Personal Injury to Minors

Brien Roche

Injuries to minors many times involve what is called an “attractive nuisance”. You have all probably heard the term. It is a concept that is followed in many states. An attractive nuisance is an object which by its place and shape is attractive and dangerous to children. For this doctrine to apply the owner must allow it to remain open to children. In addition he must know it will likely attract children. Also he must know that they will likely be injured if they come in contact with it. If these facts exist then that may be a basis for a negligence claim against the owner.

Personal Injury to Minors Involves Favored Legal Status

Children, in general, are given a favored status in the law. This means 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 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 overcome. To overcome it requires proof that the child is, in fact, capable of committing a negligent act because of his intellect, experience and other factors that may bear on that.

Personal Injury to Minors from Products

Product defects causing injuries to minors may be met with the defense that the child was not an intended user.  That may be the case. However the core issue in product liability claims of this nature is whether the child was a foreseeable user of the product.  These types of claims may involve household products.  In general, makers are obliged to design these products knowing that it is foreseeable that children will have contact with them. Call or contact us for a free consult.

Personal Injury to Minors-Negligence vs. Breach of Warranty for Product Injuries

In pursuing a claim such as this under a negligence theory, the focus is on the defendant’s lack of due care. This can be shown through proof that a step in the manufacturing, design, testing, packaging or marketing of the product was performed improperly.  However a breach of warranty claim focuses on the product itself. In other words, is the product fit for the manner in which it is ordinarily to be used.

For instance, a disposable cigarette lighter is not intended for a child’s use.  It is however foreseeable that this product is going to be left around the house and will be picked up by a child.  The failure to include child resistant features may be proof of negligence or of a breach of warranty.  The Consumer Product Safety Commission has set certain mandatory safety standards as to disposable lighters. These are to make them child resistant.

Likewise, 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 injure that child.

Personal Injuries to Minors-Immediate Treatment Critical for TBI

Brain injuries to minors traditionally have been thought of as something likely to resolve quickly given the resilience of children.   This idea was first espoused by neurologist Margaret Kennard in the 1930s.  After her initial findings Dr. Kennard went on to conduct further research. She retreated from those findings to some extent. More recent research shows that children may be more subject to long term brain injury than are adults. The extent of this is a function of age, severity of injury and any other injuries or illnesses of the child.  After the injury the child must have physical therapy. The child’s daily routine should continue. You must re-set any knowledge base that may have been lost. In addition the child should resume normal home, school and community life as soon as possible. If those things are done as quickly as possible the overall chance 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 injury but the effects of that can last a lifetime.  The abuse may affect mental and physical health. In addition it may affect ability to control emotions, 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.  Most children impacted are younger than five.  More than half of the perpetrators are female. Call, or contact us for a free consult.

Child Abuse Risk Factors

Risk factors that seem to go with child abuse are parent depression, substance abuse and a history of abuse.  There was no association found between the rates of abuse and economic downturns.  In the 1990s after welfare reform, it was thought that there would be a spike in abuse.  Instead this was a period of a decrease.

The research that has been done has shown that the abuse can impact the amygdala. This is a part of the brain that regulates emotion.   It can also impact the prefrontal cortex. This is where thinking, planning, reasoning and decision making tend to take place. Call or contact us for a free consult.

Presenting Damages for Minors Can Be Tricky

In terms of proving in the courtroom the damages suffered by a child there are several issues:

Guardian

• 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. It insulates them from any accusations of seeking to somehow benefit from the child’s injury.

Show Don’t Tell

• Parents and treating doctors may have a almost false sense of optimism.  That needs to be given a dose of what really can be expected of this child.
• What the child is going through needs to be presented 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 do speak 10,000 words.  Show the child before the injury and after the injury. The jury must sympathize with the changes that have taken place. The lawyer needs to get to know the child.  That doesn’t mean just a month before trial. It means from day one in terms of how that child interacts with the family, with neighbors, at school and with health care providers.  To be able to “show” and not just “tell” the damage story you need the two “Ds”: details and drama.
• Scientific data is beginning to show that we all think in metaphors.  A metaphor is simply a comparing 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.  Develop those metaphors to get the jury to see what this child has gone through.

Life Care Plan

• The life care plan for the child needs to be fully developed.  This child may be in need of life-long care beyond the life span of the parents.  The full scope of that plan must be fully justified.

Test Results

• Standardized test results and academic school reports showing the child’s prior health and ability is a must. Records of siblings in terms of how they have performed in school and outside of school likewise can be helpful. This tends to show performance markers. The mother’s pre-natal and pregnancy records will refute any defense statement of some prior problem.
• Although the Glasgow Coma Scale is a marker as to brain injury this test may not have meaning as to children. Other tests that have more meaning are the Child Health Questionnaire and the Pediatric Evaluation of Disability Inventory. The PEDI contain a scale that extends beyond basic functions.

Video Presentation

• Although a day in the life video may be useful, what may be more useful is a video of a typical week before injury and post injury.

Lost Income

• Proving future income losses may well depend on proof from family members, educators, and other professionals as to what this child was doing prior to the injury. This creates a better foundation for an opinion as to future losses. A vocational rehab expert will have to interview the child and parents, review all academic and medical records and study the family’s history. The Global Assessment of Functioning test is a 100 point scale that rates a variety of different types of function. This includes psychological, social, and occupational. Coaches and neighbors who knew the child can help prove the scope of real damage.
• Bulala v. Boyd, 239 Va 218 is the lead case not allowing lost income for minors. This can probably be overcome by relying more on facts specific to the child such as medical records, school records, family school history and work history and other data personal to the child. This combined with national data may be enough to overcome the Bulala case.

Parental Care

Issues may arise as to whether or not a parent may recover lost income for an injury to a child. Virginia Code § 8.01-36 and the case of Moses v. Akers, 203 Va. 130, 133 (1961) gives some support to the idea that the expenses in caring for the child are recoverable. A parent’s loss of income is not necessarily an expense incurred in caring for a child. If however there were childcare expenses actually incurred while the parents went to work, that expense most likely is recoverable. 

Personal Injury to Minors-Contact Us

For more information about 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.