What are your child's rights if they are injured in an auto accident?

Child's rights in an auto accidentBecause children are not mature enough to understand the complexities of their rights after an auto accident, Virginia law treats them differently. Virginia also understands children do not know how to look out for their own best interest, so the laws are in place to provide additional safeguards

Virginia law classifies every child under the age of 18 as an “infant”. An infant is considered to be incapacitated or “under a disability” and therefore unable to file a lawsuit in his own name. If a child has a personal injury case, or any other type of case, he may only file suit through his “next friend.” Either or both parents may sue on behalf of a minor as his next friend. If a parent is not available, another adult or his legal guardian can file the suit as the child’s next friend. [Virginia Code Section 1-207; 8.01-8]

In Virginia, an adult must file a personal injury lawsuit within two years of the injury.  This time limit is called the statute of limitations.   The statute of limitations does not start running until the child is eighteen and when he is no longer considered to be "under a disability."  If a child has a personal injury case in Virginia, the statute of limitations does not end until his twentieth birthday. [Virginia Code 8.01-8,8.01-229]

However, if a child has been legally emancipated, a process which requires a Court hearing, then he is no longer considered under a disability.  If the child is emancipated when the injury occurs, he has two years from the date of injury, which is the normal statute of limitations for a Virginia personal injury case.  If the child became emancipated after the injury, he has two years from the date of emancipation to file his personal injury lawsuit. [Virginia Code 8.01-229]

Also for children, the standard of contributory negligence is different.  "Contributory negligence" is the legal theory that if one is partly responsible for the injury (i.e negligent in any way), no matter how insignificantly, then that person is barred from recovery.  Virginia is one of the few jurisdictions that still apply this standard.  The difference for child cases is that under Virginia law a child under the age of seven is incapable of being negligent. Children between the ages of seven and fourteen are presumed to be incapable of negligence. However, if a child is capable of understanding the risks of his actions and his conduct did not conform to that of a reasonably prudent child of the same age, intelligence, maturity, and experience, then a fact-finder can find that child to be contributorily negligent.

What about the medical bills? When will the child receive his or her settlement? What if the child had lost wages?

Because all these factors, and more, must be taken into consideration, it is important to consult with an experienced personal injury attorney for your child’s personal injury case.  These kinds of cases are even more complicated than adult personal injury actions (which can be daunting enough on their own).

Kellam T. Parks
Managing Member of Parks Zeigler, PLLC
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