Most kids are naturally curious and adventurous, and it’s often hard for parents to keep an eye on them all the time. Kids often get injured and most of the time they get over it and learn from any mistakes they made. What parents worry about more is when their children are injured through no fault of their own. Bicycle and pedestrian accidents are all too common in Mississippi and kids are often the victim of someone else’s negligence.
Most adults understand that if they have been injured because of someone else’s negligence, then the party at fault may be required to pay the injured person’s medical expenses, lost wages and often an extra payment for pain and suffering experienced. The same basic rules extend to minors who are injured through the negligent actions of others but with some understandable differences in procedure.
Who files a personal injury claim if a minor is injured?
Most minors cannot be expected to file a personal injury claim all by themselves, although this does depend on the age of the young person concerned. In Mississippi, the definition of a ‘minor’ is anyone under 21, three years older than in most other states. By the time someone gets to that age, they should be able to understand how to proceed with a claim, preferably with the help of an experienced personal injury attorney. However, parents or guardians of any minor are able under state law to file a claim on behalf of that young person. The usual damages claimed are similar to the damages claimed as an adult, with slight differences.
Damages might include:
- Payment of all medical expenses due to the injury, including all future identifiable medical expenses;
- Payment of parents’ or guardians’ lost wages if the child needs parental care during working hours;
- Payment of an amount (referred to as ‘non-economic’ damages) to compensate for the pain and suffering experienced by the child. This is often determined using a formula, such as a multiple of the economic damages.
Because some injuries may lead to permanent disability and long lasting need for support and ongoing medical attention, it is very important that the child’s long term needs are identified correctly by experts and a calculation of the damages claimed done so that the minor’s long-term welfare is not jeopardized.
Distribution of funds recovered through a successful personal injury claim
Funds obtained through a successful personal injury claim are normally deposited with the adult who has filed the claim, but generally this is not possible in the case of a claim on behalf of a minor. The payment is first approved by a state chancery court, which is designated to handle child and family law affairs. The court will direct that any funds obtained by a claim or lawsuit are deposited in a special guardianship account. This account is designed to ensure that the money is used appropriately for the purposes it was originally claimed for and not used unwisely by either the minor or the parents or guardians. Funds held by such an account are usually only released by petition by the parents or guardians or when the minor reaches the age of 21.
Comparative fault in the case of a minor
Mississippi uses a comparative fault mechanism to apportion personal injury payments. If an adult is involved in an accident, they are entitled to receive 100% of the claim if it can be proved that the other party was 100% at fault. Of course, many accidents are more complicated than that and in some cases, a court may decide that the plaintiff receives less than the full amount claimed because it is determined that there was shared fault. Under Mississippi law, an injured party may obtain damages on a proportional basis up to the point where they are more than 50% to blame for the accident.
With minors, this becomes more complicated. The courts tend to take into account the age of the minor who is injured and their level of maturity. To take an example, a five year old child who runs out across a road from between two parked cars is less likely to be blamed than an 18 year old, despite the fact that they are both technically minors. In the case of younger children who are injured, the court may also consider the level of care and guidance by the parents or guardians. In other words, if it is determined that a young child may not have been injured if it had been cared for better then the amount claimed through a personal injury claim may be reduced because of the proportion of blame ascribed to the adults responsible for the child rather than because of the actions of the child.
Call the Diaz Law Firm for an appointment if your child has been injured because of someone else’s negligence
If your child has had an accident and has been injured, please call the Diaz Law Firm office for an appointment to discuss your legal options at 601-607-3456.