Injuries to Minors

Fairfax Injury Lawyer Brien Roche Addresses Injuries to Minors

Brien Roche

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.

Minors Have Favored Legal Status In Injury Cases

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.

Injuries to Minors From Products

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.

Negligence vs Breach of Warranty For Product Injuries To Minors

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.

For Brain Injuries to Minors Immediate Treatment Is Critical

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.

Brain Injury From Child Abuse

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.

Child Abuse Risk Factors

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.

Presenting Damages For Minors Can Be Tricky

In terms of presenting in the courtroom the damages suffered by a child there are several important considerations:

  • Frequently parents and treating physician maintain an almost false sense of optimism.  That false sense of optimism needs to be given a dose of reality as to what really can be expected of this child.
  • What the child is going through needs to be presented graphically so that everybody can feel what it is like to be this child.  If this child is 12 years old and is now in a situation where he has no bladder control and needs frequent diaper changes that needs to be presented.  Pictures in regards to children literally do speak 10,000 words.  The use of pictures and videos to show the child before the injury and after the injury can be critical in terms of getting the jury to sympathize with the changes that have taken place in this child as a result of the injury.  To fully appreciate those changes the lawyer needs to get to know the child.  That doesn’t mean just getting to know the child a month before trial but getting to know the child literally from day one in terms of how that child interacts with the family, interacts with neighbors, interacts at school and interacts with the health care providers.  All of that is critical in order to give the attorney the foundation upon which to build a damages case.
  • The life care plan for the child needs to be fully developed.  This child may be in need of life long care even beyond the life expectancy of the parents.  The full scope of that plan needs to be developed and presented and fully justified.
  • Consider the appointment of a guardian.  The appointment of a guardian to manage the child’s finances takes this issue away from the parent’s control and insulates them from any accusations of seeking to somehow benefit from the child’s injury.
  • Scientific data is beginning to show that we all think metaphorically.  A metaphor is simply a comparison of terms or concepts without use of the word “like”.  With use of the word “like” it becomes a simile.  The essence of a metaphor is being able to understand one thing in terms of another.  It’s similar to an analogy.  Developing those metaphors is critical in terms of getting the jury to understand what this child has experienced.
  • Putting together any standardized test results and academic school reports showing the child’s pre-accident health and ability is critical. Records of siblings in terms of how they have performed in school and outside of school likewise can be helpful in terms of showing performance markers.It is also critical to gather the mother’s pre-natal and pregnancy records dealing with the child. A healthy mother with a normal pregnancy and above average measurements for the child on all pediatric testing will dispute any defense contentions of some pre-existing problem.
  • Although the Glasgow Coma Scale is a frequent marker as to traumatic brain injury, this test may not be appropriate for children. Other tests that are more appropriate are the Child Health Questionnaire and the Pediatric Evaluation of Disability Inventory. The PEDI contain an activity scale that extends beyond basic functional skills.
  • Although a day in the life video may be useful, what may be even more useful is a video of a typical week of before injury and post injury.
  • In terms of proving future economic losses, this may well be dependent upon gathering evidence from family members, educators, and other professionals who can testify as to what this child’s capabilities were pre-injury. This creates a greater foundation for permitting an informed opinion as to future economic losses. In large measure that may depend upon having a vocational rehabilitation expert interview the child and parents and review all academic reports, medical records, and study the family’s academic history. In addition testing such as the Global Assessment of Functioning test is a 100 point scale that rates a variety of different types of functioning including psychological, social, and occupational. Lay testimony from coaches and neighbors who knew the child pre injury can have significant impact in terms of proving the scope of real damage as to child head injuries

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More Information On Traumatic Brain Injuries to Minors

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.

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Injuries to Minors

Contact Us For A Free Consultation

Contact Us For A Free Consultation