and beyond to make sure every situation is safe and their children are monitored every moment of the day, and the ones who’d consider strapping their kids to the back of the car with a bungee cord and watching them bounce along for fun while they drive.
Contrary to what we see on social media (and contrary to the lure of the “mom-fluencer”), most parents are somewhere in between these extremes.
There are few things all parents can agree on, but there would likely be a consensus in any group that we want our children to be safe and avoid most “typical” childhood injuries. However, accidents happen. Sometimes, a child is the injured victim—and other times, the child causes the accident.
Here’s a look at how the legal system can help your child if they’re injured and what you can do if you’re injured because of the actions of a child.
Common types of injuries to children
Children are particularly susceptible to certain types of injuries, many of which are preventable. These include:
1. Falls from heights or tip-over accidents
Falls are the leading cause of childhood injuries that require medical treatment. Children can fall from a variety of heights and surfaces, but typically these injuries involve playground equipment like jungle gyms or falls as a result of climbing on furniture.
Anyone who has children living in or visiting their home should assess risks related to furniture accidents. The U.S. Consumer Product Safety Commission (CPSC) recommends that furniture and television sets are anchored to a wall in order to prevent a tip-over accident that could cause serious injury or death. Tall or heavy furniture like dressers, bookshelves or entertainment centers are particularly dangerous if not properly anchored.
If you have a child in your home, you should consider the following:
- Is any furniture taller than 30 inches high?
- Is the furniture stable (i.e. does it wobble or move when touched)?
- Does the furniture have drawers or protrusions that a child might use as climbing steps?
- Is the furniture in an area that’s accessible to the child?
Even furniture that doesn’t meet these criteria could be dangerous, so it’s important to carefully evaluate risks in your home.
This includes everything from burns from touching hot objects like the stove or a hot liquid to sunburn. Parents should be especially cautious of children using firecrackers, amateur fireworks, and sparklers.
3. Cuts and lacerations
Everyone gets a cut sometimes—it’s not just in childhood, it happens to everyone. But children don’t always understand how to be careful when using knives or tools or that they need to avoid touching broken glass.
Children get into things. Whether it’s cleaning products, medicines, or something they found outside in nature like a plant that’s not meant to be ingested, these things happen.
You can call the national Poison Control hotline for 24/7 advice if you or your child has ingested something
and you’re not sure if it’s poisonous: 800-222-1222.
Young children have smaller airways than adults and they aren’t always as adept at chewing food properly. Some choking accidents are related to food that’s too big or not chewed well, but other incidents are from children swallowing items that aren’t food.
Specifically, experts recommend that parents and caregivers are especially vigilant and avoid these foods for very young children:
- Chunks of meat
- Nuts and seeds
- Hard candy or lollipops
- Raw vegetables (carrots or celery)
- Spoonfuls of peanut butter
- Hot dogs
Children should be watched carefully if they have toys with small pieces, coins, or anything else that is small enough to go into their mouth but too large to be swallowed. One rule of thumb is that if an item is small enough to fit through the opening of a toilet paper roll, it’s too small for a child to handle unsupervised.
The American Academy of Pediatrics provides guidelines for safe sleep to protect babies from suffocation. Even older children need supervision around items like cords to blinds or shades and other things that could cause them to become entwined.
7. Bites and stings
The CDC reports that bites and stings are the third most common reason why children ages 0-9 visit emergency departments. This could be because of tick bites, bee stings, or other types of animal interactions including snakes, bats, dogs, or others.
8. Drowning or swimming accidents
A child can drown in as little as a few inches of water, even in your own bathtub. If the child’s nose and mouth can become submerged under the water, they need to be supervised at all times.
Swimming pool accidents can happen because a child wanders through an unlocked gate or ungated pool area and falls in the water without an adult noticing, or even when an adult is present but doesn’t recognize the signs of drowning.
9. Car accidents
Car accidents are the second leading cause of death for children from ages 2 to 14 years old. Aside from understanding how to properly use child safety seats and seat belts, driving safely and defensive driving can help to keep your family safe.
For the first time in 2020, guns replaced car accidents as the leading cause of death for children ages 1-18. In 2021, firearms accounted for nearly 19% of childhood deaths, according to the CDC. During that year, nearly 3,600 children died in gun-related incidents, or five children for every 100,000 in the nation.
How (and when) to file a Florida lawsuit on behalf
of a child
So, we’ve seen lots of scary things that could happen to a child—but when does that injury become a lawsuit?
