Injury claims involving children present a unique set of challenges and complexities. Due to their age and vulnerability, the law has numerous safeguards in place to protect children. Among other things, special consideration must be given to the role of the adult that will represent the interests of the child.
Guardian / Conservator / Guardian Ad Litem (GAL)
When a minor is a party to a lawsuit, a court-appointed guardian, conservator, or guardian ad litem (GAL) must appear on the minor’s behalf. If legally qualified, a parent can serve the role of conservator, guardian, or GAL. However, a parent is not always the best choice. For instance, if the parent was with the child at the time of the incident that resulted in injuries to the child, the defendant may try to blame the parent. In such a case, someone other than the parent must be considered. A professional fiduciary is often the best choice. A professional fiduciary typically has more experience with personal injury claims and legal requirements. Moreover, if the case is likely to go to trial, the presence of a professional fiduciary may increase the jury’s confidence that any monetary award will actually benefit the child rather than a parent.
If the minor does not have a conservator or guardian, then the child’s attorney must ask the court to appoint a suitable person to serve as a guardian ad litem (GAL). When a GAL is necessary, it is important that the proper procedures are followed. If a GAL is not appointed in accordance with the statutory requirements, the litigation, as well as any settlement, may be held invalid. The petition to appoint a GAL is less costly and time consuming than appointment of a conservator. However, the GAL is not authorized to enter into a settlement on behalf of the minor. Instead, a conservator must be appointed and court approval must be obtained for any proposed settlement. A conservator is also required to manage the child’s settlement funds.
Settlements Less than $25,000
As noted above, appointment of a conservator is usually required to finalize a settlement involving a minor’s claim, but this can be an expensive and time-consuming process. Fortunately, ORS 126.725 creates an exception for settlements of less than $25,000. This statute permits a person having legal custody of a minor to settle the minor’s claim against a third party without a conservator if: (1) the amount of the payment to the minor is $25,000 or less (not including medical expenses, liens, reasonable attorney fees, and costs); (2) the settlement funds are deposited directly into a federally insured savings account that earns interest in the sole name of the minor; and (3) the person having custody executes an affidavit stating that the minor will be fully compensated by the settlement, or there is no practical way to obtain additional amounts from the defendant.
The funds in the savings account may not be withdraw until the minor becomes 18 years old, or as otherwise provided by court order.
Parent’s Claim for Medical Bills
An injury claim involving a child will often include past medical bills, and possibly future medical expenses as well. If the parents file a written consent, they can pursue reimbursement for these medical expenses as part of the child’s injury claim. It is important that the proper procedures are followed, or else the parents’ claim for medical expenses may be disallowed.
Comparative Fault of Parents / Parental Immunity
A defendant may claim that a parent bears full or partial—“comparative”—fault for a child’s injuries. In such instances, after getting sued, the defendant may turn around and sue the parent in a so-called “third-party” claim. When that happens, the parent will need to retain separate legal counsel.
When a defendant blames a parent for the child’s injury, the doctrine of parental immunity may apply. The parental immunity doctrine refers to a common-law principle which held that children could not sue their parents, and parents could not sue their children, for personal injury claims. Oregon recognizes a limited form of parental immunity. In general, a parent is not liable for a child’s injuries unless the parent’s conduct is considered “palpably unreasonable.” The term “palpably unreasonable” is akin to the term “gross negligence,” which is typically defined as a conscious indifference to, or reckless disregard for, the rights of others. A “mere inadvertence, brief inattention, or error in judgment” does not constitute gross negligence.
Extended Statute of Limitation for Minors
ORS 12.160 “tolls”—in other words, suspends—the running of the statute of limitations for a cause of action held by a minor for up to five years, but no more than one year after the minor reaches age 18. For example, if a minor has a cause of action stemming from an accident that occurred when the minor was seven years old, the statute of limitation would be tolled until the child is 12 years old. If a minor has a cause of action stemming from an accident that occurred when the minor was 16, the statute of limitation would be tolled until the minor turns 19. The appointment of a GAL (or a conservator or guardian) does not change the tolling effect of ORS 12.160. For claims arising after January 1, 2008, a parent’s claim for medical expenses (as discussed above) is also tolled for the same period.
If the minor’s claim is against a public body, such as a state or local government agency, it is unclear under Oregon law whether the claim is tolled. If you are contemplating such a claim, it is important to contact qualified legal counsel immediately.
Do Not Delay
If your child has been injured, it is important to act quickly. Critical evidence can be lost and memories can fade if the claim is not investigated promptly. Additionally, the law provides strict deadlines for bringing claims. If you wait too long to take legal action, the right to seek compensation may be lost.
Attorney Rob Kline is experienced in pursuing claims involving injuries to children, and he can guide you through this process. Call Rob today and request a confidential, free case evaluation.