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. Georgia law has some conditions and nuances for lawsuits involving children and personal injury.
Kids will be kids.
Childhood should be fun and frolic, with carefree days and sound sleep at night. While many of us would love to hearken back to the days of our own childhoods—memories of playing under the streetlights at night and riding bikes around our neighborhoods without a care in the world—things are a little different now than they were then.
Skinned knees, bumps and scrapes are typical in childhood. Some pediatricians go so far as to say that if a child has no bruises on their legs, then it’s a sign that they spend too much time watching TV or playing video games and not enough time playing outside. But when an injury isn’t a minor cut or bump, what’s next? As a parent, do you have legal rights to sue on behalf of your child for their injuries?
Alternatively, what if a child injured you—can you sue them for your injuries?
The answer is that it depends.
Whether or not you can bring a successful lawsuit in either of these types of situations depends on a few factors:
- First, was the injury caused by someone’s negligence?
- Second, who is the liable defendant (it could be a person or an entity like a property owner or manufacturer)?
- Third, did the injury cost you money?
That last factor is an important one. The purpose of personal injury law is to make the plaintiff (injured person) whole, or to restore them to the financial condition they’d be in if the accident hadn’t happened. So, say your child was climbing a tree under the babysitter’s watch and the child fell and got hurt. You might be really, really angry with the babysitter for allowing your child to climb the tree. But even if the fall resulted in a trip to the ER, if the financial cost was a $50 copay for a couple of stitches, there’s really not a cause of action for a lawsuit against the babysitter. It would not be worth that $50 to pursue a legal claim, and although the incident might have caused you stress and anguish, it didn’t cost you much money.
Let’s take a look at how you might be able to recover costs for an injury to your child, or what you can do if a child injured you.
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:
- Hot dogs
- Nuts and seeds
- Chunks of meat
- Hard candy or lollipops
- Raw vegetables (carrots or celery)
- Spoonfuls of peanut butter
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.
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.
You can read more about swimming accidents in Georgia.
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.
Who can file a Georgia lawsuit on behalf of a child?
A minor cannot file a lawsuit on their own behalf. A parent or legal guardian can file a lawsuit as the child’s representative.
Typically, the Georgia statute of limitations is two years for a personal injury lawsuit. In other words, an injured person must file the lawsuit within two years of the date of the accident or the court can refuse to take the case.
However, if the injured person is a minor and their representative fails to file a lawsuit within that time, the statute of limitations for a personal injury is “tolled.” The “clock” begins to run on their 18th birthday, so the person has until their 20th birthday to file a lawsuit. (There is an exception to this for a medical malpractice lawsuit; if the malpractice is before the child’s fifth birthday, the suit can be filed by their 7th birthday. If the malpractice is after their fifth birthday, the lawsuit must be filed within two years from the date of the injury.)
Who can file a Georgia lawsuit for a child’s wrongful death?
A Georgia wrongful death lawsuit is the right to recover for a child who has no spouse or other dependents. This is a single cause of action for the joint benefit of the parents if they are married or living together.
If parents are divorced, separated, or live apart, they both have the right to recover financially. The award can be allocated based on percentages of custody, support and other factors. If there is no surviving parent, an administrator could bring a claim on behalf of the next of kin, including grandparents or siblings.
Who is liable for a child’s injury?
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.
The lawsuit would need to establish the same elements of negligence as any other personal injury claim: duty, breach, causation, injury and 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
If a 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.
The Georgia Supreme Court has a five-prong rule related to the attractive nuisance doctrine. The property owner is liable for a trespassing child’s injury if:
- The condition's location is known by the possessor to be somewhere that children are likely to trespass;
- The possessor knows or should know that the condition involves an unreasonable risk of harm to a child;
- A child would be unlikely to understand the condition or the risk involved;
- The burden to the property owner of maintaining the condition and eliminating the risk is slight as compared to the potential harm; and
- The possessor fails to exercise reasonable care to eliminate the danger or otherwise protect the children.
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.
The exception to the reasonable person standard: If a minor is engaged in an adult activity like driving a car or flying a plane, they would be held to an adult standard of care.
What if you are injured by a minor in Georgia?
Georgia “tender years” doctrine
There is an individual, subjective standard of care for children of tender years.
A child up to age four is presumed incapable of negligence. If a child is between age five and thirteen, they could have contributory negligence for their own injury by a subjective standard. However, whether they can be liable for negligence to another person would be a question that a jury must decide.
In some instances, a parent’s equal knowledge of a premises hazard could negate the property owner’s duty to keep a child safe if there is no violation of law or other standards.
Parents could be liable if a minor living at home maliciously damages or destroys property belonging to another person. The parents are responsible for payment of the actual amount of the damages up to $3,500, along with reimbursement of court costs and attorney fees.
Parents can also be responsible for bodily injury knowingly caused by their minor child through intentional acts like assault and battery.
The parents are also financially responsible if the minor shoplifts. They would be required to pay the actual value of the property, in addition to penalties up to $250. There is no limit on damages for the value of shoplifted property.
Even if the child’s actions don’t fall into these specific categories, parents could still be held accountable. If the parent is aware that the child is known to engage in careless or reckless behavior, they could be considered negligent for failure to take reasonable steps to prevent the child from causing injury.
Should you call a Georgia 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 Georgia personal injury lawyer to assist with your claim and guide you through the legal process.