When the law holds Person A responsible for an injury suffered by Person B, a personal injury claim arises in favor of Person B. But what if Person B is only five years old? How can a child protect their interests?
Arizona’s solution is to bar ”minors” (persons aged under 18) from filing lawsuits and instead appoint a guardian ad litem to bring a lawsuit on behalf of the child.
When You Might Want To Bring a Personal Injury Claim on Behalf of a Child
Most personal injury claims are based on negligence, although some are based on strict liability or intentional misconduct. Following is a list of some types of claims that commonly include child victims:
- Sports accidents: In many cases, sports accidents arise from negligent supervision.
- Playground accidents, school accidents, field trip accidents, and accidents during extracurricular activities: These types of accidents also often arise from negligent supervision. Negligent supervision also encourages bullying by other children.
- Intentional assault or abuse. These incidents might warrant punitive damages as well as compensatory damages.
- Injuries from defective toys: You don’t even have to prove fault to win a product liability claim.
- Property hazards: These injuries can generate a premises liability claim.
- Dog bites: Small children are disproportionately victims of dog attacks because small children often do not realize when they are provoking a dog. Even so, a court might hold the dog owner liable.
- Car accidents: Injuries are particularly likely when the child is not strapped into a car seat.
- Birth injuries, which can give rise to a medical malpractice claim.
Children are also subject to virtually all of the same types of personal injuries that adults are.
Special Case: The Attractive Nuisance Doctrine
The attractive nuisance doctrine allows a child or their representative to sue a property owner for personal injury occurring on their property, even if the child was trespassing at the time of the accident.
Property owners increase their likelihood of liability by keeping something on the property that is dangerous but likely to attract children. Playground equipment, swimming pools, and dogs could all generate an attractive nuisance claim.
Possible Compensation In a Phoenix Child Injury Claim
Possible compensation might include:
- Medical expenses;
- The parent’s lost wages, if they stayed home to take care of their child;
- Pain and suffering;
- Scarring and disfigurement;
- Emotional distress; and
- Long-term emotional trauma (a lifelong fear of dogs due to a dog attack, for example)
In addition, a parent can seek loss of consortium damages by claiming that their child’s injuries deprived them of the child’s comfort and companionship. This claim belongs to the parent, not the child.
Special Case: Punitive Damages
In rare cases of outrageous conduct by the defendant, a court might award punitive damages in addition to the above-listed types of damages. Courts are normally reluctant to award punitive damages.
Settlement of Claims in Child Injury Cases: Arizona Law
Typically, a parent can file a personal injury claim on behalf of an injured child – unless the child has no living parents or the court finds some reason why neither of the child’s parents is fit to do so. This might be because:
- The parent suffers from a conflict of interest–they might be at fault for the accident that injured their child, for example.
- The parent is deemed unfit to represent the child. They might have substance abuse or domestic violence problems, for example.
- The parent is unavailable. They might be in prison, for example, out of state, or “whereabouts unknown.”
- The parent might be unwilling to represent the child.
In such cases, the court will appoint a guardian ad litem to represent the child (see below).
What Is a Guardian Ad Litem?
A guardian ad litem represents a child for one case only–the personal injury case to which the court appointed them. They might not even be related to the child.
The Duties of a Guardian Ad Litem
Like a long-term guardian, the job of a guardian ad litem is to represent the child’s best interests, even over the child’s objections. To this end, the guardian ad litem will have to look into the child’s home life and more to determine what their actual needs are.
The guardian ad litem will then issue recommendations to the judge. They might offer their opinion on the seriousness of the child’s injuries, for example, the magnitude of the injuries, the effect on the child’s life, and the amount of compensation the child might be entitled to.
Guardian Ad Litem vs. Lawyer
To file a lawsuit, a child needs two representatives—the guardian ad litem and the lawyer (since children cannot represent themselves in court). The guardian ad litem protects the child’s best interests except for the child’s legal best interests, which the child’s lawyer protects. The duties of a guardian ad litem and the duties of a lawyer are distinct from each other.
Legal Safeguards on the Use of the Money
Under Rule 16.3 of the Arizona Rules of Civil Procedure, no settlement of a personal injury or wrongful death claim in favor of a child is valid until and unless a court approves it.
Appointment of a Conservator
A court can appoint a conservator to manage the money for the child until they turn 18. A court has this authority no matter how small the amount of compensation is. If the award amounts to more than $10,000, however, the appointment of a conservator is standard procedure. The conservator might not be a parent, and they must report to the court periodically.
Once a court gets involved with the claim, it can appoint a conservator. Suppose, however, that you haven’t filed a lawsuit because you want to keep the claim out of court.
Well, you can still appeal to a court to appoint a conservator, but legal fees will amount to thousands of dollars that way. It probably isn’t worth it unless the settlement is more than $10,000. Seek legal advice at this stage to know how best to proceed.
The Statute of Limitations for Child Injury Cases in Arizona
In Arizona, the statute of limitations deadline for filing a personal injury lawsuit is two years after the date of the injury. For wrongful death, it is two years after the victim’s date of death.
Since a child cannot file a lawsuit until they turn 18, the two-year statute of limitations clock doesn’t begin ticking until the child’s 18th birthday. This gives the child until at least their 20th birthday to file a claim (assuming a claim was not filed by their parent or guardian before that point). In some cases, the deadline can be extended for even longer.
Contact a Phoenix Personal Injury Lawyer ASAP
The inclusion of a child injury victim into personal injury legal proceedings, even by necessity, complicates a case. It is definitely one of those red flags that should alert you that you need to hire a Phoenix personal injury lawyer.
Fortunately, most personal injury lawyers offer free initial consultations. They also work on a contingency fee, which means you only pay attorney’s fees if you win compensation. Contact Curiel & Runion Personal Injury Lawyers at (602) 595-5559 or contact us online for a free consultation. We serve clients in Phoenix, AZ and Albuquerque, NM.