Child Injured in a Car Accident: How the Claim Works

A child cannot bring a lawsuit, so the claim is brought by a parent or guardian in the child's name, as the child's guardian or next friend. The claim belongs to the child: it is for the child's pain, suffering, disfigurement, loss of enjoyment of life, and any future medical costs and lost earning capacity. The money recovered is the child's, and the law protects it from the parents and from everyone else until the child is an adult.

The parents have their own claim for the medical expenses they have paid or are liable for, since parents are responsible for a minor's medical care, and in some states for the loss of the child's services and companionship. That claim belongs to the parents, is subject to the adult deadline, and is often resolved alongside the child's claim.

Where a parent was the driver and was at fault, the child's claim is against the parent, paid by the parent's own policy; the law in most states no longer bars a child from claiming against a parent for negligent driving, and the insurer pays as it would for any passenger. Where another driver was at fault, the claim is against that driver's insurer, with the family's own underinsured motorist coverage as backup.

Children are injured differently from adults. Fractures through growth plates, the areas of developing bone near the joints, can disturb growth and produce limb-length differences or deformity that appear years later. Head injuries in young children affect development in ways that are not measurable until the child reaches the stage where the affected function should appear. Facial scarring on a child is valued higher than on an adult, because the child carries it longer and through adolescence. Psychological effects, fear of cars, sleep disturbance and regression, are real and documented by pediatric records.

Because the consequences unfold over time, children's claims are often not settled quickly. The orthopedist's opinion on growth-plate involvement, the neuropsychologist's assessment of a head injury once the child is old enough to test, and the plastic surgeon's opinion on scar revision once growth is complete are the evidence, and an early settlement before those opinions exist leaves the child uncompensated for what emerges later.

Future costs, scar revision surgery in adolescence, orthopedic follow-up, therapy, are claimed on medical opinion, and for serious injuries a life care plan projects them. Lost earning capacity for a child with a permanent injury is calculated from general labor market data rather than a work history.

Suppose your eight-year-old was a properly restrained rear-seat passenger in your car when another driver ran a red light and struck it. Your child suffered a fractured femur involving the growth plate, treated with surgery, and a facial laceration leaving a visible scar. Medical bills were $64,000, paid by your health insurance, which holds a lien.

The at-fault driver's insurer offered $45,000 within three months, to be split between the child's claim and the parents' claim. An attorney declined on the child's behalf. A year later the orthopedist reported a measurable leg-length difference with a possibility of corrective surgery in adolescence, and a plastic surgeon reported that the scar would benefit from revision once the child was older. The claim, with those future costs and the scar's effect through adolescence, settled for a substantially larger sum within the driver's policy limit.

The court approved the settlement at a hearing, reviewed the attorney's fee, resolved the health insurer's lien, and ordered the child's share placed in a structured annuity paying at ages eighteen, twenty-one and twenty-five. The parents' claim for the medical expenses was paid to the health insurer under its lien. All figures are hypothetical; the structure is the usual one.

The usual steps apply, with additions specific to a child's claim.

• Have the child examined the same day, even if they seem fine; children underreport pain and head injuries show late.
• Keep the car seat or booster; it is evidence of proper restraint, and manufacturers recommend replacing it after a crash, which is a claimable expense.
• Document the child's behavior, sleep, mood and school performance in the weeks after; psychological effects are part of the claim.
• Ask every treating doctor about growth-plate involvement, future surgery and the need for follow-up as the child grows.
• Photograph any scarring at intervals as it heals.
• Do not accept an early settlement; a child's injuries are evaluated over time, and a release ends the claim for what appears later.
• Expect court approval of any settlement and a restricted account for the child's share; plan for it rather than around it.

The deadline for a child's claim is tolled until the child reaches majority in most states, so the child has until eighteen plus the state's injury period to sue; a few states limit the tolling or set an outer limit, and medical malpractice claims for children have special rules. The parents' claim for medical expenses runs on the adult deadline, one year in Tennessee and Kentucky, two in Texas, California, Florida and Georgia, three in New York and North Carolina, and government notice deadlines of months apply to claims involving public vehicles, roads or school buses regardless of the child's age.

Court approval of minors' settlements is required in most states above a threshold amount, with procedures that vary: a petition, a hearing, review of the fee and the lien resolution, and an order on how the funds are held. The options for holding the funds, a restricted bank account, a structured settlement annuity, a trust, or in some states a court-supervised guardianship of the estate, differ by state and by the amount.

Whether a child's lack of a seat belt or car seat can reduce the claim depends on the state's seat belt law: many states bar the seat belt defense entirely, some allow a limited reduction, and a few allow full comparative fault, usually attributed to the parent responsible for restraining the child rather than the child. Parent-child immunity for negligent driving has been abolished or limited in most states, so a child can claim against a parent's policy. Children below a certain age, often seven, are treated as incapable of negligence in many states.

A child injured on a school bus has a claim against the operator, which is a government body or a contractor, with notice deadlines of 90 days to a year that are not extended for the child's minority in many states. School bus seat belt rules vary, and the absence of belts on large buses is by design under federal standards, so a seat belt argument rarely applies. A child struck by a vehicle while boarding or leaving a bus has a claim against the passing driver, and the district's stop placement may be examined.

Children injured in daycare, camp or team vans have claims against the organization and its driver, under its commercial policy, and the organization's own negligence in driver selection, supervision and restraint practices is examined. A child injured while riding with another family has a claim against that family's policy, and the friendship does not change it.

A child injured as a pedestrian or cyclist is a frequent and serious category; drivers owe children a heightened duty of care in many states, and a young child's dart into the street is not assigned as fault to the child below the age at which the state treats children as capable of negligence.

A child's injury claim is the child's own, evaluated over time because children's injuries develop as they grow, settled with court approval, and held for the child until adulthood. The questions to answer early are whether the medical opinions on growth, scarring and development are in hand, what the at-fault policy and the family's own coverage provide, and what the state requires for approval and holding of the settlement. Most personal injury attorneys work on contingency.

Ask Legal Matters is a free claim-review request service, not a law firm. Requests may be shared with independent attorneys and legal services partners who handle inquiries in your state, and an attorney must evaluate the facts before anyone can say what the claim is worth. If your child was hurt in a crash caused by someone else, you can request a free claim review on their behalf.

• Car Accident Claims in the United States: The Complete Guide
• Pedestrian Accident Claims: Rights, Fault and Compensation
• Wrongful Death Claims: Who Can File, Deadlines and Damages
• Airbag Did Not Deploy in a Crash: Can You Sue, and Whom?
• At Fault in a Car Accident? Comparative Negligence Explained
• What Is the Average Car Accident Settlement? What Sets the Value
• Back and Neck Injury Settlement After a Car Accident: Factors
• Bicycle Accident Claim: Hit by a Car While Riding
• Broken Bone Car Accident Settlement: What Drives the Value

Need local rules? Choose your state from the injury law guides hub or read the statute of limitations by state.