Who Can File a Personal Injury Claim for a Child? How Compensation Works

Many states only allow parents to represent an injured child with court approval. Awards and settlements are also regulated to protect the child’s interests.

While injuries to children are not uncommon, child injury claims include unique issues not found in adult claims.

Deadlines for filing injury claims and lawsuits may be extended until the child reaches the age of majority. There are also limitations on who can file a claim on behalf of a child. In some states, even a parent must be approved as the child’s representative.

Settlement payouts for the benefit of an underage child don’t usually go directly to the child or parent. There are special rules on how settlement funds get distributed and courts often step in to approve settlement decisions.

Who Can File an Injury Claim for a Child?

Injured children cannot file or settle their own injury claims. A qualified adult, legally known as a “next friend” must represent them and protect their legal rights.

A next friend is a court-appointed adult who legally represents a minor child (or an adult who is not competent to represent themselves) in court.

Next friends are usually:

  • One parent
  • Both parents
  • A legal guardian
  • A court-appointed attorney

However, if your child has an injury claim you don’t automatically assume the role of their next friend. Depending on your local laws, you may need court approval to serve as this representative.

You should also be aware that some courts will appoint a Guardian Ad Litem (GAL) to represent a child’s best interests in court. A GAL doesn’t replace a parent, next friend, or attorney but rather appears independently to represent the child.

The GAL answers to the court, not the parent or their attorney.

The Statute of Limitations for Child Injuries

Every state has a statute of limitations for personal injury claims. If the injured person doesn’t settle a claim or file a personal injury lawsuit before the statute runs out, they lose the right to seek compensation for their damages.

When the injured party is an adult, the statute of limitations starts running on the date of the injury. For children, the statute is “tolled” meaning it doesn’t start to run until their 18th birthday, no matter how old they were when the injury occurred.

For example, if the statute of limitations in your state is three years, a child who suffers a personal injury would have until three years after their 18th birthday to settle their claim or file a lawsuit. If they didn’t settle or file a lawsuit  by their 21st birthday, they’d forfeit their right to seek compensation.

Waiting until the child becomes a legal adult to file an injury claim or lawsuit can be risky. Valuable evidence could be lost or destroyed. For such reasons, many parents decide to pursue a legal claim on their child’s behalf long before they reach 18 years of age.

If an injury case is settled while the child is still a minor, the child can’t pursue the same claim after they reach adulthood.

How Child Personal Injury Claims Work

Children have a valid claim if they suffered an injury due to another person or entity’s negligence. In legal terms, negligence is conduct that falls short of what a reasonable person would do to protect another person from a foreseeable risk of harm.

Some childhood injuries are a natural part of growing up.  Skinned knees, cuts and bruises, or a broken arm falling off a bike don’t form the basis for an injury claim.

To establish negligence, the child’s representative must prove:

  1. Duty of Care: The at-fault person or business had a duty of care to avoid harming a child. For example, a manufacturer has a duty to avoid making dangerous toys with lead paint or other hazards.
  2. Breach of Duty: The at-fault person breached their duty by doing something wrong or failing to do what any reasonable person would do in the same circumstances.
  3. Causation: The at-fault person’s breach of their duty of care was the proximate cause of the child’s injuries.
  4. Damages: Your child has verifiable injuries, supported by medical bills, medical records, and evidence of emotional distress.

If you can satisfy all of these elements, then you likely have a legitimate child personal injury claim. The at-fault party is considered liable for your child’s accident and must compensate the child for any injuries caused.

Example: Child Injured by Negligent Motorist

Jake, a 3rd-grade student, was walking home from school one afternoon. A car hit him after he entered a crosswalk. Doctors diagnosed him with three broken ribs and a ruptured spleen.

Jake has a valid personal injury claim. The driver of the vehicle owed him a duty of care, that is, to stop at the crosswalk and to yield the right of way to any pedestrian. The driver failed to uphold this duty and instead hit Jake.

As a result of being hit, Jake sustained injuries that resulted in damages (e.g., medical bills and the pain and suffering experienced in his recovery)

Common Types of Child Personal Injury Claims

Child injuries occur in many of the same scenarios as adults. For example, both children and adults commonly get injured in car accidents. But some scenarios are unique to children.

Familiar places where children are injured:

Common child injury scenarios:

Children may also be harmed at birth, and are often attacked by dogs and injured by dangerous toys.

Types of Damages in a Child Injury Case

Most child injury cases involve several types of damages for both the injured child and the child’s parent(s).

Parents or legal guardians have a right to seek compensation for medical bills paid on behalf of their child. In addition to medical expenses, parents can pursue damages for their own emotional distress, and for the impact on the relationship with their child.

Parents usually include their damage claims in the child’s lawsuit, but they may be able to file a separate legal action instead.

A child’s injuries can include non-economic damages like:

  • Loss of enjoyment of life
  • Emotional anguish
  • Scarring or disfigurement
  • Loss of function of a body part

The value of non-economic damages, commonly known as “pain and suffering” is not concrete. During settlement negotiations, the injured child’s representative must calculate what the child’s damages are worth. If the case goes to trial, a jury will decide this for the child and their parents.

The loss of future income can also be included in a child’s injury claim if the injuries will have an impact on their ability to earn a living as an adult.

