By Stephen C. Smith, Esq.
It is not uncommon that children are involved in an accident where one of their parents are at fault. Children are totally dependent on us to drive them, to supervise them at the pool and to keep our homes safe. Even in the case of a serious injury, it can be a natural inclination for the parent to not think about suing themselves on behalf of his child. Such topics can be uncomfortable and easy to avoid, but having a child sue one’s own parent or close relative can be accomplished without undue family stress.
At Lipman & Katz, we are sensitive to the family dynamics and at the same time to provide for an injured child who may have been inadvertently injured by a parent in an automobile accident or in an accident at the home.
According to the Centers for Disease Control, in the United States during 2013, 638 children ages 12 years and younger died as occupants in motor vehicle crashes, and more than 127,250 were injured. One CDC study found that, in one year, more than 618,000 children ages 0-12 rode in vehicles without the use of a child safety seat or booster seat or a seat belt at least some of the time. Of the children ages 12 years and younger who died in a crash in 2013, 38% were not buckled up. For children less than 1 year of age, two–thirds of injury deaths were due to suffocation. Drowning was the leading cause of injury/death for those 1 to 4 years of age. For children 5 to 19 years of age, the most injury/deaths were due to being an occupant in a motor vehicle traffic crash.
Parents may wonder how they will pay for any claim by their child. Parents may think that a claim by a child will result in payment out of the family’s personal assets. In most cases, the parent will have their homeowner’s insurance or automobile insurance cover the claim. The homeowner’s insurance company or automobile insurance company will provide a lawyer to defend the parent against the child’s claim and, if appropriate, provide funding to settle any settlement or judgment.
The first thing to consider is the relationship of the parent and child. Obviously no amount of money is worth damaging a good relationship. Most parents, however, will recognize the unfortunate circumstances that sometimes occur and will balance the needs of an injured child over their own interests. If the child is under 18, a “next friend” can be appointed to act as the child’s representative during litigation. This “next friend” can be the other parent or some other person who can look after the child’s interests so as to avoid the obvious conflict of interest that might result from a parent advising a child on how to sue himself.
The next thing to do is to consider the age of the child and the statute of limitations. In Maine, the statute of limitations in a normal personal injury/automobile negligence case is six years. However, by Maine law, the statute of limitations is “stayed” until the time the child turns 18. If a child was three years old at the time of an accident and suffered serious injuries, that child has until the age of 24 to sue his parent.
If we or a loved one has inadvertently injured our own children, don’t we owe it to them and to ourselves to pursue every possible avenue to make things right? While money may not regrow an injured limb or undo the effects of a serious injury, a settlement can help fund medical treatment or schooling to help the child compensate for the injury.
Good people have accidents — that’s why we have insurance.