Injuries to minors frequently involve what is called an “attractive nuisance”. You have all probably heard the term. It is a concept of negligence that is recognized in many states. An attractive nuisance is an object which by its very location and configuration is attractive and also dangerous to children. If the owner of that object allows it to remain accessible to children knowing that it will attract them and knowing that they will be injured if they come in contact with it, then that may be a basis for a negligence claim against the owner of that object.
Children, in general, are given a favored status in the law meaning that they have special protection. This is true likewise in regards to tort claims. For instance, in regards to negligence claims, children under 7 years of age generally are legally incapable of committing any act of negligence. Children between 7 and 14 are generally presumed to be incapable of committing negligence. That presumption can be rebutted with the presentation of evidence showing that the child is, in fact, capable of committing a negligent act because of his intelligence level, experience level and other factors that may bear on that.
Product defects causing injuries to minors are frequently met with the defense that the child was not an intended user. Although that may be the case, the more pertinent issue in product liability claims of this nature is simply whether or not the child was a foreseeable user of the product. These types of claims frequently involve household products. In general, manufacturers are obliged to design these types of products recognizing that it is foreseeable that children will have contact with them.
In pursuing a claim such as this under a negligence theory, the focus is on the defendant’s lack of due care by showing that a step in the manufacturing, design, testing, packaging or marketing of the product was performed improperly. A breach of warranty claim, however, focuses on the product itself, i.e. is the product fit for the manner in which it was ordinarily to be used.
For instance, a disposable cigarette lighter is not intended for a child’s use. It is however foreseeable that a disposable cigarette lighter is going to be left around the house and will be picked up by a child. The failure to incorporate child resistant features may be evidence of negligence or of a breach of warranty. The Consumer Product Safety Commission has set certain mandatory safety standards as to disposable lighters in order to make them child-resistant.
Likewise, many other potentially hazardous items such as stoves, drain cleaners, combustible fabrics are sold as being safe, reliable household items. In fact, in the hands of a child they contain latent defects that can seriously injure that child.
Traumatic brain injuries to minors traditionally have been thought of as a condition that is likely to resolve given the overall resiliency of a child or infant. This principle was originally announced by neurologist Margaret Kennard in the 1930s. After publishing her initial findings Dr. Kennard went on to conduct further research and retreated from those earlier findings to some extent. More recent research indicates that children, in fact, may be more vulnerable to long term traumatic brain injury than are adults. Exactly how vulnerable is a function of age, severity of injury and any other prior or concurring injuries or illnesses experienced by the child. The younger the child is the more disabling the injury frequently is.What is critical is that as soon as possible after the injury the child must undergo rigorous rehabilitation consisting of physical therapy, continuation of the daily routine, re-establishing any knowledge base that may have been lost and reintegration into home, school and community life as soon as appropriate. If those things are undertaken as quickly as possible, then the overall prognosis for recovery is better.
Child abuse brain injury was the subject of a study put out by National Academy of Sciences. In an article in The Washington Post on September 13, 2013, it was reported that the study shows that child abuse cannot only reshape a child’s brain due to the brain injury but the effects of that can last a lifetime. The abuse may affect not only mental and physical health but ability to control emotions and impulses, achievement in school and relationships as a child and later as an adult.
Each year, abuse and neglect cases cost a total of $80 billion in both direct costs of hospitalization and law enforcement and also a multitude of indirect costs.
Although physical and sexual child abuse has actually declined in the past 20 years, the rate of emotional and psychological abuse has increased. It is this latter abuse that is the most devastating.
Child Protective Services across the nation receive 3 million referrals for child abuse and neglect each year. The vast majority of children that are impacted are younger than five. More than half of the perpetrators are female.
Risk factors that seem to be associated with child abuse are parental depression, parental substance abuse and a history of abuse or neglect in the parent’s life. There was no association found between the rates of abuse and times of economic downturn such as a recession or depression. In particular in the 1990s after the implementation of welfare reform, it was thought that there would be a spike in child abuse. Instead this was a period of a decrease of such referrals.
The research that has been done has shown that the abuse can impact the amygdala, which is a part of the brain that regulates emotion. It can also impact the prefrontal cortex, which is where functions such as thinking, planning, reasoning and decision making tend to take place.
In terms of presenting in the courtroom the damages suffered by a child there are several important considerations:
For more information about traumatic brain injuries to minors and brain injury in general, peruse our supporting content. Brien Roche is a Fairfax, Va. personal injury attorney serving the litigation needs of Northern Virginia and Washington D.C. area clients for over 40 years.
If a child of yours has suffered an injury, contact us..
For more information on minors see the pages on Wikipedia.