Your Child is Injured. Should You Sue? - Injured
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Your Child is Injured. Should You Sue?

When children are injured, how long can they wait before they file a lawsuit? The answer depends on the type of injury, the age of the child, and where the child lives.

States have different laws about personal-injury lawsuits brought by children. But some general principles and concerns apply for child injury lawsuits across the board.

Here are three legal issues to think about when considering a child injury lawsuit:

1. Statute of Limitations.

When an injury occurs, the clock usually starts ticking on the statute of limitations -- the time period in which a person can pursue legal action after an injury. Each state sets different statutes of limitations for different types of claims.

But for child injury claims, the statute of limitations "clock" may not start ticking until the child turns 18. For example, New York imposes a three-year statute of limitations for injury claims in general -- but for children, the statute is "tolled" until the child's 18th birthday. So children really have until age 21 to pursue an injury claim in New York.

However, if a child is legally emancipated, he may be considered an adult and not subject to "tolling," depending on the state. Different rules may also apply to other injury cases like medical malpractice or sexual abuse. It's best to consult an attorney to figure out what laws apply where you live.

2. "Reasonable Child" Standard of Care.

In negligence lawsuits, courts generally hold adults to a "reasonable person" standard of care -- meaning, an adult is expected to act as a "reasonable person" would in the same circumstances.

But for children, courts usually adopt a "reasonable child" standard -- meaning, a child is expected to act like a reasonable child of the same age, intelligence, maturity, and experience. However, if a child is engaged in an adult activity -- like riding a snowmobile, for example -- a court may choose to apply an adult standard of care instead.

3. When a Parent or Guardian Must Step In.

If a child injury lawsuit results in a damage award, the child may not receive the money until he turns 18. Claims for medical expenses, however, may be awarded to a child's parent or guardian because the parent or guardian paid the bills.

In other cases, a court may appoint an adult as guardian for a child injury plaintiff, if the court believes it's in the best interest of the child.

Because child injury lawsuits are quite complicated, it's wise to speak with an attorney to make sure you haven't overlooked any legal issues in your specific child injury case.

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