There are a few ways you might wish to hold someone financially responsible for your child’s injury. First, you need to identify whether the accident resulted from a person’s negligence.
A person is negligent if they were careless in a way that meets these elements:
- Duty. Everyone has a duty to someone else at some time, which can change from moment to moment. A person can also have a duty to someone they’ve never met. For example, a driver has a duty to every other road user to take reasonable care to drive safely and avoid injury. For a child, duty could be on the part of a babysitter, school, or any adult providing supervision.
- Breach. If duty is breached, it means the negligent person did not take reasonable care to avoid harm or injury to the plaintiff.
- Causation. The plaintiff must prove that the defendant’s action or lack of action was the reason why their injury occurred.
- Injury. In order to file a lawsuit, there needs to be an actual injury. If your child fell off the monkey bars at the playground, you might be angry at the babysitter who was supposed to be watching them, but if the child didn’t suffer an actual injury, you don’t have a legal basis for a claim.
- Damages. It’s devastating that your child got hurt, but the court system doesn’t award damages for sadness or anger. The legal system is designed to make an injured plaintiff financially “whole.” This means they are entitled to be restored to the financial condition they would be in if the accident hadn’t happened.
“Damages” are the money a plaintiff can recover through a settlement or judgment. The injury has to have cost you money in order to file a claim.
Typically, lawsuits related to accidents for children are either standard personal injury claims (for example, suing the at-fault driver in a car accident that injures your child); premises liability, which are accidents that happen from property hazards; or negligent supervision, which is a lawsuit against someone who was responsible for supervising your child and was negligent in allowing a preventable injury to happen.
Florida statute of limitations for lawsuits regarding children
Every lawsuit is bound by a statute of limitations, which is the amount of time the plaintiff has to file the suit after the date of the injury. Each state has its own statutes of limitations and they differ based on the type of lawsuit.
In Florida, a plaintiff has four years from the date of injury in which to file a lawsuit on their behalf. This is the same for adults and minors, but there are some exceptions for children.
If the injured person is less than 18 years old, the statute of limitations could be tolled, or paused, for up to seven years. The parent or representative may file a lawsuit on behalf of a minor for up to seven years following the injury in some circumstances.
This is also based on the "Discovery rule," which says that the clock begins to run when the person knows or should have known about the injury. This mainly affects cases for medical malpractice, if the person is not immediately aware that an injury occurred. The child’s representative has two years after the discovery of malpractice in which to file a lawsuit. However, if the lawsuit is for a birth injury, a Florida parent has until the child’s eighth birthday to file a lawsuit.
A wrongful death action for a child must be filed within two years of the child’s death.
Florida pure comparative negligence rule and
lawsuits on behalf of children
Florida state law follows a pure comparative negligence standard, so if the plaintiff has contributed to their own injury in any way, their damages would be reduced according to their percentage of fault.
Sometimes this is a big issue in cases involving children because children are held to different standards of reasonableness than adults.
Children and the “reasonable person standard”
In general, the courts follow a reasonable person standard. The “reasonable person” standard is an objective test in personal injury cases that jurors use to determine if a defendant acted like other people would have in the same situation.
A child’s standard is compared to an average child of the same age and experience. For instance, a six-year-old’s behavior would be evaluated based on the typical and reasonable behavior of an average six-year-old.
Here’s an example:
Three-year-old Emma is holding her mom’s hand as they walked through a busy parking lot outside the supermarket. Emma’s mom drops a bag of groceries and a few items begin to roll away. She remains holding Emma’s hand but is also gathering the groceries that had fallen on the ground. At that moment, Emma spies the pet store that’s next to the supermarket and there’s a cute puppy barking in the window. Emma breaks free from her mom’s grasp and begins to run across the lot to see the puppy. As she does, she is hit by an oncoming car in the parking lot.
The court determines that the driver had a responsibility to drive as carefully in a parking lot as they would on the road, and that it’s reasonable to expect children to be moving around in a supermarket parking area—they should have seen Emma and stopped before hitting the child.
It was also determined that Emma did not share responsibility for her own injuries because the average three-year-old would not be expected to understand the dangers of oncoming cars or running in a parking lot.