For example, Tiffany, age 15, was hit by a drunk driver and life-flighted to the hospital for serious injuries. These included a broken neck and severe traumatic brain injury. Tiffany will require special care for the rest of her life, which impacts her future earning capacity. She can seek compensation for her medical bills, her loss of future earning capacity, and her current and future pain and suffering.

When Child Injuries Cause Fatalities

If a child dies from their injuries, the parents can file a wrongful death lawsuit without the need of a next friend or GAL. Their damages will also include funeral and burial expenses.

The statute of limitations for wrongful death is different than extended deadlines for a child’s personal injury claim. Depending on state laws, parents may only have a couple of years from the date of their child’s death to file a lawsuit.

How Compensation is Handled for Child Injury Claims

Like injury claims involving adults, child claims can end in a settlement negotiated with the insurance company or through a court.

A settlement agreement will include many provisions, which are the specific items that the parties agree on. For example, provisions will state if the settlement will reimburse the child’s parents for their expenses.

Court Approval for Settlements

Some states require court approval before a child receives compensation, for example:

Court approval ensures that settlement agreements are enforceable and that the injured victim will not sue when they reach the age of 18. It also ensures that the child’s best interests are fully protected.

To obtain approval from the court, you or your attorney will need to file legal documents.

Some states require the adults representing the child and the attorneys for the insurance company to appear at a hearing. During this hearing, the judge will ask them to explain why the settlement amount is in the best interest of the child.

The judge might ask about the child’s:

Once the judge approves the amount, the child’s next friend will need to approve it by signing it. The child is then bound by the court-approved settlement. Even when they turn 18, they cannot decide to file another lawsuit if they think their compensation was unfair.

Ways of Managing a Child’s Compensation

The court recognizes that even well-intended parents and guardians can make financial mistakes. To help prevent these mistakes, courts impose strict guidelines regarding how the funds from a minor’s personal injury settlement can be managed and used.

Determining how your child should receive their settlement is best done before the settlement offer goes to the judge for approval. Some options will not be available to you after the settlement is finalized, so exercise your rights at this point.

There are generally three legal options for managing the proceeds of your child’s settlement:

1. Structured Settlements

A structured settlement or annuity is an arrangement for releasing settlement funds over a predetermined time frame. This is as opposed to receiving money in one lump sum. These settlements get funded by several payments staggered in equal intervals.

Children can begin collecting money in these settlements when they reach the age of majority in your state of residence. The benefits of a structured settlement are that there are no ongoing fees that get paid. Also, the settlement money, as well as any growth it incurs, are income-tax-free.

2. Trust Account

A trust account is opened by one person but managed by a designated trustee for the benefit of another party. The injured child’s parents or next friend usually open these accounts, and the trustee manages the funds for the benefit of the child.

The trustee must manage the account under the agreed-upon terms of the settlement. Further, the trustee must only distribute funds for the benefit of the child and must follow all requirements of the trust or face penalties.

Depending on the applicable state law, the at-fault party may be ordered to pay the administrative fees for setting up a trust account for the benefit of a child.

Generally, the court can delay the distribution of the funds until after the child reaches the age of majority. In some situations, there may be options for early withdrawal of funds when it directly benefits the child and is related to the injury.

3. Guardianship Account

Every state allows the option of a simple guardianship account, also known as a blocked account. A person (most often a parent) can start this account with most banks and manage the funds for the child.

Before opening an account, you’ll need a court order and must present it to the bank. The order contains the court’s specific instructions concerning the management of the account and its funds. The court issuing the order will periodically monitor the account to make sure you’re following all applicable instructions.

Guardianship accounts are safe ways to invest, but they only draw a small amount of interest. Further, any interest accrued is subject to taxes. Once the minor reaches the age of majority, they receive full access to the funds.

If your child’s claim is worth more than $10,000, under the Uniform Transfers to Minors Act (UTMA) most states require court approval for any planned or unplanned disbursements.

Other key points for managing a child’s settlement:

  • Your child’s eligibility for government support services such as Medicaid, CHIPS, SSA, and others can be impacted by how much they receive for their claim and how you manage the funds.
  • A Special Needs Trust can sometimes be used to allow your child to continue receiving government services after receiving an injury settlement.
  • If you do not file a lawsuit on your child’s behalf, but they file one after they turn 18, any settlement they receive won’t require court-approval or come with rules about its distribution.

Protect Your Child by Hiring a Personal Injury Attorney

Due to the complexity of child injury payouts, consulting with an experienced personal injury lawyer  is in your best interest. Both legal and financial implications can have a long-lasting impact on you and your child’s future.

If your child is injured, get immediate medical attention for the child, then seek reliable legal advice. You want to maximize your child’s compensation and be sure that any funds they receive are for their benefit. By hiring an injury attorney, you can accomplish both of these tasks.

Most attorneys handle personal injury cases on a contingency fee basis, and offer a free consultation. It costs nothing to get the legal advice you need to help your child receive the compensation they deserve.

Child Personal Injury Claim Questions

Dustin Reichard, Esq. is an experienced attorney with 20 years of work in the legal field. He’s admitted to the Illinois State Bar and the Washington State Bar. Dustin has worked in the areas of medical malpractice, wrongful death, product liability, slip and falls, and general liability. Dustin began his legal career as a JAG... Read More >>