Does A Child Have a Claim for an Injury?
The Following article on California Accident & Injury News is a guest post from the Virginia personal injury lawyers at Rohrstaff Law Firm.
Sometimes people think that when they are injured by someone else, the only damages they can recover are actual out-of-pocket expenses, such as lost wages and the cost of medical treatment. That’s not so in Virginia, where the law requires that if the injured person proves that someone else caused her injury, she must receive compensation for her entire injury, including the pain she had, the suffering she experienced, the permanent scarring she may have, her inconvenience, aggravation and anguish.
Children who have been wrongfully injured are also entitled to recover for all of those kinds of losses. In fact, where personal injury to children are concerned, those are the most important types of losses, since children do not pay for their own medical expense, nor do they have loss of income from employment.
The amount of money a child may be recover for her injuries depends on (1) the cause of her injury, (2) her age at the time of her injury, and (3) the severity of her injury. This article is about how the cause of the injury affects the damages a child may recover for her losses.
In Virginia, if the injured person is even a tiny bit negligent and that negligence contributes to her injury, she cannot recover from the person who injured her. (This rule is called contributory negligence.) However, that rule is different for children.
A child under the age of seven years is no legally capable of being responsible for her injury, so the person who injured her can be held totally responsible for the child’s injury.
A child who is between seven and fourteen years, is presumed to be incapable of contributing to her injury; however, that presumption can be overcome with evidence that for some reason she should be held accountable for her own negligence.
A child fourteen and older is subject to the contributory negligence rule and must put on evidence that she did not in any way contribute to her injury.
Let’s look at one fact pattern: A child runs into the street chasing a ball and is hit and injured by a driver. The evidence is that the driver was negligent because he was not paying attention and is, therefore, liable for her injury.
If she is five years old, she is not at fault, and the driver can be held responsible regardless of the child’s actions (even if she “darted out” in front of him).
If she is ten years old, she is presumed to be without fault. However, if there is believable evidence that she was more careful than the ordinary ten year old or, on the other hand, that she saw the car coming and decided to run into the street anyway, then the driver may be relieved of his responsibility for hitting and injuring her.
A child who is 16 years old, even though not yet an adult, will be treated like an adult when her behavior is evaluated. Did she run into the street without looking? If so, and that action put her in harm’s way, then she likely contributed to her own injury and would not be able to recover from the driver.
Keep in mind, that every case is different. Really. I mean it. These are only examples, and no good lawyer would ever evaluate a case without thoroughly investigating the facts of how the injury happened and the effects of the injury on the child. If you would like more information on children’s injuries, I have written a book for parents and families of children who are injured in Virginia, When the Bough Breaks. You may request a free copy by emailing Sandra@RohrstaffLaw.com.
