Accidents happen every day which result in people getting injured. In a number of cases, and depending on the severity of the injuries or damage, the injured person brings a claim against the person they believe caused the injury. In North Carolina, like most states, minors cannot bring claims on their own behalf. Therefore, if the person injured was a minor, there are special considerations.
Liability and Minors
Negligence, liability and damages are key concepts in every personal injury case. The injured party (plaintiff) argues that his/her injuries were caused by the actions, or inactions, of another party (defendant). To have a successful claim, the plaintiff must establish negligence by the defendant. To establish negligence, the plaintiff must show that the defendant acted in a way that was not reasonable. If a plaintiff can establish negligence, they then must show that the negligence caused the plaintiff’s injury, thereby establishing liability. Establishing negligence and liability is necessary, regardless of whether the plaintiff is an adult or a minor.
If a plaintiff can establish negligence and liability, then the defendant will likely have to pay the plaintiff’s damages. This also applies regardless of whether the plaintiff is an adult or minor. The purpose of awarding damages is to make the plaintiff whole.
Contributory Negligence and Minors
North Carolina is one of only a few states that follows the contributory negligence doctrine. Under the contributory negligence doctrine, if the injured party was at all responsible for (contributed to) their own injuries, then they will not be able to recover any damages. There are a few exceptions to this rule.
The contributory negligence doctrine is applied differently when minors are involved. It is not applied universally to minors but rather it is applied differently depending on the child’s age. North Carolina follows what is known as the “rule of sevens” which provides that children:
- Under seven - children under 7 cannot be held liable, regardless of any actions on their part that might have contributed to their injuries. Therefore contributory negligence does not apply.
- Between seven and fourteen - children in this age group are “presumed” to be incapable of negligence. Since it is a presumption, not a hard and fast rule like that for children under 7; it is possible to overcome the presumption. The facts of the case, along with what a reasonable child of the same age would have done in that situation can help to overcome the presumption. For example, if a 13 year old was hit by a car while crossing the street at a red light, it might be possible to overcome the presumption and show negligence by providing evidence that a typical 13 year old with similar experience would know not to cross the street unless the light was green.
- Fourteen to eighteen - children in this age group are also subject to a presumption. Unlike the 7-13 year old group, the presumption for children in this age group is that they, like adults, are capable of contributory negligence. Like the 7-13 year old group, the presumption is rebuttable. Once again, the specific facts of the case are key as well as the child’s background. For example, take a 15 year old who lives in a rural area where there are no trains. If that 15 year old were in Charlotte, NC and tried to cross a train track in a city where there was a flashing red light indicating that the train was coming, it could be argued that that specific 15 year old did not have knowledge to use reasonable care to avoid crossing the train tracks when the light was flashing. That might be enough to overcome the presumption. On the other hand, if the 15 year old in question grew up in Charlotte, where trains are commonplace, it is unlikely that the presumption would be overcome.
When an adult has a personal injury claim, in the majority of cases, that adult is the plaintiff and brings the claim on their own behalf. Minors however cannot legally file a personal injury claim on their own behalf.
Personal injury cases involving minors typically involve two claims. First, because minors are not legally responsible for medical bills, assuming that the parents paid for the medical bills, then there is a claim by the parents for reimbursement of medical bills and costs. The second claim belongs to the minor and is for other damages typically associated with any personal injury claim. These include pain and suffering, loss of earning capacity after the age of 18 and medical expenses expected to be incurred after the age of 18.
In a case where the minor party was only slightly injured, and that injury will not have lasting effects, damages could be small. However in the case of severe injury, like a car accident that led to severe brain damage or permanent disfiguration, the damages could be substantial.
In a case involving a minor, a “guardian ad litem” is often necessary. A guardian ad litem is a third party whose job is to look out for the best interests of the minor. Guardian ad litems can include a family friend, a relative or a lawyer. In the case of a settlement, the guardian ad litem will be part of the settlement discussions and might need to appear before a judge who will either approve, or disprove, the settlement.
Payments for minor claims often involve special considerations because the goal is to protect the minors' money for them until they turn 18. This can be done in a variety of ways including the court holding the payments until the minor turns 18, putting the money into a structured settlement or annuity, or establishing a special needs trust.
The Charlotte, NC lawyers at Rosensteel Fleishman, PLLC are experienced personal injury lawyers. They are available to discuss your minor child’s personal injury claim with you and help you navigate the legal process if there is a legal claim. Please contact our office at 704-714-1450. There is no fee for an initial consultation.