By contrast, let’s say it was 13-year-old Mac in the supermarket parking lot. He’d ridden his bike to the store to pick up some snacks for the afternoon. He had his bag of snacks dangling from the handlebar of his bike and was preparing to ride home. Mac is riding his bike in the lot and not paying a lot of attention to cars around him. He spots his friend Joey, who is riding his own bike on the other side of the parking lot. He waves, but Joey doesn’t see him, so Mac decides he’s going to catch up with him so they can hang out. Mac makes an abrupt turn on his bike, and he is hit by a car and injured.
The court decides that although the car driver had the same responsibility as the driver who hit Emma with respect to driving carefully and expecting people to be moving around the lot, Mac also bears responsibility for the collision. Mac was old enough to understand how to safely navigate a parking lot and that he should be looking where he’s going while riding a bike.
The court awards Mac $10,000 in damages for his injuries. However, Mac is 60% liable for his own accident. Therefore, his damage award is reduced by 60% and Mac receives $4,000 in damages.
The attractive nuisance doctrine
An attractive nuisance is a condition that might appeal to a child who doesn’t really grasp why it might be dangerous.
Some classic examples of an attractive nuisance include:
- Unfenced swimming pool (pond, river, etc.)
- Tree house
- Scooters or other machines left unattended
- Fountains or wells
This is related to shared fault rules because a defendant will naturally try to minimize their liability for a claim. They might say, for instance, that when the child was injured falling off a ladder on the defendant’s property, the child should not have been climbing on it in the first place.
And that might be true.
But a ladder could be considered an attractive nuisance. So, while the child was trespassing and technically caused their own injury by climbing a ladder that they were too small to climb, the court could find that it was an attractive nuisance. In other words, the property owner should have realized that an unattended ladder might be tempting to a young child if left in an area that’s easily accessible.
This would reduce the child’s contributory negligence and put the liability on the defendant, increasing the amount of the settlement or judgment the child can recover.
Negligent supervision of a child
A parent or representative may sue someone who was responsible for supervising their child if they negligently allowed the child to be injured while in their care.
This would apply to school personnel, daycare providers, babysitters, or even grandparents or other adults who are supervising a child at a particular time.
In an extreme circumstance, a Florida grandmother was criminally charged after leaving her grandchild unsupervised in a vehicle. The grandmother forgot the child and the baby died in the hot car after being left there for several hours. Less than one year earlier, this same grandmother had been babysitting for a different toddler grandchild when that child, a 16-month-old, died by drowning in a pond near the grandmother’s home. In that instance, the grandmother fell asleep while watching the child and he wandered outside and fell in the pond.
The lawsuit would need to establish the same elements of negligence as any other personal injury claim: duty, breach, causation, injury and damages.
What if you are injured by a minor in Florida?
Flipping the tables a bit, what if you are injured because of a child’s actions?
Nearly every state has some version of a parental responsibility law. While opponents question the fairness of punishing a parent for their children’s behavior, victims’ rights advocates believe that the injured person should not be financially burdened for someone else’s negligence, even if that someone is a child.
Florida parental responsibility laws
There are two causes of action that hold a parent responsible for a child’s behavior under Florida law:
1. Driving (Florida Statutes § 322.09)
A parent must sign and verify a minor’s driver’s license application.
If the driver is under 18 years old, the parent or guardian must submit their own U.S. birth certificate, green card, employment authorization card issued by the U.S. Department of Homeland Security, or proof of non-immigrant classification.
The parent or legal guardian is responsible for injuries or property damage caused by the child if the child is negligent or exercises willful misconduct while driving a motor vehicle. The parent or guardian is financially responsible and shares liability with the minor for any injuries that arise from the child’s driving.
2. Vandalism and theft (Florida Statutes § 751.24)
If a minor who lives with their parents in Florida “maliciously or willfully destroys or steals property, real, personal, or mixed,” the parent is financially responsible for the damages. This responsibility is limited to actual damages and court costs, but there is no provision for pain and suffering or other non-economic harm.
However, in addition to the specific liability related to driving and vandalism, there are other rules that would hold parents responsible for a child’s actions.
If the parent is aware that their child is likely to act recklessly or carelessly, they must take reasonable steps to prevent the child from causing foreseeable harm to another person.
Should you call a Florida personal injury lawyer?
If you’re not sure, then probably yes.
Whether you’re looking for financial coverage of damages because of an injury to your child or you were injured because of a child, the fact that a minor is involved in a lawsuit brings certain nuances that aren’t typical in a “standard” personal injury claim.
You can contact a Florida personal injury lawyer to assist with your claim and guide you through the legal process.
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