Are parents liable if a special needs child causes injury and disability?

by Elle
(San Diego, CA)

A student with special needs caused spinal damage (L5-S1) and nerve damage to a teacher's aide. The worker is left with a 15% disability, with long term permanent injuries and chronic pain.

Are the parents liable if the special needs child injured the paraprofessional causing long term partial disability? Can the injured worker sue the parent in California? Or is this handled by the school's workers' compensation insurance? Thank you for any information you can provide.

Visitor Question:
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ANSWER for "Are parents liable if a special needs child causes injury and disability?":

Elle (San Diego, CA):

The underlying facts of the paraprofessional’s injuries will influence the manner in which the injury claim will be ultimately resolved.

No doubt the injured paraprofessional turned to the school’s workers' comp insurance company for compensation for her injuries. Injured workers are not permitted by law to sue their employer. Instead, the injured worker must turn to the employer’s workers compensation insurance to be reimbursed for damages.

The teacher’s damages can include medical and therapy bills, out of pocket expenses (for such items as medications, bandages, costs of travel to treatment, medical and hospital parking fees, etc.), and about 2/3rds of lost wages. Workers' compensation does not provide compensation for pain and suffering or emotional distress.

The paraprofessional can only sue the school if she can prove the school was grossly negligent or exhibited a wanton disregard for the paraprofessional's safety and well being. From the facts you present, there doesn't seem to be any evidence of gross negligence or a wanton disregard for safety.

However, while the paraprofessional must turn to her employer's workers' comp insurance for reimbursement for her damages, if the teacher can prove the student purposely or negligently caused the injuries, then the teacher may turn to the student’s parents for reimbursement. This claim would be separate from workers' compensation and is referred to as a third party claim.

In 3rd party negligence claims, damages are somewhat different than damages in a workers' comp claim. In a third party claim, damages can include full lost wages and pain and suffering.

If the teacher does succeed in a third party negligence claim, the workers' comp insurance company has a right to be indemnified for the compensation they already paid to the teacher. This means the teacher will have to reimburse the company for the monies they already paid out on the claim. This is used to prevent double dipping.

The above is general information. Laws change frequently, and across jurisdictions. You should get a personalized case evaluation from an attorney licensed in your state. Find a local attorney to give you a free case review here, or call (888) 647-2490.

Best of luck,

Judge Calisi

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